Hollie Ramirez-Power, who was convicted earlier this year for a fifth DWI, should get a new trial because the chief witness against her lied on the witness stand, her attorney told 22nd Judicial District Court Judge Billy Burris in Covington on Wednesday.
Power, who has four previous DWI convictions, two previous vehicular negligent injury convictions and two previous convictions for possession of illegal drugs, faces as much at 60 years in prison under the state's habitual offender law.
However, attorney Cameron Mary, who is representing the 38-year-old Ponchatoula woman, said the Madisonville police officer who pulled her over in late 2016 made false claims about his employment history during her trial.
Marcus Bergeron testified that he had formerly worked for the St. Tammany Parish Sheriff's Office, Mary said, but documents from that agency said he never worked there although he applied many times.
Bergeron also testified that he had never been fired, Mary said, but Causeway Police Department records show that he was terminated during his probationary period there as a new hire for failing to show up for a shift.
Mary described Bergeron as the prosecution's star witness against his client and argued that his credibility would have been shattered if his job history claims had been challenged in court.
Mary also cited the judge's decision at the trial to exclude three witnesses who would have testified that Bergeron made false statements in other DWI investigations. The prosecution had argued that calling those witnesses would have confused the jury, and the judge agreed. But Mary said that testimony would have further affected the jury's view of Bergeron's credibility.
Mary also argued that his client's constitutional rights were violated when her refusal to take a drug screening at the jail was used against her at the trial.
State law says that information from jail drug screenings cannot be used in court, Mary said, calling Judge Peter Garcia, Burris' colleague on the 22nd Judicial District Court bench, to the stand to talk about the state law, which he had helped draft.
Mary accused the prosecution of bringing in testimony that they knew was not allowed in an effort to prop up a weak witness.
But Assistant District Attorney William Macke said Bergeon's claim that he worked for the St. Tammany Parish Sheriff's Office from 1999 through 2001 is not inconsistent with his employment records.
Bergeron applied for a job with the Sheriff's Office on Feb. 3, 2000, Macke said, arguing that it's not reasonable to accuse someone of perjury for getting a date wrong by 34 days some 18 years after the fact.
After he applied, Bergeron was awaiting background tests that are standard for such a job, Macke said, and his application was approved in September 2000. He entered the reserve academy in January 2001 but dropped out on Jan. 15, 2001.
Macke called those minor inconsistencies that would not have changed the jury's mind.
He added that another officer was at the scene when Power was pulled over. That officer testified that Power's speech was slurred, that she was jittery and couldn't stand on one leg when asked, backing up what Bergeron told the jury, Macke said.
Macke also argued that Power's attorney during the trial, Nick Noriea, did not object to the introduction of her refusal to take a drug screening soon enough during the proceedings, and therefore she can't raise that objection now, after the fact, to seek a new trial.
He said that Noriea opened the door to testimony from a nurse at the jail by questioning Bergeron about his failure to administer a drug test to Power.
Mary scoffed at the suggestion that Bergeron's testimony involved only minor inconsistencies. Applying for a job isn't the same as being hired, he said, adding that he had applied for a job with the United Nations war crimes tribunal. Based on the prosecution's theory, "I should be able to collect a pension from the UN by now," Mary said.
If Bergeron was brazen enough to lie about something so easily found out as his job history, Mary said, what else would he have lied about to obtain a conviction?
Burris told the attorneys that he would render a decision on the motion for a new trial by Friday.