GREENFIELD — A former Greenfield police lieutenant is challenging the verdict that kicked him off the police force, claiming key evidence used against him in a bribery trial was gathered illegally, but his attorney failed to show that to a jury.
Former Lt. Terry Austin, who served one year of home detention after bribing fellow officers to pull over his ex-wife in April 2014, has asked the court to overturn his two felony convictions — bribery and official misconduct, citing poor performance on the part of his lawyer.
In a court motion filed Wednesday, John Tompkins, Austin’s new attorney, argues that his client’s former legal counsel — Bob Elsea of Greenfield — failed to spot a violation in the gathering of evidence that could have spared Austin from a guilty verdict and loss of his career.
Austin was convicted of bribery and official misconduct, both felonies, in a two-day trial late last year after a dispatcher reported him for offering at least three fellow officers a $200 steak dinner if they would pull over his ex-wife and tow her car because she was driving with a suspended license.
A warrant issued by a Hancock County judge in the initial investigation permitted police to seize Austin’s cellphone but not — a judge later ruled — to search its contents. That illegal search provided the prosecution with evidence that was essential to the jury’s guilty verdict, Tompkins said.
“When they searched it, they were violating the authority that the warrant gave them,” Tompkins said. “In addition to being illegally obtained, they presented the evidence to the jury and that was never challenged by his trial attorney in trial court.”
Elsea, Austin’s attorney during the initial proceedings, did not return calls for comment on the allegations.
Tompkins said he couldn’t raise the issue during the appeals process last month because it was never addressed in the original trial proceedings. Appellate courts seek to evaluate whether a person was given a fair trial; they do not weigh new evidence.
Austin declined to comment on the motion to the court, but Tompkins said his client hopes to have the ruling reversed to help him gain employment. He couldn’t confirm whether Austin hopes to become a police officer again.
Hancock County Prosecutor Brent Eaton said he’s aware of the petition and intends to oppose it.
“We believe the conviction should stand,” he said. “We take all of these petitions seriously, but ultimately, it’s the judge’s decision.”
Eaton’s office has 30 days to respond to the petition. After that, a judge will weigh the facts and the law to decide whether a violation was made.
“This will play itself out over the next couple of months,” he said.