what to do when police lie and witness lies
The Police Lie. All the Fourth dimension. Can Anything Cease Them?
Would the criminal justice organization collapse if cops were forced to tell the truth?
Christopher Parham was grocery shopping for his boss when Henry Daverin, a plainclothes NYPD officeholder, approached him. Daverin accused Parham of driving recklessly on an illegal scooter without a helmet; a few minutes later, Parham was writhing in hurting on the sidewalk outside. What happened during those few minutes was a matter of dispute. The NYPD said that Parham, a Blackness 19-year-old, had violently resisted abort. Daverin and his colleagues said that they did not use force against him even though Parham had gruesome Taser burns all across his back.
Then surveillance video of the episode emerged—and proved that nearly every particular of the NYPD'south account was false. Parham had immediately cooperated with Daverin; he did not resist arrest. However, Daverin and his colleagues had assaulted Parham, tackling him to the basis, so Tasing him over and over once again. Later on Parham's attorneys released the video—and his local representatives raised concerns—the district attorney dropped all charges. Daverin, who had been named in at to the lowest degree 10 other misconduct lawsuits, was never disciplined, either for brutalizing Parham or for lying about it. Two years later, he remains on the force.
The constabulary reaction to George Floyd's murder, likewise equally the resulting nationwide protests, introduced many Americans to the fact that constabulary enforcement officers lie. After officer Derek Chauvin killed George Floyd, the Minneapolis Police Department issued a statement falsely claiming that Floyd "physically resisted officers" and excluding the fact that Chauvin knelt on Floyd'due south neck for nearly nine minutes. When Buffalo constabulary officers violently shoved a peaceful 75-yr-old man, their department falsely asserted that the victim "tripped and cruel" during "a skirmish involving protesters."
This tendency to lie pervades all constabulary work, not but loftier-profile violence, and information technology has the power to ruin lives. Law enforcement officers lie so frequently—in affidavits, on post-incident paperwork, on the witness stand—that officers have coined a discussion for it: testilying. Judges and juries generally trust police officers, especially in the absence of footage disproving their testimony. As courts reopen and convene juries, many of the same officers now confronting protesters in the street will go back on the stand.
Defence force attorneys around the country believe the practice is ubiquitous; while that belief might seem cocky-serving, information technology is borne out by footage captured on smartphones and surveillance cameras. Yet those best positioned to crack downward on testilying, law chiefs and prosecutors, accept washed picayune or nothing to terminate it in almost of the land. Prosecutors rely on officer testimony, true or non, to secure convictions, and only acknowledging the trouble would require the government to admit that there is near never real penalty for police perjury.
Officers accept a litany of incentives to lie, but at that place are two especially powerful motivators. Beginning, near prove obtained from an illegal search may not be used confronting the defendant at trial under the Fourth Amendment's exclusionary rule; thus, officers routinely provide faux justifications for searching or arresting a civilian. 2nd, when police break the law, they tin (in theory) suffer real consequences, including suspension, dismissal, and civil lawsuits. In many notorious testilying cases, including Parham'south, officers blame the victim for their ain violent behavior in a bid to justify asymmetric apply of force. And departments will reward officers whose arrests lead to convictions with promotions.
2 major cities are taking two different approaches to the problem. In New York City, prosecutors keep secret databases of unreliable police officers, though simply two boroughs really prohibit those officers from taking the stand up. Without further reforms, however, this approach fails to accost the underlying problem: Prosecutors are reluctant to charge officers of lying in the first place, or to investigate an officer's claims to acquire if they align with reality. As a result, an officer who lies convincingly can evade the list indefinitely. In San Francisco, by contrast, District Attorney Chesa Boudin has sought to eradicate the incentives that lead police to prevarication in the first identify. Both cities are witnessing an experiment play out in real time: What happens when the criminal justice system can no longer rely on its enforcers to tell the truth?
The New York Police Section provides a case study in how the criminal justice system rewards lying. I NYPD officeholder, David Grieco—commonly known as Bullethead—has been sued at least 32 times, costing the city $343,252, for civil rights violations, including excessive force and fabrication of prove. Nevertheless Grieco was promoted and prosecutors continued to telephone call him to the stand long later a slew of his victims blew the whistle on his fierce and lawless beliefs. Judges continued to rely on his word to lock up defendants. And Grieco'southward proper noun did not announced on Brooklyn District Attorney Eric Gonzalez'south long-hole-and-corner list of officers with known credibility problems.
Grieco is a symptom of a much deeper problem. Widespread lying about Fourth Amendment violations is at least equally old equally the exclusionary rule itself. The Supreme Court applied this rule nationwide in 1961'due south Mapp v. Ohio, preventing state prosecutors from relying upon illegally obtained evidence to secure a conviction. Mapp spawned a surge in "dropsy" cases: Rather than admit to an illegal search, police claimed that defendants simply dropped drugs on the basis in front of them, since bear witness found in "plainly view" can exist used at trial. Studies of criminal trials in New York Urban center found that, after Mapp, police force began lying most arrests to ensure that evidence would be admissible. In the early 1970s, the New York district attorney even told the New York Court of Appeals that, since Mapp, officers lied on the stand up in a "substantial" number of "dropsy cases." Two decades later, the Mollen Commission—a famous investigation of the NYPD—found that officers routinely engaged in perjury and falsification of records, "the nearly common class of police abuse."
When NYPD officers are accused of illegal behavior, the department itself usually investigates, then conceals its findings and imposes, at worst, a slap on the wrist, like brief paid get out. Prosecutors could separately investigate, only they take little incentive to question an officer's story: If they know an officer is lying, they cannot legally rely on his testimony; if they remain in the dark, they can still utilise his perjury to clinch a conviction. Moreover, prosecutors and law piece of work together to put defendants behind bars, developing a team mentality that prevents prosecutors from scrutinizing officers' testimony with advisable skepticism. As long as officers' lies cannot be proved fake, prosecutors accept little reason to question their account of events. As a New York assistant commune attorney told the Mollen Commission: "Taking money is considered dirty, but perjury for the sake of an abort is accustomed. Information technology'south become more casual."
Occasionally, the system will catch these lies. Yvette, an Egyptian American who lives in New York City, believes cantankerous-test of mendacious officers likely secured her acquittal. (Her proper name has been changed at her request to protect her from retaliation.) In 2017, Yvette witnessed iii NYPD officers arresting the owner of a Brooklyn hookah lounge. Every bit the police were detaining him, he handed Yvette his telephone and asked her to phone call his mom. The officers promptly "attacked" her, she told me, severely damaging her knee. When she begged for an ambulance, the officers ignored her. Yvette eventually chosen 1 herself and learned at the hospital that the attack tore her ACL. When 2 officers visited her bedside, she asked if they were going to take her statement. They explained that they were in that location to arrest her for allegedly attacking the officers at the hookah lounge.
What these officers did not know was that Yvette had recently recovered from multiple surgeries on her knee, one of which resulted in a staph infection. It had been a mere two weeks since Yvette learned how to walk without a cane once again. At present the NYPD was accusing her of a violent assault.
At a three-day bench trial, Yvette'southward public defender, Theodore Hastings, grilled the cops about their account. Ii officers claimed that Yvette had attacked them at the verbal same time, a physical impossibility. A tertiary alleged that Yvette had run about 500 feet before lunging at the officers.
Yvette herself also testified. "The guess heard my story and understood and felt my pain," she told me. "She saw I actually wasn't lying." The judge acquitted Yvette of all charges.
But hoping a judge will vindicate the truth is a luxury most wrongfully accused people cannot afford. Not everyone has a medical record or video footage to prove their account. If an individual goes to trial, they have a right to access the arresting officeholder's record of misconduct because it could help testify their innocence. But the vast bulk of criminal cases exercise not go to trial, and until recently, defense force attorneys in New York Urban center could not obtain officers' disciplinary records due to a notorious shield chosen Department 50-A. The state repealed this law in June, and Mayor Bill de Blasio has since promised to publish an online database of police disciplinary records. With New York Urban center's prosecutors still fighting to muffle their exercise-not-phone call lists, information technology will now be left to defense attorneys, activists, and the public to track untrustworthy officers.
Across the state in San Francisco, newly elected District Chaser Chesa Boudin is taking a dissimilar approach. Boudin, a former public defender and staunch critic of mass incarceration, confronted testilying caput-on. "Police are allowed to lie and get away with it over and over and over once again in matters big and small," he told me. "I can call up of dozens of examples where police were either able to get away with—or faced no consequences if they were impeached and called out on their dishonesty. When y'all have a organization of that kind of impunity, it snowballs. Information technology teaches, encourages, and enforces bad behavior."
Boudin has minimal command over the SFPD itself. But he has created a robust "do non call" listing of officers whom his office volition not call to the stand as a witness. Officers who are caught testilying go on the list, every bit do those who commit other forms of misconduct. Boudin has also mandated careful assessment of charges like assaulting an officer and resisting arrest. "When police use excessive force or brutalize someone," Boudin said, "the nigh common result is that the police arrest the person and ask prosecutors to accuse that person with resisting abort or assaulting an officer." He now requires his staff to review video footage of the incident before filing those charges. "It's non because we call back officers are lying nigh of the time," he said. "We only know that, until we watch video footage, nosotros have no ability to distinguish between a testilying police study to cover upwardly excessive strength and legitimate criminal action of assaulting an officer."
A third reform may accept more direct practical consequences for victims of routine testilying designed to avoid the exclusionary rule. Too oftentimes, officers find a trivial reason to stop someone, or just make one up, then observe drugs or weapons in the ensuing search. The target of these pretextual stops is usually a person of color. "Nosotros know 'driving while black' is a reality for far besides many people," Boudin said. "If you take dark skin, you're more likely to become pulled over, more probable to become searched, and more likely to become arrested. Yous're also more than likely to take force used during your abort than if you're white."
To disincentivize this behavior, Boudin'southward role stopped charging any contraband case that grew out of a pretextual cease. Every bit an instance, he cited searches initiated later a stop for some minor traffic criminal offense. "Our vehicle code makes it possible for police to legally stop any auto," Boudin said. "We all know that most drivers practice not come to consummate stops at finish signs and most police don't enforce that law well-nigh of the fourth dimension." If the police force do pull over a driver for an incomplete end, and the encounter results in an arrest for possession of drugs or guns, his role will not bring charges.
Ilona Solomon, a San Francisco public defender and quondam colleague of Boudin'due south, admires his work but remains skeptical that he has the power to change the metropolis's broken law enforcement apparatus. "In that location is an entrenched civilisation in the DA's role that is very resistant to reform," Solomon told me. "Chesa can't prepare all the issues immediately, and some things he doesn't have control over."
Still, in his seven months on the chore, Boudin has made headway in the face up of sustained opposition from the SFPD. Solomon pointed to two contempo cases involving the aforementioned officeholder, Robert Gilson. In 2017, a California estimate found Gilson had "inverse his testimony" regarding a search and abort, deeming him "not reliable." Yet prosecutors connected to call him to the stand, and judges continued to paper over his inconsistencies.
In one recent instance, Gilson stopped a Samoan man who was belongings a bag of marijuana, which is legal in California. Later on a lengthy search, the officeholder discovered bindles of cocaine. Gilson'south reason for the stop shifted: At the time, he said he wanted to search "bulges" in the man'due south pocket; later, he testified that he sought to determine if the human being was property an illegal amount of marijuana. A judge accepted this reasoning and refused to suppress the cocaine. In another case, Gilson stopped a Black man, justifying the activeness because the man was jaywalking. After Gilson threatened to strip search the man, he let the officer search him, uncovering a small stash of cocaine. A gauge refused to suppress the evidence, crediting Gilson's testimony that he believed the human being was concealing drugs due to his worried "demeanor" during the search.
Solomon represented both men. She told Boudin that, in both cases, Gilson had engaged in breathy racial profiling. Boudin agreed and dismissed all charges. Notwithstanding, Boudin's role could not say whether it had placed Gilson on its "exercise not call" list, which is non public. The SFPD confirmed Gilson was assigned to field operations but said they could non comment farther on personnel matters.
Kate Levine, a Cardozo Law professor and one-time public defender who studies police accountability, told me she's skeptical that patchwork solutions like a "practise non call" list can ever stamp out testilying. Maryanne Kaishian, a public defender in Brooklyn, agreed, noting that information technology'south easy for "clean" officers to conceal the involvement of a known muddied cop by keeping his name off all paperwork. Nor do these lists remove officers' potent incentive to lie: Police are more likely to get promoted if they effect more arrests that result in successful prosecutions. Promotions come up with more than prestige and a higher salary. Prosecutors still have an incentive not to question officers' "blue lies."
To end testilying, Levine said, "I would entirely alter incentive structures." Officers would be rewarded for reporting on their colleagues' lies and scrutinized when their stories do not line upward. They would no longer exist able to coordinate their stories before testifying, a common procedure that lets them iron out potential inconsistencies. Nor could they watch bodycam footage before providing their version of events, another perk that'due south not provided to civilians. Prosecutors would be rewarded for rooting out unconstitutional behavior. Officers who lie, and prosecutors who tolerate them, would exist terminated immediately. In short, the arrangement would encourage police officers and prosecutors to focus less on winning cases and more than on post-obit the rules, even when a constitutional violation stands in the manner of a conviction.
What would happen if a metropolis really tried to eliminate testilying? I posed this question to Bennett Capers, a one-time federal prosecutor and Fordham Law professor who studies constabulary lies. "In all honesty, I think my initial reaction would be that the system cannot exist without it," he told me. "It would grind to a halt." Capers said that "run of the mill policing would accept to change. We are doing nigh xiii million misdemeanor arrests a twelvemonth. With a lot of those small crimes, in that location's fudging. Nobody'southward paying attention."
Law, in other words, would have to stop arresting and so many people for minor crimes. Once cities stopped deploying officers to harass misdemeanants, they could shrink their police force, reducing the number of encounters betwixt cops and civilians. Agencies might then dedicate those resources to investigative and detective work in order to build solid cases against suspects, thereby creating a college bar for which cases to pursue. Prosecutors would be forced to make a more than careful calculation most the adventure of bringing a case to trial and drib cases that rested on a search of dubious legality. In the brusk term, the legitimacy of the entire system might have a hit—though only because its participants confronted the illegitimate basis of so many convictions. Over time, however, the system might regain the legitimacy information technology lost with a preference for punishment over justice.
"We all wanted to see justice happen," Capers recalled from his fourth dimension every bit a prosecutor. "And law enforcement oftentimes thinks that, in the interest of justice, the rules get in the way. I'm non aware of ever proverb, 'Does this story sound quite right?' We benefited from minor lies."
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Source: https://slate.com/news-and-politics/2020/08/police-testilying.html
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