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On Behalf of | Jun 16, 2017 | Firm News

In cases where a judge has to make a determination of who is telling the truth between a criminal defendant and a police officer, no one would be surprised to hear the court will almost always believe the police officer.   But why?

The rules of evidence say all witnesses, even criminal defendants, are just as competent to testify as any other person.  State v. Albright, 96 Wis. 2d 122, 127, 291 N.W. 2d 487 (1980); Voight v. State, 61 Wis. 2d 17, 20, 211 N.W. 2d 445 (1973).  Likewise, saying police officers should automatically be believed over a criminal since in fact some police officers are criminals.  It can no longer be said that the officer testifying in court has no criminal conviction.  The dirty secret that some courts and prosecutors do not want to admit is that some police officers are  – ranking from street cop to captain – have been disciplined for violating the laws and ordinances they were sworn to uphold.  At least six officers disciplined by the department for illegal behavior suffered no legal consequences whatsoever. One was Reginald Hampton, accused of sexually assaulting two women he met on duty. Another was Mark Kapusta, suspended after a woman said he pointed a gun at her head during a drunken road-rage incident. Neither officer was charged or ticketed.  Gina Barton, “At least 93 Milwaukee police officers have been disciplined for violating law,”  Milwaukee Journal Sentinel.  Simply put, the system allows police officers to keep their jobs despite run-ins with the law.  “Both Sides of the Law,”  Milwaukee Journal.  Apparently, some judges are not aware that simply because someone has a criminal conviction is not a bar to someone being hired as a police officer.  Dan Zimmerman, “Milwaukee Hires Cops with Criminal Records.  And They’re Just Fine with That,” The Truth about

Not only are some cops criminals, but many cops lie when they testify.   Disclosures about rampant police perjury cannot possibly come as a surprise. “Testilying” — as the police call it — has long been an open secret among prosecutors, defense lawyers and judges.  Irving Younger, a onetime New York City Criminal Court judge, described police testimony in search and seizure cases this way: “When one . . . looks at a series of cases, [ it ] then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them.”  Alan M. Dershowitz, “Controlling the Cops; Accomplices To Perjury,” The New York Times.  Peter Keane, a former San Francisco Police commissioner, wrote an article in The San Francisco Chronicle decrying a police culture that treats lying as the norm: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.”  Michelle Alexander, “Why police lie under oath” The New York Times  To be sure, some judges no longer put on blinders when it comes to police officer testimony.  One judge railed against what some other judges and lawyers in the criminal justice system say occurs far too often: police officers shading the truth in subtle ways or outright lying from the witness stand. The result, they said, is that sometimes the innocent go to prison, the guilty go free and the criminal justice system is tarnished.  Steve Mills and Todd Lighty, “Cops rarely punished when judges find testimony false, questionable,”  Chicago Tribune.

So again, let me ask, why believe a cop over a defendant?  Interestingly, in Judicial Presumption of Police Expertise 130 HARV. L. REV. 1995 2017 Anna Lvovsky has given us an important and edifying window into the much contested phenomenon of judicial deference to the police.  As Lvovksy sees it, judges jumped from deferring to police testimony about specific facts in specific cases to deferring to police expertise generally.  Next, judges went from deferring to the actions of police in the executive realm to deferring to their views to support legislative enactments.  Finally, judges displayed serious analytic biases that caused them to just say yes when it comes to policing. “This expansion of police expertise undercuts a core safety net against overdeference in the Fourth Amendment context.”  Id.  at 2070-71.  Lvovsky explores what one might call the “politics” of judging the police.  The heart of this story is that — for whatever reasons — judges (especially elected judges) want to appear “tough on crime” and a key way to do that is by buying hook, line, and sinker into what the police say.  Id. at 2053-58.  Maybe judicial deference to police is not grounded in a misguided view of police expertise grounded in exposure to the police in all areas, but instead reflects a conscious desire not to buck what the police say — for any of a number of reasons, from thinking that the defendants they see are guilty as hell, to wanting to appease the public’s desire to be tough on criminals — and thus deferring to the police as experts in testimony.