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FOR THEIR EYES ONLY: police testilying becomes commonplace with institutional reluctance to uncover corruption

On Behalf of | Dec 18, 2017 | Firm News

Police departments are widely admired for their overall effectiveness; most jurors find officers more credible than persons accused of crimes.  Yet, there are uncomfortably too many like the above New York Times story.  For instance, in 2013, Newsday reviewed more than 900 lawsuits, 7,000 pages of county legislative transcripts, union agreements and 1,700 proposed state laws to find more than 200 police officers have shot innocent people, falsified official reports, manipulated DWI arrests to increase overtime pay and lied to district attorneys and investigators.  Police misconduct hidden from public by secrecy law, weak oversight.  Newsday, Dec. 18, 2013.

As one commentator discussing police officer veracity indicates: some experts on police practice treat lying by police (police perjury is referred to by officers as “testilying,” a term coined by the Mollen Commission (1994), formally known as The City of New York Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department) at trials and in their paperwork as the “norm,” “commonplace,” or “routine.”  Michelle Alexander, Why Police Lie Under Oath, N.Y. Times, Feb. 2, 2013 (“In 2011, [in New York City] hundreds of drug cases were dismissed after several police officers were accused of mishandling evidence. That year, Justice Gustin L. Reichbach of the State Supreme Court in Brooklyn condemned a widespread culture of lying and corruption in the department’s drug enforcement units . . . ‘this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.’”).  The Mollen Commission concluded in its July 1994 report that:

Today’s corruption is not the corruption of Knapp Commission days. Corruption then was largely a corruption of accommodation, of criminals and police officers giving and taking bribes, buying and selling protection. Corruption was, in its essence, consensual. Today’s corruption is characterized by brutality, theft, abuse of authority and active police criminality.  Cf. The Rampart Scandal (widespread police corruption in the Community Resources Against Street Hoodlums (CRASH) anti-gang unit of the LAPD’s Rampart Division in the late 1990s).

The commission found that if corruption itself was not systemwide, the department’s failure to address it was: “We find as shocking the incompetence and the inadequacies of the department to police itself,” Milton Mollen, the commission chairman, said as the panel released an interim report on its principal findings. Will They Be Followed?”  Sadly, the commission noted that there was a “reluctance to uncover and effectively investigate corruption” and that “no one seemed to care.”  Instead the report found that “a deep-rooted institutional reluctance to uncover corruption in the department.” It said the department had “abandoned its responsibility to insure integrity” and had failed to instill in supervisors, from the highest commanders to sergeants in the field, the message “that fighting corruption must be one of the department’s highest priorities.  From the top brass down to local precinct commanders and supervisors,” the commission said, “there was a pervasive belief that uncovering serious corruption would harm careers and the reputation of the department.”

Ms. Alexander explains that “[r]esearch shows that ordinary human beings lie a lot (it should be noted that of professions, nurses are thought to lie the least;  labor union leaders, lawyers, congressman and lobbyists the worst) — multiple times a day — even when there’s no clear benefit to lying. Generally, humans lie about relatively minor things like “I lost your phone number; that’s why I didn’t call” or “No, really, you don’t look fat.” But humans can also be persuaded to lie about far more important matters, especially if the lie will enhance or protect their reputation or standing in a group.  The natural tendency to lie makes quota systems and financial incentives that reward the police for the sheer numbers of people stopped, frisked or arrested especially dangerous.  In 2010, a New York City police officer named Adil Polanco told a local ABC News reporter that “our primary job is not to help anybody, our primary job is not to assist anybody, our primary job is to get those numbers and come back with them.” He continued: “At the end of the night you have to come back with something.  You have to write somebody, you have to arrest somebody, even if the crime is not committed, the number’s there. So our choice is to come up with the number.”

Moreover as Senior District Judge Jack Weinsten responded to the NYPD official who took the position that the problem of perjury is not pervasive within the department, and that the tendency of police officers to fabricate testimony is no greater than that of non-police witnesses in Cordero v. The City of New York, 15-cv-3436, such statement misses the point. “Police officers, unlike civilians, have the power to terminate constitutionally protected liberty; with this power comes great responsibility; as well as the need for appropriate oversight.”  The basis of that lawsuit was “the failure to take reasonable steps to control lying by police officers is a policy of the NYPD.”  The judge allowed Cordero to proceed against the city on grounds that the city failed “to take reasonable steps to control lying by police officers,” citing Monell v. Department of Social Services, 436 U.S. 658.

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.”

Alexander looks at two major circumstances where this occurs.  The first is in the context of drug arrests.  She quotes a former San Francisco police commissioner as saying police perjury to justify illegal dope searches is “commonplace.”  The former commissioner further describes the process as “the routine way of doing business in courtrooms everywhere in America.”  Furthermore, in 2011, hundreds of drug cases were dismissed due to police corruption and lying.   Additionally, the Bronx District Attorney discover that a high number of people were being falsely arrested for trespassing at housing projects.  Alexander explains that “Jeannette Rucker, the chief of arraignments for the Bronx district attorney, explained in a letter that it had become apparent that the police were arresting people even when there was convincing evidence that they were innocent. To justify the arrests, Ms. Rucker claimed, police officers provided false written statements, and in depositions, the arresting officers gave false testimony.”  The second situation arises where there is pressure to meet arrest quotas.  In New York, police officers felt pressure (denied by the Police Commissioner) to arrest someone even if the crime is not committed.  In addition, Alexander notes that the number of arrests may impact whether state and local law enforcement agencies receive federal grant program funding.  Agencies feel that the funding will cease if the numbers are not up to expectations.

Keane asks why do police, whom we trust as role models of legal conduct, show contempt for the law by systematically perjuring themselves?  The first reason is because they get away with it.  There is evidence to support Keane’s assertion.  Sadly, there are little consequences for a police officer who lies on the witness stand.  Police departments do little to detect, combat or punish these police lies.  For instance, Cook County State’s Attorney Anita Alvarez, in February 2014 overruled a recommendation to prosecute two police officers who had freely admitted to lying about a shooting case.  “It’s a powerful example of State’s Attorney Alvarez’s refusal to address systemic perjury by Chicago police,” says Craig Futterman, a civil rights attorney and professor at University of Chicago Law School who reviewed the case at Salon’s request.

Police also know that in a swearing match between a drug defendant and a police officer, the judge always rules in favor of the officer. Often in search hearings, it is embarrassingly clear to everyone – judge, prosecutor, defense attorney, even spectators – that the officer is lying under oath. Yet nothing is done about it. There are rare cases in which the nature of the testimony and the physical evidence make it absolutely impossible to credit an officer’s version and the judge must rule the search illegal. When this happens, the judge rules hesitatingly and grudgingly for the defense. Indeed, judges sometimes apologize to the officer for tossing out illegally seized evidence where the cop has just committed felony perjury in the judge’s presence. Another reason is the nature of most drug cases and the likely type of person involved. Usually police illegally enter a home, search it and find drugs. The defendant is poor, uneducated, frequently a minority, with a criminal record, and he does have drugs. Police know that no one cares about these people.

Now you tell me where that leaves someone accused of a crime?  A false report leads to a false arrest which then puts the defendant in a bind.  As Alexander noted above, the jury will most likely believe the officer’s version of events.  At this point, the defendant may also feel pressure to falsely plead guilty to the crime.  Even if the defendant has committed a crime, the officer’s lying may result in a more serious charge and additional prison time.  But the main reason is the drug war.  A cops professional advancement depends on nabbing dopers.  Narcotics officers promoted to top levels in the police department despite contempt for the law shown by bullying, brutality and perjury in carrying out illegal searches and arrests.  So the modern narcotics officer is just following a well-worn path.

With resources scarce in the criminal system, can the criminal justice system afford to continue operate this way?   Alexander sums it up best when she writes that the “fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, “get tough” mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.”