Ethics Redefined

 Posted on June 04, 2012 in Uncategorized

In closing, do not confuse deception with lying during court proceedings, falsifying official documents and evidence or lying during internal investigations.No police administrator would tolerate this behavior which destroys an officer's ability to perform their official duties in a moral, ethical and just manner.

That's what Daytona Beach Police Chief Michael Chitwood told the Daytona Beach News-Journal (H/T Scott Greenfield) about police officers' lies in the course of an investigation, and why they are different than lies in court.

The background: this order by Volusia County, Florida Circuit Judge Joseph G. Will, granting a motion to suppress in a swearing match between a cop and the defendant's mother because the cop had shown himself to be a liar by lying to the mother in order to get into her house. I quote at some length, but read the entire order:

The state does not prevail, however, on the purely factual issue of credibility. The mother of the defendant was not shown in any manner to be a person unlikely to tell the truth. The officer, on the other hand, clearly lied to gain access to her home. A person who admits his lie in the opening seconds of his testimony before the court cannot be heard moments later to say that his first lie was his only lie. Culling the lies from the truth in the testimony of a single witness is, indeed, an exercise in futility. This court suggests that none of us has the ability to parse the truth that well, and it would be intellectually dishonest to even tread that path. As discussed above, there is a significant sacrifice by the state when it relies upon dishonest police conduct at the base of its prosecution. Once the character or reputation of any witness has been damaged, it is difticult to reconstruct, in whole or in part. As we all know, a little boy may falsely call "wolf' only so many times before no one listens. A simple statement, it is hoped, that does not fall upon deaf ears in the law enforcement community.One is tangentially reminded of the story of the man who offered a woman one million dollars for sex. She agreed, which led him to ask if she would agree for ten dollars. She angrily asked: "What do you think I am?" He replied: "We know what you are. We are just haggling over price." It is embarrassing, at best, in this or any other case to be haggling over the degree or extent of truthfulness in the testimony of an officer of law. We shame ourselves when we entertain the notion.

The difference, according to Chief Chitwood? Lying to the defendant's mother was "moral, ethical, and just," presumably in a way that lying during court proceedings is not. Somewhere between the two, apparently, is a line. Chitwood may have his own line, and as a police administrator might not tolerate officers crossing it, but we don't know where Chitwood's line is, and he can't know when officers have crossed it. If "lying to the court" is over the line, we know that cops routinely cross the line without being sanctioned by the police administrators.

As criminal-defense lawyers, we see cops lying under oath often. Usually we are certain of it-because nothing else makes sense-but can't prove it. Occasionally we can prove it and nobody seems to care. It's not a surprise, really. The courts have told police officers that it's okay to lie in aid of their goals; for most people in 21st-century America the oath provides no real impediment to their doing so in court.

Nobody will convince me that lying to a little old lady to get into her house to search for drugs is moral, ethical, or just. It's legal, sure. But just as not everything illegal is wrong, not everything legal is right. Anyone who argues that something is ethical because it is legal is steering by a broken compass.

In his letter to the paper Chief Chitwood spends eight paragraphs describing the law-cops can lie-and only mentions morality, ethics, or justice in the last five words. This seems to be his argument: "it's legal, so it's ethical."

If that weren't his argument, it'd be hard to see what ethical principle would allow officers to lie to the little old lady but not to Judge Will. So there must be some principle (the end justifies the means?) and exceptions to that principle. Which is fine, but talk of ethics is meaningless without an undrestanding of what the principle is and what the exceptions are.

If it's okay to lie to the defendant's mother, is it okay to lie to the mailman? to a complainant? the defendant's lawyer? to the prosecutor? to the judge (but not under oath)?

If Chief Chitwood is going to talk about ethics, he owes his employers an explanation of what he means, and where he draws the line. And he owes them an explanation of why he might think the officer shares his view.

If I were to introduce myself to the factfinder and say, "I lied to the prosecutor about this case, but I'm not going to lie to you," do you think they'd believe a word I said? If the prosecutor told them, "I lied to Mr. Bennett about this case, but you can trust me," would they? How about the judge. Do you think the jury feels confident about what the judge tells them if he tells them he's told other lies in the course of this case, but won't lie to them? Why would Chief Chitwood expect cops to get any different treatment?