Posted on
April 7, 2009 in
A DUI checkpoint in California (audio, H/T Troy McKinney).
A DUI stop in Texas (video from Dallas Morning News).
Phoenix police raid the home of a blogger who has been critical of the department (Photography is Not a Crime, via Simple Justice).
The Harris County DA’s Office answers the age-old question, “what does it take to get a cop indicted for shooting someone in this town?”
Radley Balko would — not without some irony — call these “isolated incidents;” his theory is “that this stuff happens way more frequently than what’s reported in the newspaper.”
Criminal defense lawyers know that Radley’s theory is correct. Sometimes you have to squint to see the differences between the cops and the most overbearing of our clients. Our clients don’t buy our credulity with our services, and we often recognize their stories as fiction, but as often we see that the police are making stuff up to make the case. Even a good judge can tell when the cops’ stories don’t make sense:
He talks about a gentleman running upstairs; but according to him nobody does anything about it, which I find almost incredible. I mean, I’ve seen too many of these cases. If the officer sees someone starting to run upstairs, they’re in there — (snapping fingers) — in a flash because that guy is likely to be going for a weapon. The last thing they want is someone up there shooting down the stairs at them.
The problem is in doing something about it. Pathologically, civilians tend to believe police officers over other civilians. Even when the police story is outrageous, “I find it almost incredible” is about as strong a denunciation as a judge will utter. The Blue Code of Silence puts police misconduct effectively beyond discipline. Why would a police officer not lie, cheat, and steal to reach his desired ends, whether those ends include the respect he thinks he deserves, privacy from being photographed in public, more overtime pay, or ridding the roads of drinking drivers?
All of these “isolated incidents” fit together like dots in a pointillist painting. The big picture? Give a man a sense of impunity and a badge, and he’ll find a way to abuse it.
A year ago, I would have thought these recordings to be remarkable. Now, I know first hand that they are not.
I wonder if the officer in the audio recording was actually disciplined. I doubt it. I do understand the suspect’s decision to consent to a breath test, as the officers would not allow him to go free without it. But there must be some legal remedy when suspects are arrested or detained without probable cause.
I doubt that it will ever happen, but I believe that whenever someone goes to trial and is acquitted by a judge or a unanimous jury verdict, they should be entitled to damages commensurate with what they might have suffered if they had been convicted.
For first-offense DWI cases, $10,000 would be fair — that would cover the DPS surcharge or the “driver responsibility assessment” (as it’s known in other states), as well as increased insurance costs, and the cost of hiring a lawyer. In cases where a guilty verdict could result in a long prison sentence, it is more difficult to determine what damages should be awarded to an acquitted defendant, but I’m sure that most innocent defendants would consider $35,000 per year reasonable, up to the minimum number of months or years that he or she might face in the event of a conviction. (Cases that are dismissed before trial should not, in most cases, result in a penalty against the state).
As it is now, the police and prosecutors have little or nothing to lose. Until they do, they will likely continue to pursue cases that they cannot hope to win. Unless and until the prosecution suffers serious pain when they lose a case, police will be happy to infringe on our rights in the pursuit of a one-word verdict.
Mark-
I’ve never posted over on your blog before, but I was interested in what you had to say about police. It’s true, there are police who abuse their discretion. In my 27 years as a police officer though, I never once planted evidence, abused a suspect or profiled someone because of their race. I worked in a LARGE department, so I’m sure someone within my department did. I never saw it and I would have reported it if I did. Not all cops plant evidence and violate rights, just like all criminal defense attorneys don’t fall asleep at counsel tables during a capital murder trial. Not all cops are corrupt and incompetent, just like all defense attorneys don’t lie to clients and promise them results they know they can’t deliver. Not all cops will take shortcuts to make a case, just like all defense attorneys won’t fail to subpoena witnessess, hire experts and actually read the prosecutor’s file before trial. I realize that as a police officer, I had life and death in my hands on a daily basis. As a defense attorney, so do you.
Thanks for the comment. There is a world — no, a universe — of difference between the criminal defense lawyer on the one hand and the guy with a gun and a badge on the other.
In 27 years as a police officer, did you ever know another officer to “testilie” (how many other professions have cutesy terms of art for perjury?) or falsify a police report? To whom did you report it, and what was done?
There are lots of bad lawyers, and people know it. In fact, they might overestimate the number of lawyers that are bad. People underestimate how deep the rot goes in police departments. People don’t want to believe that cops are human, and that (therefore) lots of cops are crooked because people have been taught since a very young age to go to the police for help.
I think the cop in that Dallas DUI stop needs to get fired just for being an a–hole! I can’t believe that guy! In my own (regrettably numerous) personal traffic stops and a couple years of busy criminal defense practice, I have never seen or heard anything quite like that. That cop should not be in any profession where he deals with people, not with an attitude like that.
Of course, it can be fun to go to trial when you’ve got video of a cop behaving like that. Reminds me of one case I tried where I got several apologies for my client out of the arresting officer when the arresting officer was on the stand, because of the language he used and the way he treated my client. (Client got convicted — no surprise to any of us. But he was pleased to get an apology from the cop. And then when he got sentenced by the judge, the sentence was approximately the same as the DA’s best offer. Maybe the Judge appreciated that although my client was the criminal, he wasn’t the worst person in the room.)
Mark-
You’re right. There is a world of difference between a police officer and a defense attorney. One has a few seconds to assess numerous facts and make split second decisions. Did the person that I just made eye contact with at 2am pull a gun out of his waistband or is that a cell phone? Do I have probable cause to pursue a felony suspect into a residence? Should I initiate a vehicle pursuit of an individual who I believe is intoxicated? The other one has the luxury of time. Resets are what attorneys do when they need time to gather more facts. What should officers do?
I have never “testilied” nor do I know of any other officer who did. I don’t know any criminal defendant worth going to prison for.
Mark-
As for your comment that people overestimate the number of bad lawyers and probably underestimate the number of bad police officers, let me ask you this. If a criminal defense attorney, on every case in which they are appointed (retained attorneys at least have an incentive) fails to even READ the DA’s file, are they not only failing their client but completely negating the notion of an adversarial system of justice? I can’t tell you how many times I have seen attorneys not even know what is in the state’s file during trial. Do you file grievances with the State bar when you see incompetent attorneys in the courtroom? At least as a police offier, I was accountable to a sergeant, lieutenant, captain, internal affairs, etc. Who holds defense attorney’s accountable?
I notice John Dough didn’t answer Mark’s questions.
For another thing, I should point out that “incompetence” (what we lawyers call ineffective assistance) is not a grievable matter. You can’t file a grievance for that one, John. However, criminal defense lawyers, even the best, are subjected to an enormous number of grievances, mainly frivolous, by their clients who get convicted. Also, they are routinely accused of ineffectiveness by those same clients. After all, the clients have to find someone to blame in order to try to get a new trial.
Unfortunately, prosecutors are not subjected to the same level of scrutiny — nor are cops. IAD is not nearly as aggressive as the bar is — it is, after all, an internal investigation. And, cops DO tend to cover for each other far more than lawyers do.
I’ve seen numerous cops caught in lies in court. I’ve yet to see one of them prosecuted for perjury. I’ve yet to see one of them disciplined by their departments.
Actually, I did answer Mark’s question about “testilying”….I never did it, don’t know any other officers that did. I also said that there aren’t any defendant’s that I would be willing to go to prison for.