So this morning’s NY Times article about pervasive perjury in criminal cases by members of the NYPD will come as no surprise to regular criminal defense practitioners. Among those who practice in this field, the practice is called “testilying.” But while Michelle Alexander’s article does a good job of describing the problem and pointing to quotes from former police officers and police commissioners about the practice, she points to federal grants which provide money to police departments for high arrest numbers:
In the war on drugs, federal grant programs like the Edward Byrne Memorial Justice Assistance Grant Program have encouraged state and local law enforcement agencies to boost drug arrests in order to compete for millions of dollars in funding. Agencies receive cash rewards for arresting high numbers of people for drug offenses, no matter how minor the offenses or how weak the evidence. Law enforcement has increasingly become a numbers game. And as it has, police officers’ tendency to regard procedural rules as optional and to lie and distort the facts has grown as well. Numerous scandals involving police officers lying or planting drugs — in Tulia, Tex. and Oakland, Calif., for example — have been linked to federally funded drug task forces eager to keep the cash rolling in.
It cannot be denied that this cash factory for arrest numbers puts pressure on police officers who want to get better assignments and better tours to keep the bodies coming into the system. So certainly trying to de-incentivize police departments for arrests and convictions would go a long way towards reducing this problem, but “testilying” has been going on before these grants were started in the late 1980s, its juts more pervasive. So what can be done to reduce this problem.
Let me first point out that the Times Article does not really explain what the issue is very well. In NY, prior to trial, you are entitled to a suppression hearing to determine if the evidence to be used against the accused was taken under Constitutionally proper methods. If they want to use a statement of the defendant, you get a Huntley hearing; an identification of the defendant results in a Wade hearing; and property taken from the defendant’s person, home or car results in a Mapp hearing (all named after the cases that cited that the defendant has a right to such a pre-trial hearing). These hearings occur right before trial and are heard and decided by a judge only as they involve matters of law. So for a judge to rule in favor of a defendant, it normally means that he or she has to declare that the police officer who testified about how the evidence was obtained was lying. The rules are fairly well-established so prosecutors know what set of facts are going to survive a hearing and which won’t. Some will routinely give favorable pleas (and occasionally outright dismissals) if the facts stink. So arresting officers know what they would have to say in order to get past this stage. So the first step to alleviating this problem is getting prosecutors to acknowledge this issue about cops forming their testimony to meet the legal standards regardless of what really happened. Have them look closely at the evidence and the likelihood of the testimony and not accept it at face value. That’s actually happening regularly in Bronx County, where the DA’s office there has recently begun dismissing cases involving illegal stop and frisks occurring outside NYCHA projects. They saw a pattern of facts being recited constantly by officers and knew that something was rotten. We have to try and tone down the adversarial nature of these prosecutions and train young prosecutors to understand the equal importance of getting a conviction and upholding the Constitution. In Nassau County, if you tell a prosecutor that you believe the cop is lying, you will get laughed at in your face and any plea discussion will end.
Which brings me to the next part of a solution – bringing balance to the bench. The vast majority of judges (particularly in suburban counties) come straight from a career at the DA’s offices. Too rarely are judges with criminal defense experience placed on the bench and even more rarely is a career at the Legal Aid Society considered credentials for the court. Why not? Yes Legal Aid lawyers are overworked, understaffed and burned out on occasion. But most are dedicated defense lawyers who have seen it all and know the law. Why is greater credence given to ten years prosecuting people as opposed to ten years defending people? In fact, I would argue that since prosecutors can always drop bad cases and Legal Aid lawyers are forced to try some miserable cases on a regular basis, that the Legal Aid lawyer has been more tested and more experienced than the prosecutor. After working with the police side by side for so long, once a former prosecutor gets on the bench it is hard to change the mind set that you are on the same team. It’s a question of whether your mind is even open to the possibility that the evidence is weak or that the officer is lying.
It also brings balance to have someone on the bench who has actually represented a person in court and argued for an accused.
The other issue is the horrible discovery statutes in NY Criminal cases. Most people believe that NY is a fairly liberal state when it comes to criminal justice matters, but it has some of the worst provisions for discovery in criminal cases in the country. The defense gets hardly a shred of evidence until right before trial. You are not entitled to discovery on a felony until you are indicted and by then you may have lost all possibility of a plea bargain. Under NY’s Rosario rule, the defense is given the Grand Jury testimony (and other prior statements) of the witnesses testifying at trial (not all witnesses) right at jury selection. California requires all such evidence of this nature to be provided no less than 30 days prior to trial. That provides defense counsel with an opportunity to investigate further once they see the prior testimony of the witnesses. Allowing for some pre-indictment discovery and providing Grand Jury testimony well in advance of trial, will allow the defense to better prepare for pre-trial hearings and trial; the greater chance then that they can expose a lie by police officers and other witnesses.
The Pew Trust Justice Project published a recent treatise “Expanding Discovery in Criminal Cases” which summarized its findings as follows:
Discovery is a crucial procedural safeguard that protects against wrongful imprisonment, helps to make the legal system more transparent by increasing
pretrial disclosure, and ensures a fair procedure by allowing each side in a trial to adequately prepare their case. Alternatively, inadequate discovery laws threaten
the reliability of outcomes in criminal cases and significantly undermine a defendant’s right to due process. Adequate discovery laws also mitigate other common
reasons for wrongful convictions, such as eyewitness misidentification and false confessions. Expanded discovery allows the defense to adequately and vigorously challenge evidence and increases the likelihood that misleading or exculpatory evidence will be caught and handled appropriately when considering pleas and at
trial. Additionally, while expanded criminal discovery laws help ensure a more fair and accurate legal system, legal practitioners in jurisdictions with more open discovery rules also report a more efficient process, with fewer reversals and retrials, and more cases resolved earlier in the process. In short, expanded discovery
practices also enhance judicial efficiency.
So the study shows that expanded discovery leads to less trials, less re-trials and less wrongful convictions. That’s a win-win. Finally, we need to stop punishing defendants for asserting their rights. It’s great – you get to test out the Constitutionality of the search or ID procedure used against your client. But there’s a catch – that hearing occurs post-indictment, so any pre-indictment plea bargaining opportunity will be gone. Many DA’s offices let it be known that all offers are withdrawn if the defendant “forces” the People to go to a hearing. The offer made pre-hearing should stay on post-hearing to let the defendant and counsel test the validity of the case. Yes, it promotes efficiency to do it this way but that’s placing efficiency over the Constitutional rights of the accused. The balance of equities should be in favor of allowing a defendant to make sure he was searched, stopped, identified under proper Constitutional methods. Punishing them by foregoing plea bargaining or by raising offers is contrary to the intent of the framers to provide a system of justice geared towards protecting the innocent, not convicting the guilty.
I know that many folks will say, come on , the defendants lie when they take the stand all the time also. And their mamas, girlfriends, brothers etc take the stand to create false alibis. That may be the case for sure. But what we are talking about is the deference given to police officers in these crucial pre-trial hearings. The automatic assumption by the bench that the cop is telling the truth. The unwillingness of a court to say they disbelieve or discredit the testimony of the police officer because they fear the backlash from the media and the prosecutor’s office for doing so. It’s time all witnesses were judged equally, but that’s a hard sentiment to get placed into reality. Taking the few steps outlined above will enhance the opportunity for a level playing field, that is the very least we should afford those accused of crimes.