Reasonable Doubt & The Word of a Police Officer


This post is going to be hard to understand if you are a black-and-white thinker. In fact, it’s so difficult for many who visit this blog to understand that I’m going to start with the disclaimer that I often use when discussing police officers and honesty:

Not all police officers are bad. Not all police officers lie. Not all police officers plant weapons, drugs, or other evidence. Not all police officers ignore the rights of citizens. Not all police officers “bend,” or ignore, our laws. Not all police officers will give someone a tune-up for speaking their mind.

Police officers are human beings. Admittedly, there is a police culture that has shifted in a way that lying and planting drugs and ignoring rights and laws has become common. But because police officers have to be selected from the same species as the rest of humanity, there will always be officers who honestly try to do the best jobs they can possibly do, in the most ethical and law-abiding way.

The problem, of course, is that these days you just can’t tell, by looking at a particular law enforcement officer, whether a particular law enforcement officer is one of those who is being honest, or whether he is one who will lie (especially in court), or plant evidence, or ignore rights, or follow the law.

Therein lies the problem. 

I know I say some nasty stuff about police officers. It may surprise you to know that I didn’t always talk like this, or think the way I do. Over the years since I became an attorney, however, I’ve come to know that every one of the things I talked about above happens on a regular basis.

Some police officers lie.

Some police officers plant evidence.

Some police officers ignore rights.

Some police officers will not follow the law.

Sometimes they don’t follow the law because they don’t know it. You can’t totally fault them for that. Our laws today are so complex that even lawyers have a hard time sorting it out. The real problem here, though, is that sometimes police officers don’t follow the law simply because they don’t want to follow it. 

Prosecutors won’t charge cops, even for the same things for which they’d charge you, since they’re all “on the same team.” Our courts — supposedly the last guardians we have against the abuse of the executive branch of government to which prosecutors and the police belong — are often complicit. Despite the large number of proven cases of police officers who essentially make a mockery of our laws, other parts of the government which should be policing the police refuse to do so.

And make no mistake, these are not “one-off” incidents we’re talking about here. I tried to highlight that fact by the numerous links above. And it did not take me long to find those links. But these links only scratch the surface. One of the stories I linked above stated:

When Pérez was finally arrested, he implicated 70 other Rampart Division officers in various forms of misconduct, ranging from bad shootings to consuming alcohol while on duty.

That’s right, seventy. In one division of the police department. Those are just the ones Pérez implicated.

Another of the stories linked above — involving California police officers — begins with this opening sentence:

A Huntington Beach police officer’s exoneration for planting a loaded gun in a suspect’s car has led to the revelation that police routinely plant evidence in unsuspecting civilians’ vehicles for training exercises. (Emphasis added.)

Now, you might want to hone in on this story and say, “well, that’s a good story to pick there, Mr. Rick, because it clearly shows that the police aren’t planting evidence to get people convicted.”

I have two replies to that. First, bull: look at the other stories I linked above. (And if I wanted to spend the time on it, I could probably find enough stories of separate criminal acts by police officers to add one link for every word in this blog article.) There was nothing about them that suggested training. In fact, the evidence was planted in order to frame or convict someone for crimes they did not commit. This story just goes to show how easy it is to plant evidence in the first place.

And here’s my second reply, which actually comes from the same article about Huntington Beach:

News of the training technique sparked surprise and criticism from police officials across the county, who said planting weapons in civilian vehicles is “inappropriate” and a “bad idea.”

“I’ve never heard of anybody doing that,” said George Wright, chairman of the Criminal Justice Department at Santa Ana College. “You’re using someone else’s property, and that can lead to other problems. … What if someone forgets about the gun and just leaves it behind?”

Police in Las Vegas abandoned a similar training tactic for drug-sniffing police dogs last year, when a man was falsely charged with drug possession after a canine officer forgot to retrieve drugs planted in the man’s car, according to published reports.

Imagine your doctor training medical students by leaving a forceps inside a patient during surgery. Think about the ramifications.

Done? Good. Still think that it’s okay if it’s “for training purposes”? Did you also stop to think about the fact that, in order to accept even this, you had to trust that the police department that said they regularly did this “for training purposes” was telling you the truth? And not just covering up for getting caught planting evidence?

All this — and particularly the widespread institutionalized endorsement of these acts and the corruption we know about1 — just reinforces why juries should be very, very careful about convicting people based only upon the say-so of police officers. How’d that weapon, or those drugs, wind up in the car of the defendant who swears he did not know about it? Was it planted as part of some “training exercise”? Or deliberately?

And for the courts, refusing to suppress evidence because the officer testified that the defendant consented to have his home searched, where 500 lbs of marijuana was found, some of it sitting in plain view?2 Do you really believe that someone will consent to a search under such circumstances?

The bottom line is this: these days, law enforcement fudges or crosses the line so often that if the only other evidence you have is the word of the police officer, no one will ever know. Certainly no one will ever know “beyond a reasonable doubt.”

It’s time to stop that. It’s time to hold police to a higher standard than that to which we hold criminals. It’s time to stop convicting people just on the say-so of the police.

 


Endnotes:

  1. That it is widespread is born out by the foreword to Tim Prenzler’s book, Police Corruption: Preventing Misconduct and Maintaining Integrity, which states “Policing, it seems, is prone to the same potential problems of corruption and misconduct everywhere in the world.” p. xv. Prenzler’s book goes on to detail just how. []
  2. I was actually involved in a case once where that was part of the fact pattern. []

About Rick Horowitz

Rick Horowitz is a criminal defense attorney with an extreme dislike of the criminal "justice" system which routinely ignores the Constitution, the Law, and the lives it ruins.

In addition to this blog, Rick also writes at Fresno Criminal Defense.

Comments

  1. Brenda A. Linder says:

    Your post today brings several questions to mind. Who, if anyone, is responsible for teaching law enforcement officers about the current law regarding those pesky Constitutional Amendments, against which they come up on a daily basis? My son is taking a Constitutional Analysis class at City College – from an ex-law enforcement officer. Really? I had to assist him the other day in carefully wording some essay answers, due to the way the law enforcement – slanted questions were worded. Q. “Some people assert there is alleged racial discrimination in the criminal justice system. State two areas racial discrimination may allegedly occur, and how. ”

    At first, he wasn’t amused by my laughter. I reviewed his original responses and had him insert “alleged” just before the words “racial discrimination” in all of his responses. Aside from important semantics, there have been outright “wrong” answers on tests, as well. Since when is an ex-cop the appropriate instructor of Constitutional Rights?


  2. One of the most aggravating things for me is the refusal of prosecutors to charge and try police for crimes that they would throw the book at regular citizens or for judges simply to overlook the obvious in finding them not quilty. The recent acquittal of the Philly cop that assaulted the woman at the Puerto Rican day parade is a case in point. The consequences for police must be the same as for non-police.

  3. Aqua Regia says:

    How many good cops are there? Not many I think. I contend that any cop who knows about a bad cop, and does not turn him in, is a bad cop. That cops who refuse to follow the orders of Federal judges are bad cops.

    I will also argue that a cop who commits a crime should be punished more harshly that a civilian criminal. The civilian criminal usually has one or a small number of victims, while the police officer criminal not only directly harms the victim, (s)he also attacks the legal system and society at large doing enormous damage.


  4. “Not all police officers are bad. Not all police officers lie.”

    I hate these disclaimers because, as a former cop, and personal experience with cops *always* lying about me, I would modify the disclaimer to something like, “Not all police officers are bad. But most are. Not all police officers lie. But most do.”


  5. “One of the most aggravating things for me is the refusal of prosecutors to charge and try police for crimes that they would throw the book at regular citizens or for judges simply to overlook the obvious in finding them not quilty. The recent acquittal of the Philly cop that assaulted the woman at the Puerto Rican day parade is a case in point. The consequences for police must be the same as for non-police.”

    What if prosecutors were presented information about potential crimes without any information identifying the suspect or the suspect’s occupation and they had to make a decision to prosecute solely based on the facts available about the crime? I’m guessing the fact that cops get to investigate themselves would still result in nearly non-existant prosecution of cops. That means: cops *cannot* be allowed to investigate themselves.


    • That, of course, is one of the big problems with cops gone wrong: they often investigate one another. “Internal Affairs” is entirely based on the idea of cops investigating cops. And even in those situations where there is an allegedly-independent auditor, he (in fairness I should say “or she,” but I’ve not personally heard of a woman auditor) is usually an ex-cop.

      Nor, as I said in my post, can we really count on the courts to reign in dishonest officers. It’s frequently stated that “everyone knows” that cops lie, and that that includes judges. I’m not actually positive that judges who give police officers a pass always do know. But it’s clear that we can’t rely on judges to reign in bad officers — just look at the actions of our own police force, and “Justice” Scalia’s comments regarding our “modern police force.”

      What we need are more enlightened jurors.

      And people willing to file complaints at the local level so that when defense attorneys like myself go looking for them with motions to obtain personnel records, we can find them.

      Of course, writing to your legislators about passing legislation which will help keep officers honest would help, too. There’s no reason for not having tape-recorded interrogations, to provide just one example. Yet former California Governator Schwarzenegger kept blocking passage even after our legislators passed it.

  6. Gare Reeve says:

    While I don’t disagree with your central premise, I have to remain skeptical about the alleged seventy corrupt officers in the Rampart Division case. Those officers are being implicated by a proven liar who has a strong motivation to implicate as many other police officers as he can, regardless of their guilt.

    Unless there is additional evidence against those officers, I feel that you should treat Pérez’s testimony with the same skepticism that you would if he were testifying against a civilian.

    Aside from that nitpick, great article.


    • Good! I assume you’ll make a good addition to juries in my cases where co-defendants’ statements are used by the prosecution to try to implicate my client!

      And thanks for the compliment regarding my post. I appreciate the input.


  7. I would settle for just holding police to the *same* standard. They really are a ‘protected class’ – some states even go so far as allot them special rights, in the form of “Police Officers’ Bill of Rights’ and such, which protections that make investigating, let alone prosecuting, all but impossible.


  8. It seems that there four types of potential cops: dumb & honest cops, dumb and dishonest cops, smart and honest cops, and smart and dishonest cops. Cops are hired, retained, and promoted based on their ability to successfully arrest and win convictions without (being caught) violating the law. Given this incentive structure, it seems almost axiomatic that the most successful cops will be dishonest and smart for their dishonesty will allow them to violate the law and their “smarts” will allow them not to get caught violating the law. One might think the second most successful type of cop would be a smart and honest cop but this type of cop will likely get nothing more than uneasy stares and a desk job. Thankfully for defense attorneys and cop humor, most cops fit the stereotype and are (or are incentivized to become) dumb and dishonest. The least successful type of cop would be a dumb and honest cop. I would predict that the higher ranked cops are on average smarter and more dishonest than the lower ranked cops but that the lower ranked cops would on average get caught violating the law more frequently than their superiors. Obviously its all relative and a matter of degree but in the aggregate this seems to be a good model to adhere to.


    • Interesting you should say that. I was talking to someone yesterday, and we were discussing the tendency for the higher-ranked cops to be smarter and more dishonest.

  9. Gare Reeve says:

    @Rick: I was just about to post a link to that story. Cases like this demonstrate why “law and order” conservatives should be be up in arms about police abuses. Not only do innocent people get convicted, and possibly put on death row/executed, it also risks guilty people going free. The woman in this case fits into one of those two situations, and they both represent a travesty of justice.

    I wonder how many defense attorneys in Arizona who had this guy testify at a trial where one of their clients was convicted are getting ready to file a new round of appeals.

    Cops who get caught lying under oath while testifying as a police officer should be fired, stripped of their pensions, and forbidden from working at a taxpayer-funded job ever again. A cop found to have lied under oath after they’ve retired should be forced to pay back whatever portion of their pension that they’ve received.

    (Actually, ANY public servant should have the above rule applied to them, but this thread is focused on law enforcement.)

  10. Todd Richardson says:

    I have always said: “if you want to be a cop you should automatically be disqualified”. It takes a certain mentality to want to be a cop in the first place and that mentality is not conducive to the requirements of a civil society

Trackbacks


  1. [...] Rick Horowitz: Reasonable Doubt and the Word of a Police Officer [...]


  2. [...] of William Grigg’s articles, or material by Radley Balko, the Cop Block blog, and especially this post by attorney Rick Horowitz on the police of today. As I indicated in my article, No More Police Socialism, the reason that we [...]


  3. [...] even if the “Law and Order conservatives” read William Grigg, Cop Block, Radley Balko, and Rick Horowitz every day, they still wouldn’t understand how like the Soviet Union and Nazi Germany America is [...]