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Testilying

Believing that law enforcement officers are good guys is one of the linchpins of our society; probably of all societies, even where they don’t officially call them “law enforcement” officers. But to believe in law enforcement officers, we must be able to believe law enforcement officers.

So far that doesn’t seem to be a problem for the majority of submitizens,even though newspapers as small as the Fresno Bee contain at least one — and usually more than one — story almost every day about the illegal activities of police officers.

But there’s one type of malfeasance in which police officers engage even more routinely that usually goes unreported. Until now.

The Wall Street Journal reports that,

According to a 1992 survey, prosecutors, defense attorneys and judges in Chicago said they thought that, on average, perjury by police occurs 20% of the time in which defendants claim evidence was illegally seized. (Amir Efrati, “Legal System Struggles With How to React When Police Officers Lie” (January 29, 2009) Wall Street Journal.)

And, trust me (I’m not a police officer), Chicago is not unique.

Patrick, over at PopeHat, reports in “A Rickety, Wooden Story” about two police officers who wanted in to a man’s house because they believed another man they wished to arrest was there. They had no legal right to enter the house and the man refused them entry. Thereupon, they beat him, tasered him and arrested him for assaulting police officers. Fortunately, these cops were stupid and both wrote reports and repeatedly testified about the “rickety, wooden porch” which required one cop to stick his foot inside the door to stabilize himself, supposedly provoking the man’s attack. Unfortunately (for the cops), the porch was made of concrete. The only thing rickety was their fabricated story.

Not all police officers lies are as blatant as this, of course. In San Francisco, a woman spent 20 months in jail, awaiting trial on attempted murder. Though there was no evidence that a crime had even been committed, a police officer revised an earlier story about hearing a shot and seeing a car; months after the fact, he identified an innocent woman as the shooter. A jury acquitted the woman after police, who had safeguarded the bullet in an evidence locker for two years, “disposed” of it three days into the trial. The Public Defender was glad that the jury had seen through the lies. But did they see through the lies? Or did they merely think the officer was mistaken? That case had so many weaknesses it’s hard to tell.

And then, of course, there are the “testiliars” who get away with it. Shockingly, this is not really a secret.

“It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers,” though it’s difficult to detect in specific cases, said Alex Kozinski, a federal appeals-court judge, in the 1990s. That’s because the exclusionary rule “sets up a great incentive for…police to lie.” (Amir Efrati, “Legal System Struggles With How to React When Police Officers Lie” (January 29, 2009) Wall Street Journal (emphasis added).)

I still remember when I first learned about this. I was stunned. Prior to becoming a criminal defense attorney, I thought that most police officers were good and figured, at most, ten percent were “bad cops.” As a criminal defense attorney practicing in Fresno, Tulare, Madera and Kings Counties, I’ve come to learn that, at best, the percentages are reversed when it comes to testilying. As the WSJ article points out, “there’s a tacit agreement among many officers that lying about how evidence is seized keeps criminals off the street.” Police officers figure it’s okay to break the law in order to get a conviction against someone who they believe has broken the law. After all, the someone being convicted isn’t them.

The problem is that sometimes police officers are wrong.

It leaves you to wonder: “How many innocent people are sitting in jails and prisons because of police testiliars?”

Special thanks to Kerry Prindiville of the Fresno County Law Library for bringing the Wall Street article to my attention.
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