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by Peter Moskos

February 5, 2013

"A system that is dishonest and fundamentally flawed"

I often (and sincerely) defend Vice Magazine as (on a good day, mind you) the best source of journalism in our fine republic.

Last night a friend sent me this link called, "Testilying: Cops Are Liars Who Get Away with Perjury." OK... so I'm not expecting this to be pro-police. But before I read it, I wrote back saying: "I predict this will be much more informative (and accurate) than Michelle Alexander's op-ed the other day in the Times on the same subject."

Now don't get me wrong, I support Michelle Alexander. I like her book (even if I am a bit peeved it sold so much more than In Defense of Flogging). And I think the corrupting nature of the war on drugs is horrible for society and police. I think American incarceration is a racist gulag we need to be ashamed of. But Alexander loses me when she says, "Are police officers necessarily more trustworthy than alleged criminals? I think not... Police shouldn't be trusted any more than any other witness, perhaps less so." Really?! This shows a worldview based on outliers all to common to people who haven't been in the courtroom (or the streets) for far too long. People lie in courts all the time. In court, cops lie least of all.

Now compare that op-ed to Nick Malinowski's article in Vice:
By not acknowledging rampant police misconduct, by not demanding that criminal justice is meted out in a fair way, what are we giving up? Are we sacrificing a moral claim to justice by sanctioning the police--and thus the state--the freedom to circumvent the rule of law in the pursuit of a particular type of social order?

“That is assuming that the justice system ever had any moral claim, which I would not assume,” former NYPD officer and Queens county prosecutor [and my colleague at John Jay College] Eugene O’Donnell says. “There is dishonesty in court, prosecutorial dishonesty. It’s legislative dishonesty that sets up this system and by no means are cops exempt from a system that is dishonest and fundamentally flawed.”
Damn, Gene, you did it again!

Here's the thing: the courts in this country are literally a game. Cops know how to play that game pretty well. And cops want to win. Personally, I think a Continental system based on "discovering the truth" would be better, at least on a moral level, than our "adversarial system." But such is the system we have. So be it. And what this means is that prosecutors want to convict and defense attorneys want to acquit regardless of what the suspect actually did. See, that's the game. A defense attorney never throws up his or hands and says, "damnit, my client is guilty." They're not allowed to! Because the point of the system is not to determine what is right and just. Let me repeat that: the point of the criminal justice system is not to determine what is right and just. The point is for all the players to play their role. And you do this, at least in theory, because you hope and assume the greater system is right and just.

Now prosecutors are supposed to admit when they're wrong. Too often they don't. More often this doesn't come into play because the accused is guilty as sin. But if you want to find abuse in the criminal justice system, you could do a lot worse than starting with a look into proprietorial discretion and the plea bargain system. That is where the shit everybody is covered in is actually manufactured and distributed wholesale.

So if you've never been to criminal court, why don't you stop watching TV and spend a day in your local neighborhood court. Pick the lowest level and see what passes for justice for thousands of people every day.

Cops are placed in this fucked-up game, but usually police not really key players in that game. If somebody beats the crap out of you, and you're willing to testify, nobody needs the cops. Police just come along for the overtime. But when it comes to drugs and other "victimless" crimes, police suddenly are major players. And what drives police, usually in this order, is a desire to make overtime, please their bosses, and do good (usually seen as getting the guilty off the streets).

There are rules that cops follow on the street that come not directly from laws and constitutions but from what prosecutors say are the rules of the game based on laws and the state and federal constitutions. Prosecutors tell police what police need to say and do to get a conviction. These rules can be very frustrating to police (see the Oreo Cookie example from Cop in the Hood, for instance; or me wrestling with a suspect and trying to keep a purse in view when I should have been spending 100 percent of my energy on the battle at hand). Often, if police feel the urge to lie, it's not a matter convicting the innocent but convicting the guilty exactly as charged. Because prosecutors won't prosecute unless a certain and somewhat arbitrary checklist of standards is followed. You're bending the rules not of the Constitution but of a prosecutorial game that is rigged and with rules that seem to make no sense.

The most common example I came across is that drugs can't leave an officer's sight. So you chase somebody down an alley, you see the person throw drugs down. You catch the person around the next bend. Twenty seconds later you go back to where you saw the drugs thrown and find those very drugs. This would probably hold up in a trial, but it will never get there because (well, leaving aside that fact that almost nothing ever ends up in a trial) the prosecutor won't prosecute unless you say those drugs never left your sight. It would be an easy lie to make. All you would have to say is that the drugs were on the person when you took them into custody. And yet still, most cops won't make that lie. Why? Because it's not worth it. One person with a video camera means you get called out for perjury and get fired. To be fired is to lost your pension. Now why would want to do that? You get paid whether or not the guy walks. Let the bastard go.

Then Vice digs deeper and makes the link between the rise of police lies and Mapp v. Ohio and Terry v. Ohio. Deep. Insightful.

OK... Vice does indeed go a bit off the deep end. In Malonowski's words, "police are indoctrinated into something akin to genocidal project: the forced removal of a class of people from their homes." Sure. Whatever. And a bit of ignorance shines through as well: "If we started taking police lies more seriously -- prosecuting them as we would civilian perjurers...." Tee-hee. See that's funny, not because it's true, but because it makes the assumption that civilians get prosecuted for lying in court. Ha ha.

OK, maybe Vice doesn't like police. But hell, I don't expect Vice to be pro-police. Hell, even more, I don't want Vice to be pro-police! And yet it's still a great article.

Once again, for the record, I did not see an officer lie in court. Maybe Baltimore officers are simply more honest than cops in other cities? Maybe. I kind of doubt it, but maybe.

But I write this not to defend cops. Do some cops lie? Yes. We've seen it. Is the harm they do somehow mitigated by putting some schmuck away for some time? No, not even close. But you could end 90 percent of police corruption if you ended the drug war. And in the meantime, if you're looking to find out why the system is rotten, you're barking up the wrong tree if you focus on police testimony. The lying cops that are out there are symptom of the drug-war problem, not the cause. Not even close.


campbell said...

Michelle Alexander's use of "Peter Keane, a former San Francisco Police commissioner" is a nice bit of hackery. She full well knows most people will read that title like he's an ex cop or some other kind of law enforcement insider when in reality Keane is a career defense attorney who spent 18 months as a member of the police commission in San Fran after being appointed by a civilian board. But I guess "career defense attorney says cops lie" doesn't quite have the same ring to it.

PCM said...

That *is* a bit deceiving. Thanks for the comment.