The Worst Kept Secret: Cops Lie

It will come as a shock to no one to learn that cops lie sometimes.  It’s the sort of thing that everyone seems to know, from the New York Times when it published its “testilying” series back in 1994 to anyone who’s seen the Patrick Pogan video of cyclist Christian Long getting knocked off his bike onto his critical mass.

Everyone, it seems, except judges.  Whether to maintain their pristine impartiality, or to make their job easier by going with the odds, judges have managed to ignore what’s long been obvious to everyone else, within and without the system.  Cops lies.  Not all the time, but a lot.  Not about everything, but about enough.

Detectives Henry Tavarez and Stephen Anderson lied when they claimed that Maximo and Joe Colon sold them cocaine at Club Delicias de Mi Terra.  There was a video camera that told the truth.  How did we ever survive without video?  You see, cops never lied before there was video.  We know because there was no evidence to prove that every word out of police officer’s mouth wasn’t true.  Hence, they never lied.  Now they do.

The Colon brothers sued the New York City, and the City moved to dismiss.  Unfortunately for the City, the case went to Judge Jack Weinstein, who’s been on the bench forever and knows that he’s never going to be appointed to the Supreme Court.  That leaves him free to make rulings that younger judges might not want to make.  He’s the Bobby McGhee of the Eastern District. 

Judge Weinstein denied the motion, but took it a step further.  From the New York Daily News :

Informal inquiry by [myself] and among the judges of this court, as well as knowledge of cases in other federal and state courts … has revealed anecdotal evidence of repeated, widespread falsification by arresting officers of the New York City Police Department,

It’s as if the judges were all whispering to each other in the judges’ lounge about it.  But Judge Weinstein let the cat out of the bag.

The judge said that despite better training for recruits and tough disciplinary action for bad cops, “there is some evidence of an attitude among officers that is sufficiently widespread to constitute a custom or policy by the city approving illegal conduct.”
For those of us working in the trenches, or chronicling the cases of false testimony, this makes it sound almost trivial.  But the fact that Judge Weinstein wrote the words “widespread falsification” in his four page decision is huge.  It’s not the first time a judge has found that a cop lied, and it’s unlikely to cause a seismic shift in judges rejecting the testimony of police officers wholesale.  The odds still favor the cops, and judges know it.  But still, he went beyond the “isolated incident” language that has long marked the judiciary’s adventures in fantasy.

It’s unlikely that we will ever have a judge opine that there has never been a single trial where a law enforcement officer didn’t give false testimony, to some greater or lesser extent.  Whether to fill in the gaps, exaggerate a detail or present an accusation made of whole cloth, testimony that is 100% truthful and accurate is the zebra in the courtroom.  I’m sure it happens, but very, very rarely.  That doesn’t mean the defendant didn’t do it, but as Murray Kempton liked to say, “there they go again, framing the guilty.”

This decision is the product of the confluence of two things, the existence of a videotape proving that the detectives were lying and a judge who is old and bold enough to not care whether anybody likes his decisions or not.  There are bold young judges too, but a ruling like this is a career killer.  Most young judges aspire to higher position, and don’t love our defendants as much as they love their families and themselves. 

Had there been no video conclusively proving the lie, a conclusion like this would be taken as proof that Judge Weinstein is just utterly biased against cops.  Without video, there can be no lie.  Just like without DNA, there can be no innocence.  The cops need only have their testimony; we need hard proof.  A credibility tie always goes to the cops.  Actually, any testimonial pissing match always goes to the cops. Unless there is video.  At least that’s how the odds have always played out in court up to now.

This is a step forward in the battle against testilying, though not one that will inure to any particular defendant’s benefit.  It will cause a few right-minded judges to come to grips in their own minds with the fact that it’s now out in the open that cops lie.  Other judges won’t care at all.  But every journey begins with a single step, and Judge Weinstein has taken that step here.

H/T Packratt at Injustice Everywhere

6 thoughts on “The Worst Kept Secret: Cops Lie

  1. Thomas R. Griffith

    Sir, yes, it appears that hell has frozen over (BTW – it’s snowing in big-D).

    If you ever find yourself in his presence, please inform him that his action on the bench today will restore public faith and trust in a system marred in lies and deceit, if he continues this stance (video or no video). As far as I can tell his bench is supreme. *Would you consider him Public Hero material or is it just the video talking?

    History has shown that the public at large puts up with professional corruption only for so long, before heads roll. (Look what happened when crack heads united for Rodney King.)

    It’s hoped that other judges and grand juries hear about his actions and “do the right thing.” As far cops go, if I could sing, I’d belt out the Gieco Insurance tune. “Somebody’s watchin you” Thanks.

  2. george cotz

    I couldn’t agree more. It is so refreshing to see a judge actually put on paper what they will generally acknowledge in chambers.

  3. Charles Carreon

    Just got a case dismissed in San Mateo County Superior Court where airport video conclusively proved that the police officer lied about my client’s ostensibly criminal activities. But for the video, the case would have gone to trial, and justice would have been reduced a swearing contest as it so often is. And for this, the badge-wearers collect good pay, a pension, and the right to claim superiority over the average citizen.

  4. Roy

    Just a thought — as a military defense counsel I hold commanders’ feet to the fired to follow procedural standards and to follow the intent stated in Army regulations. For the most part, they do so without hesitation as a matter of professionalism. Even the exceptions are largely motivated by an intent to do what is right under the circumstances.

    My bane, though, is the JAG who gives the boss a free pass to do whatever he wants, without regard to standards. The lawyer should know better, but the commander relying on this miserable substitute for advice does not.

    Why do they do it? The standard the lawyer is applying is defensibility, could his case survive summary judgment. And since there is no real appeal for the nonjudicial and adminstrative actions I handle, there is absolutely no risk of reversal.

    In criminal actions, before military and civilian courts, there similarly appears to be a miserable substitute for fair judgment on the part of prosecutors. If you simply take what the police give you, assume it to be true, and think only like a technician working through to a win or a loss, then justice loses out. Did the cop lie? Maybe — so what? What matters is whether he’s believed! It’s up to the other side to tear his testimony apart! And even if he did, the accused is guilty anyway — if not of this crime, then of some other, and he’s got it coming to him…

    Prosecutors need to hold themselves to a higher standard. Conviction rates and lengthy pleas should hardly be the standard for a professional, nor should they punt to the judge or jury as to the reliability or substance of evidence or witnesses. Offices should take pride in the quality of their cases, in the integrity and reputation of the police force that supports their efforts, and the deep and broad trust and support of the public they serve.

    When the contrary is well known by everyone acquainted with the environment — even if unstated and seldom acted on — it should be to the shame, dishonor and discredit of all concerned.

    And shame can be a more powerful force for change than punishment.

    In this JAG’s opinion…

  5. SHG

    I suspect that you have the benefit of working with people for whom honor means something.  Honor means little to most people out here.  It’s all about the money, and they will shed their honor in a flash for a buck.

  6. JM

    I disagree that shame can be a more powerful force for change then punishment. Clearly they have no shame if they can pin drugs on innocent people. Imo it’s the honor/shame paradigm that’s partly responsible for getting us into messes like this in the first place. The avoidance of looking bad (feeling shame) motivates people to cover up garbage like this instead of kicking it to the curb. Since the police / prosecutors i.e., “the good guys” want to preserve their ego (er, honor) they go along with the program, never asking if it’s the right or wrong thing to do. And it’s interesting to note that in shame based cultures it’s usually the wrong people who, pun intended, get burned. The idea of punishment should simply be to right a wrong, to correct a mistake when possible. Forget about their reputations, or how they, ah, poor babies–feellll. Those that perpetrate or knowingly enable an injustice such as this should simply hear, in the words of a certain New York real estate mogul; “YOU’RE FIRED”.

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