At WaPo Conspiracy, Chicago lawprof Will Baude picked up on five lying Chicago cops (which five? this five. Not to be confused with any other five, or four, or six). He calls the story remarkable, not because cops lie, but because they got caught lying.
One by one, five police officers took the witness stand at the Skokie courthouse late last month for what would typically be a routine hearing on whether evidence in a drug case was properly obtained.
But in a “Perry Mason” moment rarely seen inside an actual courtroom, the inquiry took a surprising turn when the suspect’s lawyer played a police video that contradicted the sworn testimony of the five officers — three from Chicago and two from Glenview, a furious judge found.
Okay, okay, settle down. Lest you feel all validated, bear in mind that the lie was proven by video. Yet again, we’re stuck in “but for video” mode. Much like “but for DNA” mode on innocence cases, we can rejoice at the occasional proof of an innocent person released from his wrongful imprisonment, but the 10,000 for whom no DNA exists still sit there. Because they don’t only lie in video cases or withhold Brady in DNA cases. And let’s not get started on how concealed Brady magically materializes after the fact.
But Baude notes a peculiar line in the story that raises a question:
Cook County Circuit Judge Catherine Haberkorn suppressed the search and arrest, leading prosecutors to quickly dismiss the felony charges. All five officers were later stripped of their police powers and put on desk duty pending internal investigations.
He then considers how this plays into judicial incentives:
But the reassignment to desk duty does make me wonder about perverse consequences. My understanding is that once a police officer is found to have lied on the stand, it is difficult for that police officer ever to testify again, because the finding of dishonesty can be used to impeach them. This means that a finding of dishonesty can carry major professional consequences for an officer.
Let us suppose this is true. Is it possible that this actually dissuades judges from finding that police officers have lied?
Obviously, the answer to “is it possible” is “sure,” but it’s a poorly framed question. But even if the question had been more thoughtfully framed, it would nonetheless suffer from the assumption that judges are some different type of being, caricatures of one mind, stereotypes, fungible robed functionaries who think as one. That’s how they look to outsiders. That’s how they look to young lawyers, who haven’t had the opportunity to know the individuals on the bench before they got there.
But once they assume the job, there are certain aspects that tend to weigh more heavily on a judge than we care to admit.
There was a judge in New York County named Harold Rothwax, who has now been dead for a while, and bore the delightful nickname, the “Prince of Darkness.” He was a Legal Aid lawyer before becoming a judge, but once he got his robe, he turned mean and cynical. He was very smart, but the job cost him his humanity.
My partner in the 80’s, Howie, was a friend of Harold’s from their shared Legal Aid days. Howie would occasionally (and by occasionally, I mean twice a day, minimum) drink, and sometimes with his old friends who were now judges. I sometimes sat there, nursing a beer as I wasn’t much of a drinker, listening to two old friends talk.
Harold wrote a book, entitled “Guilty.” It was a horrible book, but insightful to anyone who seeks to understand how a brilliant mind becomes twisted, contorted, bent beyond recognition, when a person assumes the authority to destroy lives.
After a cocktail or two, Harold talked about how his experience as a judge changed him. Case after case, defendant after defendant, victim after victim, made it all a blur. Sure, cops lied. Everybody knew cops lied. Everybody knew cops lied in every case. That was the game. It was their job to put the bad guy away, and the way to win the game was to speak the magic words that the system accepted as necessary.
But we didn’t get it, we being defense lawyers. We didn’t see the pain of the victims. We didn’t see the numbers, the hundred, two hundred defendants a day shuffling in and out of a courtroom, sad, pathetic, worthless. We only saw an individual, one person who was real to us. To a judge, they have no face. And most of the time, they have no future. Just bodies on an assembly line.
What was he supposed to do, Harold asked? They may not all be guilty, but they all were guilty. No one could pluck out the one in a hundred who didn’t deserve to be there, and he wasn’t going to cut everyone free because he couldn’t tell who was who.
He gave up. Blackstone’s ratio was for children. He had a job to do, to keep the cattle moving toward the slaughter. Harold could be a rather charming guy, personally. As a judge, he was utterly despicable.
So could the fact that a finding by a judge that a police officer committed perjury ruin a cop’s career influence his decision? Of course it could, but Baude thinks too hard about it. If it’s a game, and the rules allow police to lie in order to do the job we ask of them, provided they don’t get flagrantly caught, then the judge doesn’t penalize a player in the game for playing it too well or too poorly.
There is a spirit in the well of the courtroom that we may all be on different sides, but we don’t do anything to embarrass the other players, or make it nasty or personal. This is what they mean when lawyers are admonished to be “civil.” We don’t call cops liars. We don’t tell the judge he’s an ignorant fruitcake. We don’t point at the prosecutor for concealing Brady.
The only player in the game unworthy of “civil” is the defendant, because the object of the game is to put him in prison. And that’s why judges don’t find cops to be liars. It’s the same reason judges grow disgusted with criminal defense lawyers who won’t let the wheels of justice grind smoothly. We mess up the game.
Update: At Hercules and the Umpire, Judge Kopf opens the floor on this post, saying:
Because I have always believed that I could handle the truth, Greenfield’s post makes yours truly very, very itchy. Maybe Col. Jessep was right, at least about me.
In the comments, he asks, “Why do I believe cops nearly 100% of the time?” That he asks demonstrates an enormous amount of self-reflection. The problem is that the self-reflection isn’t complete until he gives himself a frank answer. Whether he (or anyone) can do that remains to be seen.
While I might be viewed as a “hanging judge” I am actually very protective of defendant’s constitutional rights.
Self-assessments tend to be notoriously unreliable. To add my Friedrich Nietzsche quote to the mix:
All things are subject to interpretation whichever interpretation prevails at a given time is a function of power and not truth.
A particularly bad problem for a self-assessing judge.