In last week’s “But for Video” post, I had the honor of presenting a little home town magic as a video camera caught a police officer nail a bicycle in mid-flight during the Critical Mass cycle protest down 7th Avenue. In that post, I was critical of the fellow officer who watched and enabled the officer who performed the “Big Shove,” noting that one animal doesn’t get away without the help of the rest of the pack.
Now it’s time to make note of how this “Big Shove” video reveals fundamental flaws in the criminal justice system.
From The Smoking Gun comes the criminal court complaint in the case of People v. Christopher Long. The deponent, our pusher, turns out to be rookie Police Officer Patrick Pogan, who is referred to as the deponent in the complaint. 
So we start out with a complaint by a police officer, notably with the recitation at the bottom that “false statements…are punishable as a class A misdemeanor.” This legend is included in place of an oath, having the same affect as the officer swearing under penalty of perjury.
At this stage, we have a cop who has violently attacked a cyclist. We have a Manhattan Assistant District Attorney named Mardirossian who has drafted this complaint in the ECAB unit for P.O. Pogan. According to the court computers, Mr. Long was represented by an unnamed legal aid lawyer, and it all comes before Judge Larry Stephen on July 26, the day after the “Big Shove.” If you would like to look it all up for yourself, the Docket Number is 2008NY055086 and access to the file can be found at Webcrims.
With all the players lined up, and the accusatory instrument and evidence to the contrary in hand, let’s see how this plays out in the finest criminal justice system that society has ever created. Mind you, this is with “knowledge aforethought” of the Reasonable Scalia Rule, that the video leaves no doubt that Officer Pogan is a liar ab initio.
Pogan provides his information to ADA Mardirossian at ECAB, the “Early Case Assessment Bureau” in the District Attorney’s office, who’s job it is to vet the cases and draft the complaint. Per the info, the ADA has no reason to toss the charge, though given the allegations from Pogan, it appears that the ADA didn’t exactly buy them either, as such a vicious attack on a police officer as claimed by Pogan seldom ends up charged as a misdemeanor. Had the ADA really bought into Pogan’s claim that Long rode his bicycle into him, my bet is that he would have charged a felony assault.
About a day after the “Big Shove,” the body and the papers make their way to Judge Stephens. No doubt the Legal Aid lawyer countered the charge by asserting that Pogan attacked Long, not the other way around. But here we have a cop swearing that he was the victim of the vicious and disrespectful cyclist. What’s a judge to do? The defendant is released on his own recognizance (meaning, without bail) and the case is adjourned to September 5.
The normalcy of what happened after the “Big Shove” in the course of ordinary criminal court proceedings is clear. The cop lies and the rest of the dominoes fall into place. The cops partner isn’t going to come forward. The ADA has no way of knowing that the cop is lying. The judge has no way of knowing the cop is lying. The case proceeds in the normal course of affairs.
There is no magic to this system. There is no secret way that all the players can discern truth from outright fabrication. If a cop is willing to lie, then system will accept and adopt it and the defendant will be pushed through to the other side. The defense attorney may rant about the wrong done the defendant, but no one, ever, will believe what he says. The word of a cop is enough.
Absent the video, the case will be assigned to an ADA for prosecution before September 5. On that date, a plea offer will likely be made, and Long would have to chose whether to accept the plea, and admit to guilt for a crime that never happened, or go to trial. Likely, the plea will be to disorderly conduct, an “infraction” rather than a crime, meaning he will have no criminal record. He will receive a sentence of conditional discharge with community service. The alternative is to role the dice and go to trial. He will be advised to take the plea, as it is inconsequential and he runs a serious risk of losing at trial. It’s the proper advice. As it happens, absent the video, it is fundamentally wrong.
What this discloses is the inability of the criminal justice system to accommodate a lying cop. While this case is the oddball, since there is a video, the scenario otherwise is unbearably normal. Cop says crime. Crime it is.
Mark Draughn at WindyPundit, provides a story of when he was a juror in a case where the defense was that he was attacked by the cop without provocation during a traffic stop.
We convicted him because his story wasn’t believable for a number of reasons, one of which was his claim that the cop attacked him out of the blue without provocation. That just seemed unlikely.
Now that he’s thought about the videotape of Pogan attacking Long, the verdict doesn’t seem as clear. The prosecutor, I would suspect, argued, “Why would Police Officer Jones just attack the defendant without any reason? He doesn’t know him. He has nothing against him. It just doesn’t make any sense.” It’s a good argument, and we’ve all heard it many times.
The problem is that police officers are empowered to act out their frustrations, their anger, their prejudice, their impulses, because they can. For most of us, there are constraints on any violent impulse we might have. For cops, there are none. These may be the same cops who save a life the day before and are proclaimed a hero. Or given a medal for not killing an innocent person. But if something annoys them, or they just feel like shoving a cyclist off his bike, they can. They know that they need only fabricate a simple story and not only will they get away with it, but they can add a whole new level of misery to the cyclist’s life.
The system has no way to stop this from happening. The ADA can’t tell. The judge goes with the odds, no matter what the defense lawyer has to say about it. Once the cop swears it’s true, the wheels of justice grind.
The District Attorney has the power to advance the case and move to dismiss it, thus removing the burden of Long having to return to court and having this hang over him until September. Curiously, it hasn’t happened. Yet.
But Christopher Long is one in a million. He’s got a video to make his case. Judge Stephens probably feels awfully lousy about not listening to Long’s lawyer, and the ADA wonders whether his legal career has just come to crashing halt because of his failure to recognize a lying cop.
While it’s easy to blame Pogan and feel better with the knowledge that “one bad apple” has been outed by a video, it misses the big picture. What this case reveals isn’t limited to rookie cop Pogan. It is an window into a system that simply does not do what it purports to do. It cannot distinguish truth from fiction.
That’s the moral of this story.
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What this discloses is the inability of the criminal justice system to accommodate a lying cop.
With all due respect, I disagree. I think this discloses how incredibly accomodating the system is to a lying cop. 😉
Point taken.
Clearly (based on my own observations and conclusions) the video shows this Big Apple “Bad Apple” shoving that bicyclist over. As for the other officer, was he suppose to tackle the “Bad Apple” or yell to him “Halt or I’ll shoot”? …pack of animals, my ass. NYPD took away the “Bad Apple’s” badge and gun and he is under an internal investigation!
As for Joe Citizen that got shoved over, if the ADA doesn’t end up dropping those bogus charges, it looks like a good “Pro Bono” case for a NY Defense Attorney with 26 years experience!
Some questions are easy. What the second cop was supposed to do was exactly the same thing as if he’d witnessed anybody else committing an assault, or taking a bribe, or robbing a bank: “Sir, you are under arrest. You have the right to remain silent . . . ” etc.
Not complicated.
Hard to tell from the video that I viewed what the second officer observed. Seems to me, he may have been glancing down the street to besure that he didn’t run into or get hit by an oncoming bike!
If he didn’t observe it, that’s one thing. If, as appears to be the case from the tape, he stood by and witnessed the assault without taking action, that’s rather another.
Quis custodiet ipsos custodes? In the NYPD, the answer is: Youtube.
So… If I understand this correctly, if you and your law partner were walking down the street and your partner pushed over a 20 year old man who was walking passed (for no apparent reason, you would either make a citizen’s arrest or dial “911” and report your partner’s actions to the police. Just asking!!
Factor one additional detail into the mix: Pogan’s partner is a police officer. His job is to arrest people who commit crimes. His duty is to the People of the State of New York. Now if we forgive him his duty, then what does he become?
No one seriously would believe that the partner would tackle Pogan to the ground, cuff him and read him his rights. He did what everyone would expect him to do. Stand by silently and support his fellow officer, no matter what his fellow officer did. That’s the culture. That’s the problem. And that’s flaw number 1.
Of course, there was nothing to stop the partner from calling IAD or the DA when he got back to the precinct, even if he did so on the sly to protect himself from guaranteed retaliation. And guaranteed retaliation is flaw number 2.
Unless he’s been hiding something, Scott’s not a LEO — although I do know relatively local-to-him attorney who is a NYPD reserve officer, so such things are not impossible — so he doesn’t have the same obligations that an onduty LEO does. While citizens arrest is common in most jurisdictions (it’s how most shoplifters are bagged, when they are), there’s some serious risks that one would take in performing one outside of what’s common; I’d try to avoid it, myself.
That said, speaking for me, if I was walking down the street with a personal friend or professional associate and they assaulted a passer-by, I’d damn well, at a minimum, call 911, and if I wasn’t willing to do that, I’d be ashamed of myself.
Now if we forgive him his duty, then what does he become?
“Distressingly common.” Ba-dump-BUMP. I’ll be hear all week, folks; try the veal.
Yes, sir. There are flaws in the system but who is to say that this officer didn’t call IAD or the DA when he got back to the precinct. None of us know exactly what the second officer saw and what he actually did or didn’t do after the fact. LEOs constantly get accused of rushing to judgment but aren’t y’all doing the same thing as it relates to the second officer? The video evidence is rather damning for the first officer and he should be fired and probably prosecuted. I say probably because I do not know what the DA Office in NY prosecutes or what kind of deal some Defense Attorney will strike for this cop.
I have only been coming to this blog website for the last week and from I have read, the last thing I would do is accuse SHG of being a LEO. As I recall, I have only accused him of having disdain for LEOs.
As a retired FLEO, I have found many of the comments pertaining to LEOs amusing and I have enjoy stirring the pot!
By the way, is that “911” call to report your partner to the police or to call for medical assistance for the victim or both?
I’m on my way out of town for the weekend so y’all have a good weekend!
You make a good point, that perhaps the second PO took appropriate action. I would think otherwise, since there was no intervention between the execution of the complaint and the case going before the judge. Had there been notification to IAD or the DA, the ECAB supervisor would have been told and the case dropped at arraignment.
But it’s possible. Just extremely unlikely.
Sure, it’s possible that the second cop called IA when he got back to the office. Not the way to bet, but possible.
Scott can, of course, speak for himself — he’s a pro at it, in fact — but I think that he doesn’t have disdain for LEOs. Neither, for that matter, do several of my cop friends — serving and retired — who do, though, express a fair amount of disdain for bad LEOs, and often in somewhat colorful language.
Of course I don’t disdain LEOs. And I see them all, not just the ones I know personally, as three dimensional people, doing good, doing ordinary and doing the occasional wrong. There are some traits that I have found to be fairly common (and as with most things, never true of all), and that I’ve found LEOs unable to see in themselves or unable to see as a problem.
Some LEOs see life as black and white. Either we love them or hate them. Nothing is quite that simple, and they would likely be of the view that I am their enemy. I am not of that view at all.