Rick Horowitz at Probable Cause, the blog with the really low standard of review, is still working on life in the gangland trenches. He’s compiled a set of rules for how to be a police expert on gangs, a subject that he’s been drilling home for a while. While noting that his rules won’t make the reader, or the criminal defense lawyer, an expert in anything under the sun, it’s more than sufficient to turn your ordinary cop into an expert on gangs for the purpose of testifying in court. Talk about a really low standard of review.
Rick’s first rule is the one that grabbed me.
Rick’s first rule is the one that grabbed me.
Rule #1: You are testifying about an evil, vile, lowlife gang member. They’re all the same.
If a slimy defense attorney tries to humanize her client, you must do what you can to resist. Any ordinary emotions, motivations, or other reasons for the gang member’s behavior must be explained away. Better yet, see if you can twist normal emotions into something horrible.
Slimy. That pretty much covers it. Like slugs. Or weasels. Or sluggy weasels (weaselly slugs?). The police are there to protect all the good citizens who have yet to be tasered from the gang members. Any effort to impede this goal from God is itself evil. And that’s why Satan has sent criminal defense lawyers to court, to block the saintly efforts of cops.
Obviously, the rhetoric is ridiculously hyperbolic. Some gang members are indeed bad people who have done bad things. Some alleged gang members aren’t gang members at all. A cop may say one is, and may well believe it’s true, but that doesn’t make it so. I know, it’s hard to imagine that a police officer could be wrong, but it happens.
Rick’s problem isn’t with cops doing their job, but the twisting of reality to accomplish the task. To the police gang expert, every breath the alleged gang member takes is for the benefit of the gang.
Obviously, the rhetoric is ridiculously hyperbolic. Some gang members are indeed bad people who have done bad things. Some alleged gang members aren’t gang members at all. A cop may say one is, and may well believe it’s true, but that doesn’t make it so. I know, it’s hard to imagine that a police officer could be wrong, but it happens.
Rick’s problem isn’t with cops doing their job, but the twisting of reality to accomplish the task. To the police gang expert, every breath the alleged gang member takes is for the benefit of the gang.
Did he kick a dog because it yelped and startled him when he accidentally stepped on its tail? No! Weren’t you listening?! That might be a normal immature human reaction. This dude kicked the dog to earn respect and to benefit a criminal street gang. If he let people think that he wouldn’t enforce the rules on respect in this instance, the next thing you know, he’d be a laughingstock and gang members would come from as far away as New Zealand just to beat him down and laugh at him.
In other words, the defendant must be a gang member because whatever he did, according to the police expert, is definitional proof and inherently connected to gang membership. Rick gave some additional examples twitting with Packratt, of Injustice Anywhere fame, using the subject of tattoos. If a defendant has a tattoo, the expert will testify that tattoos are “brands” typically worn by gang members. If the tattoo happens to say “Tiffany”, then the testimony is changed ever so slightly to accommodate, by the expert then saying that gang members typically brand themselves with the names of their girlfriends. You get the message. No matter what the evidence, the defendant can’t win. It’s always connectible to being a gang member, according to the expert.
The problem, of course, is that defendants, like cops, aren’t one-dimensional. Some things they may do wrong, but other things they do are just ordinary human acts, with no deeper significance or secret meaning. Just regular stuff like a regular person might do.
A defendant may even do good at one moment and bad another. Like the cop who will tase a 72 year old woman one day and save a kitten from a tree the next. We’re human. They’re human too. Except to the gang expert wearing the uniform.
The justification for this manipulation of truth is that the police officer who arrests and pursues the prosecution of a person he believes to be a gangbanger is that he’s taking one bad dude off the streets. It’s for our benefit. He’s protecting our safety, whether we want to admit it or not. The problem, of course, is that through his false expert testimony, he’s reducing a trial to a farce, and has set himself up as judge and executioner. He knows best, and the rest of the process is just a weigh station on the road to the big house, something to pass through to get to the ultimate goal.
That cops play this game with their expert testimony, converting a human being into a one-dimensional gang member, isn’t really much of a surprise. The question that nags me is why judges cooperate with this farce. If they know better and still allow it, they have no business on the bench. If they don’t know better and actually believe this nonsense, they have no business on the bench. But then, judges are human too.
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Daubert as applied in criminal cases is a whole different animal than the Daubert in personal injury cases.
That’s for sure. If criminal defendants were given half the opportunity provided to civil litigants, the criminal justice system would implode.
Clearly, the solution is for the criminal defense bar to make use of Cop Experts. They could testify that, for example, based on their experience and training, police officers often lie on the stand because they believe it’s immpossible to win cases otherwise, or that some cops like to get into fights and have tricks to provoke people into throwing a punch, or that cops would lose the respect of fellow officers if their testimony revealed police misconduct.
You know, I was kidding when I started, but this is sounding better and better. You could start with disaffected former cops—ideally Internal Affairs investigators or others who have experience with police misconduct. Perhaps they could take classes from each other to buff up their credentials.
But remember, most civil litigants never get to go to trial. At least when they are individual Plaintiffs, like in personal injury cases.
It’s another dirty little secret of the system: Most PI cases are thrown out by the judge on or even before summary judgment. By contrast, criminal cases are almost NEVER thrown out on motion.
There is great judicial solicitude for economy and sparing the “defendant” in such a civil case (an insurance company, in reality) the “anxiety” of having to go to trial – a solicitude which is not extended to criminal defendants.
We’ve all heard of “frivolous lawsuits”; we never hear of “frivolous prosecutions”, though they are far, far more common.
I think you explained well the way the police behave. I have seen it myself to often. This is why the public has a deep mistrust for police, which I feel is founded and as you said why do judges allow it? For god sakes you would think it would piss them off.
I really like this idea, but I’m sure you recognize no judge would ever allow it.
The irony is that the reason they will never allow it is the same reason they should never allow gang cops to testify as “experts.”
But you know what’s really maddening? The courts — particularly the California Supreme Court — justifies this because it’s useful to have an “expert” testify as to the social habits and customs of gangs. There’s just one problem: I’m not aware of any other situation where someone can be deemed an “expert” in an area such as anthropology (because, if we want to be honest, that’s what this really is) without having had one iota of anthropological training. I myself have had a ton of anthropology courses — nearly majored in it — but I neither would claim expertise nor, if I DID claim it, would I be allowed to testify as an expert in the area.
As to what Jane, Scott and John said: What I’ve tried arguing to my colleagues regarding the defense of gang cases against this cancer which has eaten the core out of the justice system is that we need to start making the criminal courts treat “experts” as they’re treated in civil courts. Frankly, even that wouldn’t make things right, but it would be better than what happens right now!
I think judges know that cops lie all the time. They also know that the entire system would fall apart if they did anything about it.
I live in Mississippi where pathologists can testify as to race and sex of the person who wielded a knife based on the wounds, where thousands of ant bites on the victim are magically transformed into the defendant’s (and only the defendant’s) teeth marks, where death by “alcohol, drugs and rough sex” becomes murder, etc., etc., etc.
The pathologist issues down there are just astounding. I can’t imagine working under those circumstances.
More bad cops:
[Ed. Note: Link deleted. Sorry Jane, but comments are for the posts, not for people to post links to other stories.]