Radley Balko posts about a terribly depressing case, made even worse by the opinion of an appellate court that acknowledges how wrong it was and yet demurs.  Terrance Crossland was mowing his lawn, smoking a cigarette and minding his own business, a rather unremarkable beginning to a day that will haunt him forever. 

Last April, Crossland and his cousin were approached by two D.C. Metro officers on patrol “to gather information about a rash of recent shootings and drug sales in the area.” Crossland was mowing his grass while smoking a cigarette. The police acknowledge that neither Crossland nor is cousin were doing anything unlawful.  The two men were told to turn around, put their hands against a fence, and submit to a search. By both accounts, Crossland initially complied, then said, “Fuck this shit. I’m tired of this.”

Police say Crossland then elbowed one officer in the head, at which point he was punched, taken to the ground, kicked several times, and pepper sprayed.

Crossland says otherwise.  Witnesses say otherwise.  But there was no video, so the trial judge, Florence Pan, threw the default switch and found the cops credible and the rest of the world liars.  It’s not just that all ties go to the cops (they do), but that cowardly judges will not take the heat of finding that a cop lied on the stand.  

Even if they find against the cop in the tiniest manner, they will jump hurdles to explain how they are the most wonderful heroes in the world. They won’t risk a nasty word from the police union or the prosecutor’s office, always organized, focused and ready with a threat, in order to side with some powerless nobody. That could be bad for their career, or at least make their life momentarily uncomfortable. Why risk it?

Judge Pan’s effort to spin this one was particularly pathetic. From  Crossland v. U.S. :

The court specifically credited Officer Baldwin’s testimony, noting that it was corroborated by the testimony of Officer Castan. The court explained that it did not credit appellant’s testimony or that of the witnesses he called because “[a]lmost all of them had a bias” and because it was “not credible . . . that the police were out that day, randomly beating people up for no reason” and that even if they were doing that, it made no sense “that they would beat up [appellant], as opposed to Mr. Wo[]mack, whom they had a history with” and had arrested the week before.

The rationale is utterly empty, as if it wasn’t worth her time to think of a half decent way to endorse the lying.  It’s unlikely as Pan mailed in this pathetic excuse for a strawman that she foresaw Alan Gura finding the decision and handing it off to Radley, who would make sure that her vacuous effort did not go unnoticed.

As the appellate court made clear, there was no question whatsoever, none, that the officers engaged in an outrageous violation of Crossland’s constitutional rights when, for no conceivable reason, did what cops are wont to do, and tossed him because they were cops and they could. 

Pan’s lame strawman, that the cops “were out that day, randomly beating people up for no reason,” might reflect that Judge Pan is the most naive, out of touch, clueless judge in the District of Columbia, but for the fact that it’s impossible to take this seriously.  The reason why they beat Crossland was clear and obvious, he refused to bow to their authority. When cops toss a guy for no reason, and the guy responds with “Fuck this shit. I’m tired of this,” what else are cops to do?  They must teach him a lesson, give him a good tuning up to remind him that they own the streets.  You can’t allow people who have had enough of their constitutional rights being violated get away with it. The next thing you know, they’ll start hanging up on those police union charity solicitations.

Judge Pan knows this. Children know this.  Everyone knows this. She’s not stupid. She’s just not going out on a limb for a defendant when she doesn’t have to. 

And what of Crossland’s “biased” witnesses, because one cop lying and another swearing to it could never happen? This is the best it gets for defendants, to have any witnesses at all.  The funny thing about police confrontations is that they rarely happen in front of the Pope.  Most of the time, there’s no one watching, no one to say that the defendant didn’t do what they cops conveniently say he did.  Even then there is a witness or two, they are scared off by the threat of the cops paying them a visit to explain to them how they won’t take kindly to their calling them liars.

The defense is required to disclose the identities of its witnesses in advance of calling them to testify.  Even if only the day before, they are pretty well assured of getting a visit from police, often the very cops about whom they will testify as those are the law enforcement officers at the prosecutor’s disposal at that moment, who are charged with investigating the witness and “interviewing” them.  Mind you, the witness is under no duty to speak with the cops, but the cops don’t necessarily ask nicely, and witnesses are usually intimidated by the shield. So they have a nice chat.

The witness is informed that things will go poorly for them in the future if they take the witness stand and testify contrary to the police.  And poorly for their children. And their spouse. They will learn that the police are not kind to witnesses who make them look bad.  And the witness, who may love his children more than the defendant, often decides that he can’t remember anything.  Sometimes they take a vacation the night before their testimony.  Sometimes they just don’t show.

But Crossland’s witnesses did show. His witnesses testified. His witnesses did what they had to do, threats notwithstanding.  Likely, their desire to tell the truth was stronger than the fear of retribution, and they took the chance of invoking the cops’ ire and came to court anyway. Only to have Judge Pan dismiss them as biased. After all, they must be biased or they would have been scared off, like all good, honest witnesses.

For decades, credibility determinations like Judge Pan’s were routine.  This was before there were thousands of videos proving conclusively that cops sometimes lie, sometimes beat people for fun, sometimes do exactly what Crossland and his witnesses testified happened here.  On the flip side, they show that cops inclined to be so contemptuous of constitutional rights as to toss a person for nothing are similarly inclined to beat the crap out them when they fail to obey.

And Judge Pan, honoring the historic role of judge when confronted with a dispute between police and a citizen, disgraced herself by resort to the default with the least effort and the greatest degree banality possible.  But this is only the first part of the system’s failure.  More to come.