After The Reform Applause Dies

Passionate cause activists get angry with trench lawyers,* because some of us never seem to appreciate the symbols of success as much as they do. After all, didn’t they say they were going to change their evil ways? Didn’t they acknowledge they had been doing it all wrong, and now they’re going to get it right? Why won’t we celebrate with them? Why must we always be so . . .

There is a laundry list of big issues that has been floating around for a while, a generation in some instances. Remember when the National Academies of Science put out its report that junk forensics were, well, junk? That was 2009. We got all excited.

The President’s Counsel of Advisors on Science and Technology said it again a few months ago, as if the 2009 report never happened. Jessica Gabel Cino, associate dean at Georgia Law and former Fault Lines contributor, wrote a lengthy post about “what now?” Much as we adore having our beliefs validated, it’s not quite enough. Thanks for the tummy rub, kids, but now you actually have to do what you said you were going to do.

But that takes focus, effort, thought and time, and by then, the advocates are off to their next cause célèbre . We, the janitors of the legal profession, remain, cleaning up the mess.

While the list of reforms that never quite happened is long (remember when we realized how important double blind sequential identifications were and why other procedures were prone to false IDs? Good times), Jim Dwyer, who’s spent some time watching us janitors clean up the mess in the trenches, wrote about a promise that was so totally obvious and easy to fix that it seemed like a no-brainer.

A police commissioner promised in September 2013 — three years ago — that city detectives were ready to begin taping interrogations in the most serious crimes. In testimony before the City Council in September of this year, the city’s chief of detectives wholeheartedly endorsed the idea of recording the whole process, and he said that it was already city policy.

Those are promises, not law. It is a simple matter to see the gulf between a policy announced and the way things actually work.

Remember that? There was dancing in the streets? Finally, oh finally, there would be video of interrogations instead of just the confession after Mr. Reid did his job.  After all, a police commissioner promised. He promised. What more do we need?

One morning in September, a line of people turned up at City Hall to speak about a truth that is beyond public dispute: When people are being questioned about possible involvement in crimes, the interrogation should be recorded from start to finish.

Until recently, the custom was for detectives to question a suspect until they had extracted admissions of guilt, and only then turn on the cameras.

Years ago, cops would testify that they lacked recording equipment, or at least working equipment, since they always managed to find equipment when it was good for them. But it’s hard to argue when they tell you some gadget wasn’t working, because everybody knew gadgets didn’t always work. Except when they did.

But today? Every person from the age of 12 6 on carries a video recorder with them at all times. There’s no excuse. And yet?

City officials say that 5,000 interrogations have been recorded, and that every detective bureau now has the equipment. But at City Hall that afternoon in September, two judges, Mark Dwyer and Daniel Conviser, testified that they had seen few cases in which the interrogations — as opposed to the confessions — were recorded.

“One can speculate that some old-fashioned detectives may not want to have their methods on video as it might embarrass them,” said Judge Dwyer, a former prosecutor.

It’s not that it never happens, but the promise was that it would always happen. Or, giving the cops some leeway for their anticipated screw-ups, because cops, it would happen most of the time. Yet Justice Dwyer, who sat in a trial part in Kings County (which is Brooklyn for you hipsters), doesn’t see it.

No doubt he had more to say about it than speculating as to why dinosaurs wouldn’t like it. Of course they didn’t like it. Video meant they couldn’t sanitize their testimony, make it all “milk and cookies” before the perp spilled his guts. Hell, keeping the sausage making secret was an inviolate rule for the feds forever, The feds said they were going to change that too. I wonder how that’s working out.

And what, you wonder, is the significance of this promise unkept?

Nationally, false confessions were made by nearly 30 percent of all the people who have been exonerated through DNA testing. In New York State, the percentage is even higher: Of 29 people cleared by DNA, 14 had falsely confessed. With the cameras rolling, almost every one of those 14 innocent people managed to provide details known only to the real culprits. In a case that reached the state’s highest court, the judges came to the common sense conclusion that the detectives had fed those details to the person being questioned, either accidentally or otherwise.

The reliance on wrongful convictions, proven by DNA, is an unfortunate by-product of the system. It deflects attention from the far vaster group of defendants for whom no DNA is involved and for whom no one will ever give a damn, whether because they copped a plea or their crime wasn’t front-page news. We obsess over a minute fraction of cases while ignoring tens of thousands of cases where the same thing happened, but they lack the sex appeal to make it onto a reporter’s radar.

And where are the slactivists, so thrilled that their change.org petition got a thousand signatures or their Facebook post garnered a thousand likes?  They moved on after “winning” a promise of change to their next very sad trauma in need of attention, like whether the detectives will ask perps their preferred pronouns before they manipulate them to confess to the Lindbergh kidnapping rape of a jogger in central park with the Reid technique.

While a celebrated promise goes unfulfilled, where are the passionate cause activists? They’re clogging up the twitters and New York Times real estate crying about how the next administration won’t be as wonderfully reform-y as the last one. As if the dead body on the streets of Rahm Emanuel’s Chicago will be differently dead when Trump steals control than Laquan McDonald. And we’ll still be cleaning up your mess.

*At least some of us.


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9 thoughts on “After The Reform Applause Dies

  1. REvers

    “One can speculate that some old-fashioned detectives may not want to have their methods on video as it might embarrass them,” said Judge Dwyer, a former prosecutor.

    I can’t imagine that a defective wouldn’t want the jury to see him stuff a gun barrel up some guilty bastard’s ass. What better evidence of serving and protecting can there be?

      1. REvers

        I write exactly what I mean to write. 🙂

        I had that same discussion a few years back on our state bar bulletin board. The starched-underwear crowd was simply appalled. The folks who actually knew the location of the courthouse all understood perfectly. It was a marvelous shitstorm.

        The funny thing is, I no longer remember what I said. That sort of reduces the value of the war story.

  2. Matthew S Wideman

    Summer 2014, I was using my white privilege to eat sushi at an outdoor restaurant in a trendy area if St. Louis City. Blacks Lives Matter were blocking traffic and marching down the street yelling and protesting. I asked a young woman what she was protesting….the drug war? Police brutality…. She stated, “they wanted body cameras for the police officers in St. Louis to protect minority rights”. I was perplexed how walking down the street at 10 p.m. would help a broke city pay for millions of dollars worth of equipment??? It’s the end of 2016, and body cameras are still a “pilot program”. I don’t think this generation of SJW activitist can hold onto an idea long enough to see anything through to any sort of logical conclusion. In STL, it seems we go from one outrage to the next.

    1. SHG Post author

      When BLM began, and was focused on cops killing black people caught on video, it seemed possible that it would be a watershed moment where everyone, black and white, would finally demand limits and penalties for excess force. And then the movement got…hijacked? diverted? diffused? I dunno. But that brief shining moment was gone, and the focus and momentum was lost.

  3. Dragoness Eclectic

    Does it make you feel better that the July 2016 issue of National Geographic had a cover article on the flaws in modern forensics, taken directly from the 2009 report? A lot more people read NatGeoSoc than random government reports.

      1. Dragoness Eclectic

        I do? Perhaps I should rephrase: does having the issue out there in front of the general public in such a high-profile publication give you any hope that it might get some real reform going? Or at least encourage judges and juries to be less kneejerk unquestioning of bad science?

        I worry about people who seem to have no hope.

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