Rob Barris only wants the judge to be fair. Who doesn’t, right? Except fair means something different to the Okmulgee County District Attorney than it might mean to others, because Barris seeks to disqualify District Judge Kenneth Adair for being biased against police officers.
The Okmulgee County District Attorney has moved to disqualify one of the area’s two district judges from hearing all cases prosecuted by his office, saying the judge has a bias against law enforcement witnesses.
In a motion filed Monday, District Attorney Rob Barris contends District Judge Kenneth Adair has found that officers’ statements were false in four felony drug-related cases and used that conclusion to make rulings in favor of the defendants in each.
Cops lie? Film at 11. But then, the determination of that any particular police officer’s testimony in any particular case is true or false is a particular determination. It may be that a cop is a habitual liar, or that he fudged details in a specific case to nudge his testimony over a factual hump that might let a guilty defendant walk.
Barris wrote that he has been told Adair also has commented to others about officers — particularly those in Okmulgee — of having a “systemic” problem with “testilying.”
What’s meant by a “systemic” problem is a bit harder to address. Is Barris arguing that the judge approaches all cops as testiliars, either incapable of telling the truth, routinely fudging the facts to say whatever will achieve conviction or part of a “system” that either rewards lies or doesn’t frown upon them?
As a result of the disqualification motion, Adair on Wednesday stayed proceedings in more than 200 cases assigned to his court until December pending a hearing set for Aug. 28-30 and, if needed, an appeal on any decision made.
Barris declined to comment beyond his statements in the motion.
When the challenge is directed at one of two judges, the impact is going to be felt.
The motion has frustrated defense lawyers with clients in Okmulgee County, with two attorneys telling the Tulsa World that Barris is trying to punish Adair for working to verify the testimony that law enforcement officers give in his courtroom.
“It’s going to cause a chilling effect, I think, on judges in the future being able to scrutinize an officer’s testimony like they would any other person in the courtroom,” said Okmulgee-based attorney Justin Mosteller, who has four clients due in Adair’s courtroom within the next month.
No doubt the defense bar is going nuts over the District Attorney’s attack on the judge for doubting his cops, for verifying the truthfulness of their allegations, for not going with the odds when performing the task for which judges get paid despite their nearly complete inability to accurately perform the job.
Despite what Judge Judy says, who possesses special voodoo that enables her to berate a witness in three words or less for lying, judges have no magic power to decide which of two otherwise credible witnesses, two reasonable but conflicting versions of the narrative, are true. To physically check a crime scene may serve to reveal that testimony that appeared on its surface to be credible is not can break the logjam, but that isn’t often possible.
The question thus comes down to the presumption of regularity, whether it is presumed that a cop will testify truthfully until proven otherwise, such that a defendant or defense witness who disputes the police officer’s testimony must not be truthful. In a fair world, where a judge has no basis to distinguish one from the other because both are generally credible, the defendant would win. It’s not that the judge has to find the cop lying, as much as not find the cop so credible that his testimony per se trumps that of the defense. Unfortunately, it doesn’t tend to work that way.
It’s likely that many readers here will take no issue with a judge embracing a broad presumption of systemic testilying, as it conforms with our bias and experience. Be careful about being too gleeful about it. That a judge is open to the possibility that a cop’s testimony is false is an unusual, and wondrous thing, but it’s no better to presume cops to be liars than to believe cops to be inherently truthful.
Cops are no more nor less deserving of skeptical scrutiny than any other witness, and they do lie, though the proof isn’t that their lips are moving. A healthy doubt isn’t bias, even if it makes a prosecutor’s job harder. A presumption of testilying, however, may be a doubt too far.