Among the reforms Philadelphia District Attorney Larry Krasner has instituted is a list of cops whom he won’t put on the stand because of their history of misconduct.
Philadelphia’s Fraternal Order of Police Lodge 5 is suing because District Attorney Larry Krasner has a list of cops with bad records, and his office uses this list to determine whether those cops can be called to the stand to testify in cases.
The reason for the database’s existence is eminently logical—if prosecutors use testimony from police officers with a documented history of misconduct, the defense can then bring that up and use it to cast doubt on an officer’s integrity and testimony and seed doubt in the jurors’ minds. In short: Part of the purpose of the list is to keep cops off the stand that could potentially wreck the prosecution’s case and also to alert prosecutors in advance about these potential problems.
There is a duty, as the Supreme Court held in Giglio, to disclose to the defense impeachment material, information and evidence that would allow the defense to impeach a witness’ testimony. It’s honored mostly in the breach, as the defense is left without any means of knowing whether there is Giglio material unless the prosecution reveals it. If they don’t, there isn’t.
Except Krasner has not only taken the position of honoring Giglio, but of actively creating a list of cops whose misconduct makes them uncallable as witnesses as far as he’s concerned. And, to no one’s shock, the police union isn’t happy about it.
But the police union doesn’t see it that way. They are filing suit because there’s no due process system where the police officers involved can challenge being put in the database in the first place. As a result, this impacts their jobs and they have no recourse in the matter. The lawsuit argues, “For such police officers, critical parts of the work performed by police officers are restricted, resulting in the lost wages, damage to reputation and professional harm to those police officers.”
It’s certainly true that it will have an impact on lost wages, as the overtime for testifying is a big deal. It usually involves preparation, waiting around to be called, double-time on regular days off, and can add substantially to a cop’s bottom line. When a cop is so bad that the prosecutor refuses to put him on the stand, he’s going to lose money.
But the Fraternal Order of Police isn’t complaining, per se, about taking the profit out of
crime testifying. but about the lack of due process. There’s no mechanism for the police to challenge being put on the list of cops so bad that they can’t be called as witnesses. Does this violate their due process?
The FOP’s suit states that the creation of any list and disclosure of the names of suspect officers constitutes a “deprivation of the fundamental right to reputation protected by the Pennsylvania Constitution.”
The initial question is whether police have a right to be called as a witness. The answer seems to be fairly obvious: of course not. The decision of who should testify is never left to the discretion of the police, but to the prosecutor. And if the prosecution believes that any individual would undermine his case, he doesn’t have to call them. But that’s not the crux of the matter here, as it’s not merely the fact that Krasner, as well as some other prosecutors who are doing the same, has decided that there are “do not call” cops.
Rather, the problem is that he’s got a list, and it’s the list that provides the basis for the FOP’s attack.
Among the questions the union wants answered, McNesby said, are how an officer’s name gets placed on the list and removed from it, and what guidelines and protocols are used to create the list.
“In every profession, you’re going to have some bad apples, but what is the time frame for getting off the list?” he asked. “There’s going to be times when they’re not going to call an officer in certain cases, but the bottom line is: Are they going to be vilified forever, are they going to be blackballed forever?”
By having your name placed on the list, you’re named and shamed as a dirty cop. Does the cop deserve to be a pariah? The claim of harm to reputation is a cognizable claim, even if the cop has no right to overtime or to be called as a witness. What are the criteria for vilifying cops? What can a cop do for redemption? Where does a cop go who didn’t commit the misconduct alleged to clear his name?
In a different world, there is a sound argument to be made that dirty cops shouldn’t, and wouldn’t, be cops for long. They would be outed and fired, never to be handed a shield and gun again. It’s not the sort of job where misconduct, whether unwarranted violence or deceit, should be tolerated. But that’s not our world.
Whether it’s because of tolerance within the police department, or an arbitrator’s decision that beating the random cuffed perp wasn’t worthy of discharge because there are so many other cops who did so and didn’t get discharged, they remain on patrol. The due process to which they might claim entitlement would be vindicated during their disciplinary hearing rather than at the point where the bad cop, still on the force, is put on the “do not call” list.
In other words, prosecutors like Krasner are put into a dubious position because bad cops remain on the job. If they didn’t, there would be no need for a list. But Krasner’s first duty is to the law, not the cops, and particularly not the cops’ financial interests, so his refusal to call cops he deems, in his discretion as the elected prosecutor, to be too tainted to provide reliable testimony and potentially undermine a prosecution, and thus cause him to lose a case, presents a problematic conflict. Since cops won’t police themselves, what’s an honest prosecutor to do?