My witnesses were there, ready, sitting on a bench in the hallway. We had them. The police had gone to the wrong address, a different address than was called in by the 911 caller, and that’s where they found the drugs and guns. They were fully prepped and raring to go, which is far more difficult than most people realize. Witnesses don’t want to testify for the defense. It’s like begging to make enemies of the cops, and in Washington Heights, nobody wanted to bring more attention to themselves from the 34 precinct.
The case was before Justice Charles Tejada, who was wearing the same tie as I was. He made a joke about it when he took the bench that morning. It was cute, but neither of us was too happy about it. Nonetheless, the suppression hearing got underway and the prosecution called its first witness, the arresting officer. He took the stand and . . . admitted that they went to the wrong house, a house that was on a street by the same name but ended in “terrace” rather than “road.” And just like that, it was over.
I went into the hall and told my witnesses they wouldn’t be needed. They were both disappointed and good about it. They didn’t like wasting their time, but they really didn’t want to testify.
The cop came out of the courtroom and I walked over to him. I have a habit of trying to talk to the cop after testimony. After all, you never know when you’re going to have to cross him again. He saw me talking to the witnesses and smirked. “Guess you didn’t need them,” he said. “Nope,” I replied. “You did the one thing I never expected and completely screwed me up.”
“You told the truth.”
He just smiled and walked away. There’s a hashtag going around public defender circles these days, #CopsLie. It was memorialized in a Daily News op-ed, Why blue lies matter: It is everyone’s business when police fail to tell the truth. The title is a cool play off “blue lives matter,” although this time no one is canceling their Daily News subscription. The idea isn’t remotely new or novel. I’ve written about it many times over the years. Even the New York Times, before it went woke, wrote about it, testilying. Again.
There are everyday lies that police tell. On an individual level, these lies can lead to wrongful convictions of vulnerable people, and on a systemic level, they can lead to irrational public policy, like when New York State rolled back bail reform this year.
To combat these lies, public defenders all across the United States recently launched a social media campaign called “Cops Lie: We Witness.” We organized this digital campaign to show that police abuse is not about a couple of bad apples or isolated incidents. For generations, police lying and abuse has been met with indifference by prosecutors, judges, and elected officials alike, with little to no consequences, despite the harms inflicted upon disproportionately black and brown working-class communities.
It’s been going on longer than generations, and it is, indeed, pervasive. And there are enough wiggle words in there so that it would be wrong to call this untrue. But it’s also not quite real, designed to create an impression that’s somewhat manipulative. Of course, for the cause, anything that works is fair game these days, even if it pushes the envelope of honesty. After all, the cops and prosecutors have being doing it forever, so why not the public defenders?
There are undoubtedly cases where innocent people are framed, with some notable cops whose careers seemed largely devoted to manufacturing crimes and criminals that didn’t exist. Louis Scarcella in Brooklyn was notorious, and even though prosecutors knew, they let it happen.
But for the most part, testilying isn’t about framing the innocent, but filling in the gaps. Cops testify at trial from memories they don’t possess, so they make up what the know they have to say. Or they lie about the peripheral pieces, the consent to search that was never given, or spewing of the confession in advance of interrogation. Sometimes, it’s worse, a denial of the beating needed to persuade the perp to cooperate. Maybe it was the hint needed to make the ID of the guy the cops were certain pulled the trigger.
There are far too many ways in which a little lie nailed a conviction to be described, but there was almost always a lie buried somewhere in a case. And it was just as true if the defendant was a paleface as a person of color, even though emphasizing the latter seems to be the only hook that makes the passionate take notice these days. Maybe the PDs don’t mind “white lies”?
Cops lying is so prevalent that Diana Nevins, a New York City public defender, says she warns her clients about it. “Literally public defenders have to prepare our clients not to have outbursts in court when #CopsLie because judges may use it against our clients instead.”
Every trial lawyer knows “the squeeze,” when the defendant grabs your arm and squeezes so hard it stops the blood flow, as he leans over and whispers into your ear, “he’s lying!” It’s weird how defendants are offended, no, outraged, by the fact that cops lie. Defendants lie all the time, to us, to their friends and family, and in the rare instance of testifying, to the jury. They don’t see a problem; after all, they aren’t cops, and cops are supposed to tell the truth. Defendants, not so much.
But like the story of the suppression hearing before Justice Tejada, there is a detail that might be missed if you focus too much on the cop who completely screwed me up by telling the truth. My client, a lovely guy, had the drugs and guns that were found. He wasn’t exactly a poor innocent guy, but a very guilty guy who was caught because of a screw-up.
The brilliant departed Murray Kempton had a line I think of often:
There they go again, framing the guilty.
Yes, indeed. Cops lie.