Further reading on the problem of dishonest law enforcement agents

April 17

Thanks to all of you who commented or wrote in about my post on police officers who lie. Here are a few links:

1. John Balzas’s account of a case where the government pushed unsuccessfully to get a district court to retract its findings of adverse credibility:

After the court imposes its sentence–almost 6 months after the court’s ruling on the suppression motion, the prosecutor asks the court to amend the ruling to take out its findings and language indicating that the officers were not, uh, entirely credible in their testimony. The prosecutor does not ask the court to change any of its legal rulings, but simply to modify its language to delete any suggestions that the officers were not completely truthful while testifying. …

Certainly, the prosecutor’s motion to amend raises a number of legal questions. Does the court have jurisdiction to amend its findings after the judgment and sentence? Isn’t the prosecutor’s request a motion for reconsideration without legal grounds (i.e., no new facts or law)? But how about as a matter of policy? Why should the U.S. Attorney’s Office be trying to hide adverse credibility findings of its agents, especially when the court’s ultimate ruling is largely in its favor and the case is over? The government doesn’t represent the officers in this case, right? Isn’t there a strong public interest in having the facts come out?

That’s from this post. Here are part two and part three.

2. This story from the East Bay Express about the practice of keeping “Brady lists” of officers who lie:

Many police departments avoid employing cops who have falsified affidavits and lied under oath. The reason is that prosecutors are supposed to tell defense attorneys about the cops’ dishonesty, and thus have a difficult time winning cases involving those cops. … Some district attorneys in California keep lists of all ‘Brady officers’ in their jurisdictions in order to avoid being blindsided by a potentially unreliable witness. ‘A case isn’t necessarily un-prosecutable if an officer on our Brady list is a witness,’ explained Chief Assistant District Attorney Hal Jewett, who handles all Brady issues for the Contra Costa County DA’s office. ‘But if you have somebody with that kind of baggage being called to the stand, it frequently makes it much more difficult to prosecute that case.’

3. And this post from Scott Greenfield suggesting that my question was ill-formed and naive:

It’s a poorly framed question. But even if the question had been more thoughtfully framed, it would nonetheless suffer from the assumption that judges are some different type of being, caricatures of one mind, stereotypes, fungible robed functionaries who think as one. That’s how they look to outsiders. That’s how they look to young lawyers, who haven’t had the opportunity to know the individuals on the bench before they got there.

But once they assume the job, there are certain aspects that tend to weigh more heavily on a judge than we care to admit. …

So could the fact that a finding by a judge that a police officer committed perjury ruin a cop’s career influence his decision? Of course it could, but Baude thinks too hard about it. If it’s a game, and the rules allow police to lie in order to do the job we ask of them, provided they don’t get flagrantly caught, then the judge doesn’t penalize a player in the game for playing it too well or too poorly.

There is a spirit in the well of the courtroom that we may all be on different sides, but we don’t do anything to embarrass the other players, or make it nasty or personal. This is what they mean when lawyers are admonished to be “civil.” We don’t call cops liars. We don’t tell the judge he’s an ignorant fruitcake. We don’t point at the prosecutor for concealing Brady.

The only player in the game unworthy of “civil” is the defendant, because the object of the game is to put him in prison. And that’s why judges don’t find cops to be liars. It’s the same reason judges grow disgusted with criminal defense lawyers who won’t let the wheels of justice grind smoothly. We mess up the game.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
Comments
Show Comments
Most Read National
Next Story
Jonathan H. Adler · April 17