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Defending the System
Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.
—Justice Robert H. Jackson
AN INDIFFERENCE TO PERJURY
Here are two tales of a city. The first begins during twilight, about 5 p.m. on a December evening in the nation’s capital. A twenty-four-year old black man named Tyshaun Bullock is driving a Mercury Marquis. Three plainclothes “jump-out” offi cers of the vice squad, specializing in narcotics, happen to be directly behind him in an unmarked, dark green Chevrolet as he runs a red light and turns left at the intersection of Mt. Olivet Road and West Virginia Avenue NE. They activate a siren and a small bubble light on the dash, and he pulls over.
Through his rear window, the offi cers see Bullock bending down and leaning side to side, as if hiding drugs or a weapon—or reaching for a gun. They have been trained to interpret such movement as suspicious, so one officer approaches the car on each side, while the third hangs back. They order the driver out and ask if he has any guns or drugs. “No, not on me. You can search me,” Bullock replies. An officer does a precautionary frisk and finds nothing.
A second officer then asks his permission to search the vehicle. Bullock agrees, and the officers lift the back seat, where they discover twenty-eight grams of crack, nine grams of powder cocaine, and seventy-eight grams of marijuana. They arrest Bullock for the drugs and, in their official report, justify their initial stop by citing him for running the red light. That’s the first story, sworn to under oath.
The second narrative begins a little earlier in the day. The Mercury that Bullock bought three months ago has been quitting on him all afternoon. Stalled on Mt. Olivet, he gets a jump start from a truck, leaves the hood up and the engine running, and walks down an alley to urinate beside an abandoned house. He is wearing the uniform of the ghetto: baggy khakis, a black sweater, a black jacket, black boots, and a ski hat partially covering his dreadlocks.
As he looks over his shoulder, he notices a dark green Chevy stop across from the alley and recognizes the men inside as a jump-out squad. Indeed, as he walks out of the alley while the officers watch, he realizes that he has seen one of them, Vincent Witkowski, at rallies where Bullock has spoken protesting police corruption. “So now in the back of my mind I’m saying I’m going to get messed with,” he testifi es later. Bullock works in an organization led by his father called Cease Fire: Don’t Smoke the Brothers, which teaches street law and preaches against violence and police brutality.
He closes the hood, gets into his car, and is careful to fasten his seat belt, having been stopped once before for not buckling up. Aware of the jump-out squad behind, he drives along Mt. Olivet, enters the intersection on a green light, waits for oncoming traffic to clear, and swings left onto West Virginia as the light turns yellow. The siren sounds. “When I realized that they were stopping me,” he later tells the judge, “I was saying, Here we go again.”
He does not bend over or move side to side. He follows the procedures he has taught to young people in his program: sit still, put the car in park, turn off the engine, and place your hands on the wheel “where they can see them [because] you don’t want to excite the police.”
Witkowski, approaching the driver’s side, tells him to produce his license and registration. Bullock asks why he’s been pulled over. Witkowski repeats his demand for the documents. Bullock asks again, and the officer says he ran a red light. Bullock denies it and gives his version of events in the intersection. As he tries to explain, he senses that “the testosterone level was kind of going up,” as he later testifies. Witkowski asks a third time for his license and registration, so Bullock reaches for the glove compartment, where he keeps his registration, but Witkowski stops him with a command: “Get the fuck out of the car.”
Walking him to the rear of the vehicle, Witkowski remarks, “I know who the fuck you are, I know who your father [is], I know the work that you do.” Another offi cer then searches him by pulling everything out of his pockets—his extra keys, his cell phone, his money—a far more intrusive search than the external pat-down allowed under Terry to check for weapons. Because of his work, Bullock knows this violates the Fourth Amendment, but he doesn’t object, because he fears an escalation. He intends to file a complaint later at the Fifth District, a plan disrupted when the officers search his car—without requesting or receiving his consent—and come up with the drugs. That’s the second story, also delivered under oath.
Judges rarely choose to believe a defendant’s version over a policeman’s; someone facing years in prison has a high motivation to lie, after all. Yet the police also encounter tempting opportunities to shade the truth to get convictions and defend their professional behavior. Thanks to the Supreme Court’s pro-police permissiveness, cops travel the streets in a legal haze of warrantless searches where small variables can easily be adjusted in the offi cial narrative: furtive movements and suspicious answers, the smell of marijuana, evidence glimpsed through a car window, tips from nameless informants, implicit agreements to search, and myriad traffic violations where no impartial corroboration exists. Sometimes, it takes just a slight revision of a fact to put the police action on the constitutional side of the line. One technique, according to a veteran narcotics cop, is to stop someone, search him, and if anything is found, to justify the stop by reporting that he was carrying an open container of beer.
Officers who work narcotics or guns are not constitutional scholars, but they are trained to understand that if an initial traffic stop is illegitimate, all its results—including even permission for a search—are usually considered “the fruit of a poisonous tree” and cannot be used in evidence. Therefore, dedicated defense attorneys relentlessly scour the record and dispatch investigators to sniff out the scent of a wrongful arrest. And in Bullock’s case, his government-provided lawyer, an assistant federal public defender named David Bos, didn’t have to hunt for long, because Bullock himself had noticed a way out of his predicament: red-light cameras at Mt. Olivet and West Virginia.
Once the light turned red, any car entering the intersection was automatically photographed, and a ticket was then mailed to the registered owner. When Bos obtained the records, he found no picture of Bullock’s car. It had not triggered the camera. So here was an objective, electronic witness contradicting the police report’s assertion that Bullock had driven into the intersection “as the traffic signal turned red.”
The officers then changed their story by changing the color of the light to yellow—a valiant effort to save their case, but not quite good enough. Not being traffic cops, they didn’t know the law and evidently failed to look it up. The statute permitted a driver to go through yellow if he couldn’t stop safely.
This was the clincher, Bos thought: His client had committed no traffic violation. But to be on the safe side as he moved to suppress the drug evidence, Bos prepared several other layers of argument, as a skilled defense attorney will do. First, he noted, plainclothes police in unmarked cars were explicitly forbidden by a department regulation from enforcing traffic laws except when “a violation is so grave as to pose an immediate threat to the safety of others.” That rule, broken by these offi cers, made the traffic stop look like a mere pretext for a drug search, Bos contended.
But it didn’t matter, for as the government correctly countered, pretextual stops were permitted by the Supreme Court under a unanimous 1996 decision, Whren v. United States.
Second, Bos argued, the alleged consent to search was involuntary, since Bullock was in custody. Third, even if the judge found voluntary consent, it did not extend to “ripping the back seat out.”
Finally, if the case went to trial, Bos was ready to inject reasonable doubt that the drugs actually belonged to Bullock. They might have been inadvertently left concealed when the car was sold to him a few months earlier, the lawyer said, or they could have been planted. A homeless man had told Bos of having seen an officer, with something in his hand, approach the car just before one of the searchers announced the discovery of narcotics. Such testimony might have swayed jurors who distrust the police.
But these allegations never had to be made, because federal District Judge Thomas Penfi eld Jackson found the offi cers untruthful. “Not only was their subjective intent at all times to stop and search Bullock and his car,” the judge wrote bluntly, “the Court concludes they had no probable cause to stop him for a traffic infraction and they knew it. They cited him for running a red light—not a yellow—and would probably have continued to insist that he had done so had it not been discovered that the watchdog camera at the intersection of Mt. Olivet and West Virginia had caught no picture of Bullock entering the intersection on a red light. The officers now recall that it was a yellow light Bullock disobeyed, but he clearly did not. The pertinent traffic regulation obliges a driver to stop (if he can do so safely) before reaching the crosswalk; even by the officers’ account Bullock was beyond the stop line and moving through the crosswalk into the intersection when the light turned yellow.” Jackson also found that Bullock “gave no true permission, much less an invitation, for a search of either his person or his automobile.” In other words, the police officers lied under oath. The judge granted Bos’s motion to suppress the drug evidence, the government dropped the case, and Bullock went free.
Nothing happened to the cops, though. Despite the rare clarity of this ruling, the officers were not held to account—no perjury charges or suspension without pay, just the typical inaction that prevails even when judges think that policemen have testifi ed falsely. At most, such offi cers are kept off the witness stand in subsequent cases lest their credibility be assailed by defense attorneys; prosecutors substitute other cops involved in the searches. Those under investigation by the U.S. Attorney’s office in Washington are placed on the so-called Lewis List, named after a 1979 case that was thrown out because the prosecutor failed to reveal an officer’s transgressions to the defense. Harsher measures are uncommon. “There’s an indifference to perjury,” said Bos. “The judges who get most upset are the former prosecutors.”
Judges themselves cannot always tell when perjury has been committed. The black robe confers no clairvoyance, and the perspective from behind the bench is less incisive than it may seem to laymen who sit in the hard pews of the courtroom. In their quiet chambers, some judges are willing to refl ect on their uncertainties. “Most police officers are trying to do the right thing and are trying to do their job properly,” federal District Judge Paul L. Friedman said carefully, “but they will push the envelope and try to get as close to the line as they can. There are times one suspects the police are exaggerating and embellishing, but it’s very hard to discern.”
It’s especially hard because “in suppression hearings, it’s the rare defendant who will testify,” Friedman said. The judge almost never hears directly from the accused; the lawyers mount the arguments. A defendant’s insistence that he gave no consent to a search, for example, may seem less credible when conveyed through his attorney. “Unless there’s another witness to the search who’s not at risk of prosecution, in most suppression hearings all you have is the police testimony. It’s uncontested testimony. What do you do with uncontested testimony?” Friedman asked. “It’s one person’s word against—nothing.”
Lawyers don’t like to call defendants to the stand for three reasons, according to A. J. Kramer, the Federal Public Defender in Washington: First, judges almost always believe the cops instead of the accused, he said. Second, if the defendant later gives trial testimony, which is more important, it can be undermined if the prosecution finds differences from his statements at an earlier hearing. Third, Kramer said candidly, “Most of our clients are not good witnesses because they get nervous, confused, have bad memories, and tend to say things that don’t help them.”
The allegation that police lie in court bounces off some judges like water off stone. Astonished, an Alabama judge I talked with could hardly get his mind around the concept. He could see why a policeman might be automatically believed, he said, but not why an officer would be automatically doubted. The judge thought it reasonable that defense attorneys tried to exclude potential jurors who said they would probably credit any police testimony, but when prosecutors routinely questioned the jury pool about tendencies to disbelieve a witness because he was a cop, the judge was unsettled. “Isn’t it amazing that that question can even be asked?” he remarked.
It is not amazing, of course, as the judge went on to illustrate with another standard question he heard from prosecutors: “Have any of you folks had an unpleasant experience with a law enforcement officer?” Hands would go up, the judge observed, many of them raised by black citizens. Any predilection either to believe or to doubt a police witness was enough to keep you off a jury, he said.
“We have trouble getting black men on juries because they are asked if they’ve ever had any bad experiences with the cops,” said Mary Petras, an assistant federal public defender in Washington. “I think, Shhh! Don’t say anything! Just take your seat on the jury!”
Some prosecutors would rather have middle-aged black jurors from drug-ridden neighborhoods than liberal whites who live insulated from the scourge of gun-toting dealers and junkies. If the evidence is strong, prosecutors say, the fear of crime overcomes the skepticism about the police. Still, in a case relying too heavily on the testimony of one white officer, the defense may stir up enough doubts to get a hung jury or an acquittal. It is hard to fi nd a black man in America who has not been hassled by a cop somewhere, sometime.
How widespread is police perjury? The impression depends on where you sit. “I think it’s a common occurrence,” said Sheldon Perhacs, a veteran defense attorney in Birmingham, Alabama. It’s called “testilying,” said a New York attorney, Andrew Patel.
“I think that police shade the truth everywhere; I think prosecutors turn a blind eye to it,” said Greg Spencer, an assistant federal public defender who worked in Philadelphia and Washington.
The police are driven by careerist pressures, said Tony Axam, an experienced lawyer in Washington’s federal public defenders offi ce. “The officers are willing to either lie or buttress or bend the truth because this is their arrest,” he contended. “If they find a gun on the street, it’s not as good for them . . . if they just take the gun and turn it in to the district and say, ‘This is what we found on the street.’ ” Therefore, he concluded, “There are five guys standing around the gun, and they arrest one. They don’t know whose [it is], but I guarantee by the time they get to court there’s going to be some movement by that guy, there’s going to be something that distinguishes him from the other four.”
“I do not believe that most of our Washington police lie,” countered a prosecutor who preferred anonymity. “There’s not the need for it,” given that the courts have drawn constitutional boundaries to permit officers reasonable latitude. So, I asked, why would so many defense attorneys perceive a pattern of falsehoods? “Most defense attorneys are smart, and they haven’t gotten around to the idea that most crooks are dumb,” he replied, and then corrected himself: “I can’t speak for most crooks. Most crooks we catch are dumb.” The lawyers think that “nobody could possibly be that dumb, so the police must be lying.”
It was an entertaining answer that probably applied to the first few minutes of a defense attorney’s practice, when he learns, as Kramer observed, that street crime is usually committed by characters so dim that they can’t be trusted to testify in their own behalf.
While criminals are shocking their lawyers, the police are doing the same to prosecutors. So routine was the manipulation of facts by local police in Newark, New Jersey, that seasoned detectives asked Kenneth Ballen, a young assistant U.S. attorney in 1983, what he wanted them to say to make a questionable arrest look legal. “I said, ‘We don’t do things that way,’ ” Ballen recalled. “The cops said, ‘That’s the way we always operate with the prosecutors. We ask them to tell us what they need before we tell them what happened.’ ”
The detectives had entered a house three hours after an informant had called saying that a fugitive, for whom they had an arrest warrant, was inside with a bank-robbery suspect named Angelo Rivera. They had probable cause on Rivera, who had bought a car using stacks of cash still in the bank’s wrappers (brilliant), but they didn’t bother to get an arrest warrant; they just grabbed him when they saw him with their fugitive. They claimed consent for a warrantless search of the house, which turned up a gun, but Ballen didn’t believe them, so he never planned to introduce the gun into evidence. And he didn’t need to: Rivera confessed after his arrest. The question before the judge was whether the arrest was legal.
“They had screwed up, and they wanted guidance,” Ballen said. “They fully expected to get it. This was the way they operate. They go out and do their job, and when there are legal problems the job of the prosecutor is to help them along with their testimony to comport with the law. And I wouldn’t do it. They did not like me. It was a very antagonistic relationship. They were very hostile toward the law. They ripped up their subpoenas from defense counsel, so I had to subpoena them.”
Ballen put them on the stand with instructions to tell the truth, didn’t vouch for them, and argued instead that the warrantless arrest was valid because Rivera was “in plain view,” like physical evidence that could be seized. It was a novel application of the concept to a person, but it worked; the judge ruled the arrest legal, the confession stood, and Rivera got twenty years.
“They were incompetent,” Ballen said of the police offi cers. FBI agents never pulled such a stunt with him. If they revised their facts, he never knew, because “the FBI was smart enough that they would never go in to a prosecutor” to collaborate on a fabrication. “They would have changed the story themselves beforehand.”
The country has seen egregious examples of police dishonesty. Some three hundred convictions in Philadelphia were overturned in the 1990s after a cell of corrupt cops in the Thirty-ninth District was found to have planted narcotics and rigged confessions; six officers pleaded guilty to federal charges, and the city spent more than $30 million to settle civil lawsuits.
A Los Angeles police unit, Rampart Community Resources Against Street Hoodlums (CRASH), was found in 1999 to have been selling confiscated drugs, shooting unarmed men, and planting narcotics and weapons to get convictions. One of the offi cers, Rafael Perez, had no remorse. “These guys don’t play by the rules; we don’t have to play by the rules,” he told investigators. “When I planted a case on someone, did I feel bad? Not once. I felt good. I felt, you know, I’m taking this guy off the streets.”
After the scandal was exposed, 156 convictions were thrown out, the city paid $75.5 million to settle lawsuits, nine officers were charged, and twenty-three were fired. Several years later, defense attorneys told an investigating panel that problems persisted and cited “compelling examples of erroneous arrests, inaccessibility of evidence needed for fair trials, coercive interview tactics, evidence suppression or planting by officers, alarmingly flawed investigations and police perjury they contend were ignored by judges, prosecutors and LAPD.”
Since only a tiny fraction of criminal cases goes to trial, police officers can gamble that they won’t be cross-examined. And even in trials, judges often block probing questions by defense attorneys. They did so in ways that prevented the Rampart cops from having to answer for implausible and inconsistent stories. Judges who are elected, as in Los Angeles County, are loath to be seen as soft on crime even when they run unopposed, lest they draw an opponent into the race, which can cost them $100,000 or more in campaign spending.
Such extreme incidents stand at one end of a spectrum of police behavior that runs from abject criminality to pure honesty. In between, in the everyday work of investigations, arrests, and prosecutions, the truth may be shaded more subtly. And sometimes the jurors will see through the deception.
“Our cops are notoriously bad testifi ers,” said Michelle Peterson, an assistant public defender in Washington. “They do lie. They want to make the story a little bit better.” But they can’t fool all of the jurors all of the time, especially those from poor neighborhoods where cops don’t always behave impeccably. If conservative, middle-class communities contain pro-police jury pools, the nation’s capital has a more skeptical mixture, and a lawyer who can drive a small wedge into police credibility finds that “it’s very easy to convince the jury that there’s reasonable doubt,” Peterson observed. A federal judge who spoke with jurors after one acquittal “was shocked when they said that uncorroborated police testimony is not enough.”
For attorneys who represent those charged with drug and gun crimes, the precarious grips on the possibility of acquittal are often carved out by police error or misconduct. If the police adhered strictly to the constitutional limits set down by the courts, as permissive as they have become, the lawyers would have little cause to fi le motions to suppress evidence. The attorneys tend to see themselves defending not only their clients but the system itself. If they do not monitor, investigate, challenge, and illuminate the transgressions by the police and prosecutors, who will? The courts are passive by design; they can adjudicate only those actions and issues presented to them. Furthermore, the press is evaporating with the declining staffs of newspapers, which once probed and investigated and thereby kept the police in check. After Baltimore police in January 2009 stopped identifying officers who had been involved in shootings, The Sun, the largest local paper, did no digging and no effective reporting to uncover the name of the cop who shot an unarmed man a month later. If even police shootings don’t merit aggressive reporting, intricate violations of the Fourth Amendment have no chance of emerging from the shadows. Only vigorous defense attorneys are left to prevent those constitutional protections from withering.