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 officers. 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.5
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 officers, 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.”6
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.7 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.”8
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.9
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 testifiers,” 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 file 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.10 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.
DISCREDITING THE POLICE
Ironically, Tyshaun Bullock had tried to dismiss David Bos, figuring—as many poor defendants do—that a public defender would be too overworked or underqualified to mount an assiduous defense. In this instance he was quite wrong, as Judge Jackson noted in praising Bos while denying Bullock’s motion for a new lawyer.
Bos was part of the elite office of federal public defenders in Washington, about twenty talented attorneys who are paid the same government salaries to defend the accused as assistant United States attorneys are to prosecute them. Nearly all federal districts have such cadres of lawyers to fulfill the government’s obligation, under the Sixth Amendment’s mandate for “the assistance of counsel,” to provide a lawyer to any criminal defendant who cannot afford one. By contrast, the individual states’ records on fulfilling the requirement vary from adequate to abysmal, since some rely on private attorneys assigned at low hourly rates to represent indigent clients. So overworked have public defenders become that they refused to take new cases in eleven states as of early 2009.11 When Georgia’s system ran out of money in 2008, a man facing the death penalty for murder, Jamie R. Weis, languished in jail for eight months without steady representation, which meant no defense investigation could be done while witnesses’ memories were fresh.12
Soaring caseloads provoked a revolt in Miami-Dade County, where felony defenses reached an average of 500 annually per attorney, compared with the 150 maximum recommended by the National Advisory Commission on Criminal Justice Standards and Goals. The average number of jailable misdemeanor cases hit 2,225 per lawyer, more than five times the recommended ceiling of 400.13<
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The backlash by defenders has been getting attention in the courts. An Ohio judge held a public defender in criminal contempt for refusing to take an assignment because of his heavy caseload; an appellate court quickly reversed. Taking the opposite tack, other judges have occasionally threatened to start releasing prisoners who can’t get lawyers and can’t be granted their right to speedy trials. Chief Justice Pascal F. Calogero, Jr., of Louisiana’s Supreme Court, told the state legislature that “unless adequate funds are available in a manner authorized by law, upon motion of the defendants the trial judge may halt the prosecution in these cases.… The courts, as guardians of a fair and equitable process, must not let the state take a person’s liberty without due process.”14
Some judges have ruled that high caseloads constitute ineffective assistance of counsel. And after defendants filed a class-action lawsuit in Washington State, a superior court judge imposed a settlement requiring Grant County to raise public defenders’ trial fees, fund an investigator for every four attorneys, and put a ceiling on each lawyer’s work of 150 cases a year.15
But the federal system does reasonably well, and the jobs are eagerly sought. Every opening in the Washington office draws applications from hundreds of young lawyers, including law clerks for Supreme Court justices.
Since the District of Columbia is not a state, the U.S. Justice Department prosecutes all crimes, from the momentous to the mundane, and decides whether to try them in federal court or in Washington’s Superior Court, which is equivalent to a state system. Drug and gun cases that would be heard in state courts elsewhere are often sent to federal court if the quantity of drugs is large or the defendant’s felony record is severe—and the sentences there are usually more severe as well.16 This puts a lot of street crime on the dockets of D.C.’s federal courts, and on the desks of the federal public defenders.
The defense lawyers occupy the entire floor of a building near the federal courthouse, and their offices throb with the same beat of intense synergy and brilliant bull sessions that can be found among reporters in the top newsrooms. In and out all day, to and from court and jail, the attorneys cross paths with one another in moments of mutual support and consultation, swapping assessments of judges, chewing over ideas for motions, sharing pieces of advice on case law, jury selection, and plea bargains.
They and their five investigators are persistent and relentless in ferreting out the slightest possibility of an unconstitutional stop or search or interrogation, the tiniest inconsistency among police officers’ accounts. They pepper the courts with motions for excluding evidence when they think the cops may have stepped over the constitutional line—motions that they rarely win. They are repeatedly frustrated by judges they call “pro-government,” usually nominated by conservative presidents.
“If the government can’t supply a reason for a warrantless search, the courts will provide it for them,” remarked A. J. Kramer, a jolly idealist who leads the team of defenders with a rapier zeal for the truth. “The police will do anything they want,” he said, “and the courts will search and try to find a reason.”
In these offices, there is a cultural skepticism about the police that spills into distaste and resentment. So often have the lawyers seen manipulated facts that they begin to see them everywhere, making an outsider who tends to trust the police feel gullible. An internal Web site called “Bad Cop. No Donut” carries a shadowy, Darth Vader–type image of a helmeted cop wearing a gas mask and wielding a long baton. It contains press reports of police infractions. There is a lot of impudent humor among these attorneys.
They are not cynics or extremists, though; they have sharp minds and centered judgments. The best of them think as precisely as surgeons, honing their arguments and trying to excise the tumors they see infecting the law. Privately, some federal judges praise them, pronouncing Kramer and his staff “terrific,” as Judge Friedman put it. “He’s a very good trial lawyer, he’s a very good appellate lawyer, he’s a very good manager. In most cases he’s hired good people and trained them well. He has a lot of credibility with the court.”
Since the lawyers attempt to preserve constitutional rights in the course of defending their clients, they must do so not as broad, sweeping campaigns that mobilize the country’s conscience, but merely case by obscure case, motion by motion, brief by brief. In the ad hoc system of adjudication, liberty is bolstered by showing the courts where it has been violated. The task is intricately painstaking, threaded with the precedents of arcane legal history, and rarely capped by landmark decisions.
So diligent defense attorneys pore through the backgrounds of police witnesses in a struggle to uncover and introduce evidence of wrongdoing, past and present. Prosecutors are obligated by a 1972 Supreme Court ruling, Giglio v. United States,17 to reveal information impeaching their witnesses, but they don’t always do so completely or soon enough for the defense to use it effectively in trial. Therefore, whenever a judge disbelieves a police account, federal public defenders in Washington circulate the officer’s name among themselves, filing it away in case the officer surfaces as a witness in future prosecutions.
Even then, however, a judge isn’t always willing to let the jury hear about a cop’s fabrication in an earlier trial. Kramer ran into this obstacle when the federal District Judge Richard J. Leon denied him permission to cross-examine Officer Efrain Soto, Jr., on precisely that point.
Kramer had the record. In a prosecution three years before, Superior Court Judge Harold L. Cushenberry, Jr., had declared, “I think Officer Soto lied. I think he lied” by giving “palpably incredible” testimony that he had spotted drugs in a defendant’s hand.18 In the new case, Soto claimed to have seen another man, Gerald F. Whitmore, run from the police, hold his right hand to his waist, and then throw a gun into a window well. A second officer saw the sprint and the asymmetrical movement of his arms but not the gun, leaving Soto as the lone witness.19
Yet Judge Leon blocked Kramer from using Judge Cushenberry’s finding of past dishonesty to question Soto’s present veracity. Nor would Leon allow jurors to learn anything else negative about Soto—that he had failed to pay child support and had violated regulations by neglecting to tell superiors that his driver’s license had been suspended. Leon ruled that Kramer could neither ask Soto about these matters nor call three witnesses to Soto’s untruthful character.
With the judge running interference, the prosecutor was free to call jurors’ attention to the absence of any indication that the officer had lied, and the jury, kept ignorant of Soto’s background, found Whitmore guilty of the gun charge as well as possession of a small bag of cocaine discovered in his pocket. Leon sentenced him to eighty-three months for the gun and, concurrently, one year for the drugs.
Kramer dug into the jungle of case law, wrote a fifty-five-page brief in appeal, and argued before three judges of the D.C. Circuit that Leon had erred. The appeals court, while finding the character witnesses too remote and biased to be allowed, agreed that Leon should have permitted Soto to be cross-examined on his prior untruthfulness, his license suspension, and his unpaid child support. “Nothing could be more probative of a witness’s character for untruthfulness than evidence that the witness has previously lied under oath,” the court declared. It overturned the gun conviction and left the drug penalty, which was shorter than the time Whitmore had waited in jail for justice. The government, lacking a sanitized chief witness, didn’t bother with a retrial, and he was released.
Two months after the court of appeals opinion, the U.S. Attorney’s office decided to keep Soto from testifying as the only officer to see a driver he had stopped drop a bag of cocaine on the ground. The prosecutor tried to introduce Soto’s testimony indirectly, through another officer’s account, so that Soto couldn’t be cross-examined. But Mary Petras put Cushenberry’s finding before the judge in the new case, arguing successfully that the stop was unjustified and the evidence inadmissible. The government filed an appeal, then withdrew and dropped the c
harge.20
It shouldn’t be so hard for an accused to exercise his Sixth Amendment right “to be confronted with the witnesses against him,” which naturally implies the right to confront their foibles as well. In principle, the credibility of any witness, including someone in law enforcement, may be challenged on cross-examination. But there are limits set by the Federal Rules of Evidence, which are promulgated by the Supreme Court and emulated by most states. How a judge applies them can obviously be pivotal to what a jury learns about a cop’s prior conduct, and therefore to the outcome of a trial.
The closest you could get to a laboratory test of this variable came in two trials two months apart, with two different results for two men, each of whom Sergeant G. G. Neill claimed to have seen throwing a gun as he ran away. After one judge allowed Neill to be cross-examined about investigations of his conduct, the jury deadlocked; in the other man’s trial two months later, different jurors were barred by a different judge from hearing the same information about Neill, and they delivered a guilty verdict.
The rules are aimed at moving a trial along efficiently without creating confusion or prejudice, and they apply equally to prosecution and defense witnesses. But some lawyers find them muddy and contradictory, a blurry labyrinth of obstacles and gateways.
For example, if a judge in an earlier case found that a policeman had done an unconstitutional search, a jury in a later trial could not be told unless the current judge regarded the violation as “evidence of the habit of a person or of the routine practice of an organization,” according to Rule 406.21 That has been practically impossible to demonstrate.
A judge also has discretion under Rule 608 (b) to allow cross-examination about a witness’s conduct “if probative of truthfulness or untruthfulness,” which means the defense may question the police about past allegations of dishonesty.22 That was the provision the appeals court found applicable to Officer Soto in the Whitmore case. But the opening is limited by another rule, 404 (b), which bars lawyers from introducing evidence of earlier wrongdoing simply to show that the misconduct is likely to have been repeated in a current situation. The goal is to avoid a detour into an old case, a trial within a trial to resolve disputed facts. So if the vice squad in the Bullock red-light arrest made another disputed traffic stop in a later prosecution, a defense attorney probably could not show the jury Judge Jackson’s written disbelief of the officers’ account in Bullock. The lawyer could only ask the cops about it, thereby diluting Jackson’s finding with their explanations and denials.
The Rights of the People Page 14