Sunday, May 29, 2005

Testilying: Where perjury goes unpunished

Public Defender Dude: PD Liable in Rampart Frame-ups


There is a joke that criminal defense lawyers sometimes tell when they talk about cases like those cited above. It goes something like this "Q: How can you tell when a cop is lying A: You see his lips move." Cynical? Yes. But like all jokes there is a grain of truth to it. The fact is that police perjury, or testilying, is a reality that supports a bigger lie, That a trial is a search for the truth. It can't be unless all of the witnesses do in fact tell, at least their version, of the truth.

What bothers me most is not the idea that police lie. No group: police, lawyers, judges, politicians, is immune from having bad apples. What bothers me is the level of toleration for such behavior if it comes from a person or group that is supposed to uphold the law.

I once had a trial with a very good Assistant District Attorney. A real straight shooter if ever I met one. We both agreed after the trial (which I miraculously had won) at least two of the police witnesses had lied. I asked my friend what he would do. He shrugged and said he was going to report it to a superior in his office who would let it drop. I asked why they would not prosecute what I saw as a clearly important case of wrongdoing. The reply astounded me and to this day disappoints me. My friend said " If we were to go after these guys, Win lose or draw we get trouble. We give defense attorney's fodder for their cannons and we may lose a bunch of important prosecutions of drug and mob guys." He continued, "their friends and the rest of the patrol, rather than see us as watchdogs will see us as soft on crime. They think of us as a team and when you turn against one of them you are the enemy of all of them. Our office cannot afford an adversarial relationship with the police." So why report it at all? "Well next time they come in with a case I will not have to handle it." This of course reminded me of Pontius Pilot who "washed his hands" of his deeds. Sure that police officer is no longer your concern but...

People ask me all the time how I can represent those people who are guilty of crimes against others. I guess it is because more than anything I have come to realize that the worst crime I can think of is convicting someone who is innocent, especially because someone wanted to profit, advance their career or do something else other than solve a crime by arresting and reforming the wrongdoer for their action. When we stand quiet for such behavior we too become a part of it, we are complicit in its wrongdoing. I have always felt that a crime by someone against someone else is not as bad as a crime committed in all our names against any one or more of us.

The political realities of a prosecutor's office are such that I do not think they are the one's to bring this type of behavior to for punishment. Rather I think there should be a special prosecutor appointed by the courts to oversee police and government corruption and perjury. There should be laws that force compensation from the wrongdoer's pension to the person who has been wronged ( after all the people of the state should not have to pay twice, once for the wrongdoers salary and once again because he fails to do his job) and there should be a further requirement that any other compensation above and beyond that given from the pension fund be reduced from the budget of the police department and prosecutor's office that permitted the atmosphere of corruption to exist. That might curb testilying. May not cure it but if it stops just one innocent person from being set up by a cop or prosecutor, it will have been worth it. Maybe then we can believe that a trial is in fact the search for the truth and be closer to most of our definition of justice.
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