September 2012 Warning Bells Article

We currently have five officers being criminally prosecuted over reports and court testimony

Information in this article about the five officers is taken from the media. No confidential sources were used.

We all want the bad guy to go to jail. We all want to see the criminal punished. That is why we make arrests, write reports and testify in court. But beware of the pitfalls in pursuing this goal. Your mistakes can be turned against you in unexpected ways.

The power of the pen can be deadly. It can kill the writer as well as the literary target when it explodes in your hand, usually with a delayed fuse. I constantly talk about the “right to be accurate.” It is more than a right, it is an obligation. Anything that stands in the way of maximum accuracy, such as Internal Affairs, Department rules and regulations, the need for speed, the need to conserve overtime or anything else, can cause you real danger. Not just the danger of losing the criminal case against the arrestee; not just the danger of suspension days; not just the danger of termination; but the danger of losing your freedom and going to jail.

It is interesting to note that in the rationale of a recent Board of Rights terminating two officers (now being appealed by the League) for false statements in reports and testimony, the Board noted the impressive package of both officers, which consists of 14 class D commendations between them and testimony and rating reports that mentioned “leadership, dedication, teamwork, and conscientious approach to police work” and “initiative, planning, productivity and attention to duty.” These are great packages, however, they were terminated anyway.

This brings up a salient point: Your work ethic will not protect you. The Department will happily accept your recap and the resulting reduction in crime, but when allegations are made against you, the Department will also go to great lengths to provide the Police Commission with its own recap: discipline against officers.

A common thread among the officers currently being prosecuted is that they are in high-arrest assignments. Three belonged to a gang unit and two were motor officers. High-arrest assignments, of course, result in many more arrest reports than the average officer and many more instances of court testimony. So these officers are walking in the mine fields of litigation far more than other officers. In part, it is the criminal justice system’s fault. It is cumbersome and slow acting.

The three gang officers were testifying about an arrest in hearings that occurred six and nine months and nearly a year later. Similarly, both motor officers testified in hearings where the arrest had been six months prior. Their mistake, if any, was in not thoroughly preparing for what they thought was a routine case among dozens of other arrests that they had been involved in. In all five of the officers’ cases, the criminal defense attorney was laying an ambush.

In the gang officer’s case, the defense attorney, after soliciting as much information as possible concerning the events surrounding the arrest, popped up with a video supposedly made at the time of the arrest. The officer’s attorneys are currently challenging the authenticity of the video, but nevertheless, the prosecutor dismissed the case without challenging the supposed video evidence. The eventual result was a criminal filing against the three gang officers.

In the motor officer’s case, there was a handoff arrest that was mistakenly not reflected in the report. Again, the defense attorney carefully laid an ambush. After the officers testified (six months later, one in court and one in a DMV hearing) consistent with the report, a tape of the radio traffic between the officers was presented that showed that this was a handoff and the officers had mistakenly testified as if they had made the probable cause observations personally. Again, the case against the defendant was dismissed and charges were filed against the officers.

All of the officers are being vigorously defended by their attorneys and the cases are defensible, but even if successful, the Department is still seeking termination of all of the officers. And there are other investigations concerning the same type of allegations in progress on other officers. The point of what I am trying to tell you is this: Strive for accuracy, even if the Department is pushing you for recap, arrests, criminal filings, savings of overtime or making your captain look good at Comstat. Any gratitude from the Department for you walking out on a limb for the benefit of the city is likely to be short-lived.

Another repeating danger point is the attempt to disguise the identity of an informant. Street cops know that the danger of the gangs suspecting that someone has provided information to the police is real, as in witnesses ending up murdered. After persuading a witness to provide information, officers feel a personal responsibility not to burn the cooperating witness. This may result in the officers being tempted to manipulate the arrest report in ways that tend to hide the source of the information being acted upon by the arresting officers. Everyone knows that the arrestee is going to get a copy of the report. The Department’s ridiculous rules and restrictions regarding the use of informants may be responsible for driving officers into self-help when trying to protect a source of information from discovery. In this way, a noble purpose can, and has, led to career disaster.

Lack of preparation also contributes to problems in testifying. Again, in the high recap assignments such as narcotics, gangs and vice, where from dozens to hundreds of arrests are made, the officers often run from one court appearance to another, and then are expected to make their watch for another round of new arrests. One arrest blends into another in the memory. Often, there is no preparation by the prosecutors who are putting on the cases. They too are on a treadmill running just to keep in place. The officer is called to the stand, sometimes without even talking to the prosecutor who may be reading the report for the first time as the officer is sworn in. On the other hand, the defense attorney has had months to prepare for this day in court with the specific object of attacking the officer’s credibility. Another recipe for disaster is in the making.

So what is the answer? Accuracy. Plain and simple. Even when it hurts. The government of the United States proscribes the rules of search and seizure; the state of California proscribes the powers of a police officer; the Police Commission and Department management proscribe the policies that you work under. If the rules of search and seizure, the limitations on your powers as a police officer, or the policies of the Police Commission and the Department make it impossible for you to take this particular criminal off the street, let him go. Do not be tempted to sacrifice yourself or your career to get around stupid rules or policies just to make the system work or to accomplish justice.

If the deck is unreasonably stacked against the crime victim, acknowledge this unfortunate fact, but do not risk your livelihood or freedom to fix the problem or to make the system function. You will be unsuccessful and you may be prosecuted for your attempt. When enough blood is shed, people will demand change. Until then, strictly follow the rules imposed upon you.

When you are on the stand testifying and the defense attorney asks you if you are testifying from a memory or only from the report on this defendant who you arrested six months ago in the same way that you have arrested a hundred since then, do not be tempted to try and help the prosecutor’s case by replying yes if you do not have a clear memory of the facts. If this damages the prosecutor’s case enough times, perhaps there will be an effort to speed up the court system.

Handoff arrests and designated finders in search warrants are nothing more than attempts to cut down on overtime. Write the reports fully disclosing the details of where the arrest came from or who called you over to take custody of evidence. If supervisors tell you that the reports should not be written that way, then protest, and let the supervisor write the report. If this happens enough times, maybe sufficient overtime will be granted someday to do the job correctly.

If you are refused the opportunity to listen to audio or video evidence, then only commit to facts you are positive of and that you are sure cannot be controverted. Refer everything else to the audio or video evidence. If this means the case will not be filed enough times, maybe you will be allowed to refresh your memory with the evidence.

If you have not been allowed sufficient time to review your reports before you are called to the stand, say so on the record. Maybe sufficient time will be granted.

The common thread running through this advice is that you need not try to overcome the faults in the system to make it work at the risk of the system potentially destroying you for your efforts. Accuracy is the safety vest. You should have the “right to be accurate.” — the right to access all materials that will help you refresh your recollection and make the most accurate statement possible. But this is not the reality. There are those who would rather have you out on a limb. They then have the option, if necessary or convenient, to saw it off.

Criminal defense attorneys want to portray you as not credible. Plaintiff’s attorneys want to convince juries that you are a liar. The Department wants to have a credibility test in their personnel investigations. None of these are in your best interest. Remember that inaccurate crime and arrest reports can be characterized and charged as crimes. Inaccurate testimony can be characterized and charged as perjury. Your best defense is accuracy, even if that means answering “I don’t remember” and losing the case.

Hear warning bells. It is better to lose the criminal case than to become the criminal case.

Be legally careful out there.


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