Our criminal justice system is totally screwed up. No, I didn't just realize that, it's what keeps me doing what I do, defending the constitutional rights of those who are drawn into the system through arrest, or investigation. It is getting worse though.
Last week brought us this story about a teenage suspect who secretly recorded his interrogation on an MP3 player. The detective has been charged with perjury because he, oops, didn't know the kid was recording this interrogation and went into court and testified under oath that that the suspect "wasn't questioned" about a shooting. A transcript of the, hmmmmm, different facts, showed that he tried for more than an hour to persuade the kid Erik Crespo to confess.
During the false testimony of the detective, prosecutors asked for a recess and advised the lying cop to get a lawyer to represent him in his 12-count perjury indictment.
The kid's lawyer comments "I couldn't believe my ears."
Really?
This is in no way an indictment of police officers, most who take their oaths seriously, but c'mon, our system is full of liars. This type of conduct occurs daily. Lawyers lie, cops lie, witnesses lie. All in the name of conviction or acquittal, not justice.
For whatever you think of him, Harvard Law Professor and Author Alan Dershowitz spoke about this to Congress 10 years ago.
He said, in part: "I believe that no felony is committed more frequently in this country than the genre of perjury and false statements.
"Police perjury in criminal cases - particularly in the context of searches and
other exclusionary rule issues - is so pervasive that the former police chief of San Jose and Kansas City has estimated that "hundreds of thousands of law-enforcement officers commit felony perjury every year testifying about drug arrests" alone.
"Clearly, the most heinous brand of lying is the giving of false testimony
that results in the imprisonment or even execution of an innocent
person. Less egregious, but still quite serious, is false testimony that
results in the conviction of a person who committed the criminal
conduct, but whose rights were violated in a manner that would
preclude conviction if the police were to testify truthfully."
By the way, prosecutors offered Crespo less than the 25 years he was facing upon conviction. His mp3 player got him a plea to 7 years.
Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com
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12 hours ago
Lucky for the kid he was not being prosecuted in Florida. In Florida, the tape recording would be inadmissible in any proceeding pursuant to Fla. Stat. 934.06; and illegal to boot as Jim Defede learned. We can only hope a prosecutor would exercise discretion and not prosecute the victim of a lying witness.
ReplyDeleteMany years ago, Mike Ritchie explained to me that the Legislature changed Florida from a one-party consent state to an all-party consent state following some Abscam-like Miami Herald investigations of legislators in the early 70s.
This has all led to some interesting exceptions to 934. One is the "if someone is coming to kill you, you can tape them doing it" exception. I forget the case name, but basically the only evidence the State had that the defendant killed the victim was an illegal audio recording made when the victim, fearing for his life, turned on a tape recorder. If the FSC had excluded the tape recording, the killer would have gone free.