So cops lie. We all know that. It's something we don't like to talk about because it brings out the "so what, they're guilty anyway" crowd. Of course everyone will say "that's terrible," and "that's just wrong," but deep down inside those that wonder why we even have defense lawyers, there is the thought that it really doesn't matter. These are the same people who believe that a 1% error rate on the death penalty, is the "price we pay for having the death penalty." (Yes, someone actually said that.)
So in a Miami courtroom last week, it happened in one of my cases. No, this wasn't a high profile case where the public was screaming for a conviction. This was an old misdemeanor case that no one cared about, except my client, and the 4 prosecutors clamoring to object to all that was being asked. (Tip to a young prosecutor: When you've been practicing about 5 years, you'll realize that if it's that irrelevant, there's really no reason to object so much.)
This case involved two officers that pulled over my client. During a chance encounter with one of them, this officer told me they did not observe the same driving pattern observed by the other officer.
No, I didn't have a witness standing next to me. Just me and the officer.
I ran back to my office and on the same day, filed a motion laying out the details of the conversation.
It would be a few months before the motion was heard.
"Do you remember having a conversation with me?"
"Yes."
"It was out in the hallway."
"Yes."
"You said he wasn't weaving."
"I never said that."
Not, "I don't remember," or "I'm not sure exactly what I said," "I never said that."
"You never said that?"
"No."
This went on for a little while.
In the end, the testimony of both officers was enough for there to be reasonable suspicion for the stop. I don't disagree,
But this cop lied.
What struck me was the fact that not the judge, who knows me well, nor the four prosecutors, who haven't been practicing a year and don't know me at all, acted like anything was amiss.
No one thought to ask "is Mr. Tannebaum making all of this up?" "Is Mr. Tannebaum lying?" I kept looking around the courtroom, and noticing that everyone was carrying on as if there was nothing out of the ordinary.
I'm glad this happened. These are the things that reinvigorate my passion for the practice. It reminds me that for every prosecutor and police officer I respect and may even be friendly with, there is an undercurrent of shit in our system that affects defendants everyday. This is why defense lawyers must remain vigilant.
And that's the truth.
Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.
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Similarly crazy annoying is when a prosecutor agrees to something, like a plea deal, and then changes his mind. Or the case changes hands and the new prosecutor takes a different position, explaining he's an individual(!).
ReplyDeleteYou can't trust any of them as far as you can throw them.
This same situation happened to me (not with an entirely critical issue, but one that was important enough for the officer to lie about) a few months ago, but I decided not to bring it up during the trial. I thought this because the conversation was arguably part of a plea discussion (with the prosecutor standing beside the officer), and the judge might be sensitive to me making myself a witness.
ReplyDeleteBrian:
ReplyDeleteI take it that lying by the accused and/or the accused's witness or legal representative would be equally outrageous. But I also think that, unfortunately, also happens with far too much regularity (not by yourself, but certainly you've seen it happen. I know I have.). Perhaps that might explain the ambivalence of the other parties? Depressing to contemplate, but we may have reached a time where [too many] on all sides assume the "opponent" isn't being candid, and act accordingly?
Most cops tell the truth. However, I caught a cop lying not once but twice in depo a couple of weeks ago. He knew where the questioning was going via a MTS. Impeached him on one important fact with his own prior inconsistent statement.
ReplyDeleteIt reinvigorates me as well Brian. It burns me up. Fuels my passion.
Drafted the MTS and filed it today.
Great points. You are right Rich, there is a sense in the system that lying is everywhere and that makes it ok. There is nothing more admirable than telling the truth, when the truth hurts your position. I see this with cops - especially. A jury is more apt to believe a cop that admits weakness in a case, instead of trying to bolster bad facts.
ReplyDeleteAnd Grey - you are correct, most cops tell the truth. Unfortunately, when one doesn't, it demeans the system and hurts both sides.
So that's it? He denied it and you were done?
ReplyDeleteYou were a material witness who could have impeached the cop under oath. In California, at least, that would mean you needed to conflict off the case.
At least you raised the issue, unlike Brett who apparently just buried it because it would have been messy.
This is why an attorney should never ever talk to a potential witness other than their own client without someone else present, particularly an adverse witness.
I agree. That is why I record all my criminal interviews and OVI's and have people do written witness statements. It removes reliance a faulty memory and you can hear voice tone and inflection in a recording that further informs the trier of fact.
ReplyDeleteOddly enough, defense attorneys try like heck to have such things suppressed, :-) especially confessions where you can hear the Miranda warning being given on tape before the interview. :-)
I learned to do this from a lesson at the hands of a sharp defense attorney. I once lost a suppression hearing (a nice three hour grilling) just because I couldn't recall (at least not well enough to give sworn testimony on) portions of what happened that I neglected to write down at the time (the original report had been 7 months ago by then). The next day I bought a digital tape recorder and uniform microphone. Best thing I ever did.
I'm taking it that you're a cop, anonymous? Its much harder for members of the defense team to record interviews because often victims are skittish about talking to us in the first place and we don't want to further spook them by whipping a recorder out.
ReplyDeleteI am a big fan, though, of getting the investigator's report reviewed and signed by the witness after the fact.
I am a copper. Nothing much, just a local municipal guy in the midwest. I have come to appreciate this blog. Whether the blogger appreciates my presence here is another question entirely.... :)
ReplyDeleteI would have no problem talking with MY defense attorney in a recorded talk in all honesty PROVIDED it is covered by attorney client privilege. If a defense attorney wants to question me on a particular case where I have charged their client, I would be far more reticent and very carefully weigh what I say. I would be inclined to record such a conversation as well, to avoid "he said, she said".
My experience is that "he said/she said" is to be avoided if at all possible. Sure, I can write down that your client said, "I had 5 beers before driving home" on a traffic stop, but you can always correctly challenge that. At least I hope you would if you are his attorney. Maybe I lied (I don't but the defense can certainly argue it). Maybe I didn't recall his exact words but only their gist. At least that is what a good defense attorney should argue, whether it is true or not. I may not recall in enough detail to testify beyond what I wrote down at the time in the original report for a hearing or trial 10 months after the incident. But I CAN record the traffic stop and your client can speak for himself, preserved in evidence in his own voice. The defense can try to suppress that (and they might succeed if they have good enough mojo), but I can write down clearly verifiable exact quotes for my report and have far more reliable evidence about exactly who said what.
I actually got a compliment from a judge during her ruling on a suppression hearing. It was a recorded interview in which the suspect made incriminating statements. The defense filed a motion saying that I had coerced, threated and done darn near everything but break out pliars and a blowtorch to get his client to confess. The court listened to the entire interview (including the Miranda) and said that the interview was handled in as gentle a manner as was possible for the circumstances and ruled it admissible.
In that case defense counsel still worked out a wonderful plea bargain (30 days in county jail and probation for 9 felony burglaries), but that didn't bother me one bit. I just looked at all the court appearances, hearings, and motions (at how much $$$ per hour) and figured out that the legal bill (he had two very good private attorneys at every appearance) for this guy might have been worse than going to prison.
I guess I can video/tape both ways were I defense counsel. On the one hand, the last thing I want is a jury viewing crystal clear cruiser video of my wasted client falling all over the place on a field sobriety test. On the other hand, if the police are making it up, as Mr. Tannebaum says in the blog entry, a recording would be nice to have as proof.
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