Sunday, May 29, 2011


…I would taunt my prisoners in the holding cell in the Detectives Squad Room on the second-floor of all the Brooklyn Precincts I ever worked in. My goal was to break down the perp’s story till he gave up the truth. I confess that I was remarkably unsuccessful at extracting confessions by my methods, unlike my fellow detectives for whom the confession was the sine qua non of the ‘good detective’. As we all must know from having watched ‘Law & Order’ reruns without number, the police are allowed to lie to ‘persons of interest’ (TV, again), but I was not—and never could be—a Det. Bobby Gorn (Law & Order: Criminal Intent).

Not that I didn’t give it the ‘old college try’. When I joined the NYPD in 1967, I was already a college graduate, but not from City U’s John Jay College of Criminal Justice, which was so police-oriented that it was called by the rank-and file the ‘John Jay College of Criminal Knowledge’. At that time, lying was not a big topic of conversation among the troops in the field—unless, of course, you were caught in it. For example, if you were in pursuit of a drug seller or villain armed with a gun and he threw away those items as he ran—as they were wont to do—post-arrest when testifying on the witness stand, you swear, “While in pursuit and never losing sight of the subject, I saw him discard (gun or drugs) and recovered same from where I saw him drop it.” In the 1970s, this canned testimony became so frequent in the Courts that cases in which it was uttered became known as “dropsy cases”. Judges even began to express their disbelief on the record, but rarely found for the defendant and suppressed the evidence. But taking a hint from the judiciary, cops, always alert to the prevailing winds, changed up. The bad guys stopped discarding the evidence (even when they did), and so were found in possession of the gun which the officer had previously spied in his waist band and recovered from his person after a foot chase. Judge, DA, cops--everybody was happy with the new turn of events. To all the players, except probably the defendant, this was thought as a ‘white lie’, I imagine (having been instructed in Ethics by the Jesuits) that served a good purpose.

You might be asking yourself at this point: How can the police purposely lie under oath on the witness stand? Isn’t that Perjury, a Felony? Yes, of course, but the other players in the so-called Criminal Justice System—the Judge and the District Attorney—don’t object to the practice so long as there is no blowback, no scandal (meaning: Newspaper Headlines). Callous? Immoral? Nah! It’s just the efficient administration of ‘Justice’.

You need to understand that the principal product of the System is Numbers. For the Judge on the bench in the lower trial courts, the goal is to get through his calendar of cases every day: any lag will jam up the assembly line. On average, on any weekday, in the New York City Criminal Courts in each of the five boroughs, a judge will have to move 100 to 150 cases on his calendar during his eight-hour shift. If he fails, the cases pile up for the judge on the next shift. The Administrative Judges higher up write the report cards on their underlings. Advancement to County, Supreme, Appellate Courts depends on your standing among your peers. The prime directive: Don’t Make Waves! Move the Calendar!

The District Attorney, an elected official, the County’s top law-enforcer, is judged by the electorate on his performance, which the DA defines as the number of cases his Office prosecuted—especially, the number of Indictments he has gotten the Grand Jury to vote, and, even more especially, the number of convictions resulting from those Indictments. This is the DA’s Batting Average. And just as in baseball, if the DA’s average slumps, the voters may put him on waivers. Enter Plea-Bargaining: the grease that keeps the machine on track. When a defendant in an Indicted felony case insists on a jury trial--because he’s innocent or just pissed off by the DA’s Pre-Triial ‘Offer’ (that is, the number of years the offender must spend Upstate)--the period from his arrest through Indictment, Pre-Trial Hearings, and Trial to Verdict, averages one year. In the alternative, consider how many cases the DA can ‘dispose of’ (a term of art) by plea in a year? Dispositions devoutly to be wished for.

Consider the poor police at the bottom of the pyramid. 250,000-plus arrests in New York City last year. Cops are evaluated by their superiors based on their ‘productivity’; that is, the number of arrests made and summonses issued, the base line being ‘the quota’ expected from each patrol officer monthly. Or else. The basic police assumption: if you arrest enough law-breakers, the citizenry will be better off. In the past, the Department didn’t keep stats on the results of all those arrests—that is, how many resulted in convictions in court . The Conviction Rate was a litmus test for the quality of those numbers. See no evil, hear no evil, speak no evil.

So, to answer the underlying question: Why do cops lie on the witness stand in Court?

First, because they believe the perp is guilty and it’s up to them to get him off the street. The good cops I’ve known believe that, and the system within which they function encourages their belief. The statute making Perjury a crime is as little enforced as that which criminalizes Adultery. I can count the number of cops indicted for Perjury on one hand and have fingers left over. When it happens, it’s a hammer employed by a prosecutor to compel one cop to testify against another. For example, Patrolman Bill Phillips testifying about dirty cops like himself under a grant of immunity before the Knapp Commission Investigation into Corruption in the NYPD, in 1971; Office Charles Schwarz in the Federal prosecution of Officer Justin Volpe for the sodomy of Abner Louima in the bathroom of a Brooklyn Precinct in 1989.

Secondly, to comply wit the unspoken desires of prosecutors, who only want a sure thing, a case guaranteed to end in a conviction. What they DON’T want is the truth in detail of how the arrest came about, what the cop saw, did, heard, if it isn’t according to Hoyle, if it violated a Constitutional right of the defendant, no matter how plainly guilty he is. Cops know this from experience with the assistant DAs who prosecute the cases in the trial courts. They have seen the ambitious ADAs figuratively slap both hands over their ears rather than hear a detail that undermines the way it must legally happen. Next time, the cop will tailor his story so as not to offend those sensitive ears.

Thirdly, because they’re bad cops and lie to cover their sins, knowing that there’s no downside to lying within the System.

(Next time, Bad Cops…)

Robert Knightly

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