Judicial Incentives: Why Judges Won't Condemn Cops (Update)
At WaPo Conspiracy, Chicago lawprof Will Baude picked up on five lying Chicago cops (which five? this five. Not to be confused with any other five, or four, or six). He calls the story remarkable, not because cops lie, but because they got caught lying.
One by one, five police officers took the witness stand at the Skokie courthouse late last month for what would typically be a routine hearing on whether evidence in a drug case was properly obtained.
But in a "Perry Mason" moment rarely seen inside an actual courtroom, the inquiry took a surprising turn when the suspect's lawyer played a police video that contradicted the sworn testimony of the five officers — three from Chicago and two from Glenview, a furious judge found.
Okay, okay, settle down. Lest you feel all validated, bear in mind that the lie was proven by video. Yet again, we're stuck in "but for video" mode. Much like "but for DNA" mode on innocence cases, we can rejoice at the occasional proof of an innocent person released from his wrongful imprisonment, but the 10,000 for whom no DNA exists still sit there. Because they don't only lie in video cases or withhold Brady in DNA cases. And let's not get started on how concealed Brady magically materializes after the fact.
But Baude notes a peculiar line in the story that raises a question:
Cook County Circuit Judge Catherine Haberkorn suppressed the search and arrest, leading prosecutors to quickly dismiss the felony charges. All five officers were later stripped of their police powers and put on desk duty pending internal investigations.
He then considers how this plays into judicial incentives:
But the reassignment to desk duty does make me wonder about perverse consequences. My understanding is that once a police officer is found to have lied on the stand, it is difficult for that police officer ever to testify again, because the finding of dishonesty can be used to impeach them. This means that a finding of dishonesty can carry major professional consequences for an officer.
Let us suppose this is true. Is it possible that this actually dissuades judges from finding that police officers have lied?
Obviously, the answer to "is it possible" is "sure," but it's a poorly framed question. But even if the question had been more thoughtfully framed, it would nonetheless suffer from the assumption that judges are some different type of being, caricatures of one mind, stereotypes, fungible robed functionaries who think as one. That's how they look to outsiders. That's how they look to young lawyers, who haven't had the opportunity to know the individuals on the bench before they got there.
But once they assume the job, there are certain aspects that tend to weigh more heavily on a judge than we care to admit.
There was a judge in New York County named Harold Rothwax, who has now been dead for a while, and bore the delightful nickname, the "Prince of Darkness." He was a Legal Aid lawyer before becoming a judge, but once he got his robe, he turned mean and cynical. He was very smart, but the job cost him his humanity.
My partner in the 80's, Howie, was a friend of Harold's from their shared Legal Aid days. Howie would occasionally (and by occasionally, I mean twice a day, minimum) drink, and sometimes with his old friends who were now judges. I sometimes sat there, nursing a beer as I wasn't much of a drinker, listening to two old friends talk.
Harold wrote a book, entitled "Guilty." It was a horrible book, but insightful to anyone who seeks to understand how a brilliant mind becomes twisted, contorted, bent beyond recognition, when a person assumes the authority to destroy lives.
After a cocktail or two, Harold talked about how his experience as a judge changed him. Case after case, defendant after defendant, victim after victim, made it all a blur. Sure, cops lied. Everybody knew cops lied. Everybody knew cops lied in every case. That was the game. It was their job to put the bad guy away, and the way to win the game was to speak the magic words that the system accepted as necessary.
But we didn't get it, we being defense lawyers. We didn't see the pain of the victims. We didn't see the numbers, the hundred, two hundred defendants a day shuffling in and out of a courtroom, sad, pathetic, worthless. We only saw an individual, one person who was real to us. To a judge, they have no face. And most of the time, they have no future. Just bodies on an assembly line.
What was he supposed to do, Harold asked? They may not all be guilty, but they all were guilty. No one could pluck out the one in a hundred who didn't deserve to be there, and he wasn't going to cut everyone free because he couldn't tell who was who.
He gave up. Blackstone's ratio was for children. He had a job to do, to keep the cattle moving toward the slaughter. Harold could be a rather charming guy, personally. As a judge, he was utterly despicable.
So could the fact that a finding by a judge that a police officer committed perjury ruin a cop's career influence his decision? Of course it could, but Baude thinks too hard about it. If it's a game, and the rules allow police to lie in order to do the job we ask of them, provided they don't get flagrantly caught, then the judge doesn't penalize a player in the game for playing it too well or too poorly.
There is a spirit in the well of the courtroom that we may all be on different sides, but we don't do anything to embarrass the other players, or make it nasty or personal. This is what they mean when lawyers are admonished to be "civil." We don't call cops liars. We don't tell the judge he's an ignorant fruitcake. We don't point at the prosecutor for concealing Brady.
The only player in the game unworthy of "civil" is the defendant, because the object of the game is to put him in prison. And that's why judges don't find cops to be liars. It's the same reason judges grow disgusted with criminal defense lawyers who won't let the wheels of justice grind smoothly. We mess up the game.
Update: At Hercules and the Umpire, Judge Kopf opens the floor on this post, saying:
Because I have always believed that I could handle the truth, Greenfield's post makes yours truly very, very itchy. Maybe Col. Jessep was right, at least about me.
In the comments, he asks, "Why do I believe cops nearly 100% of the time?" That he asks demonstrates an enormous amount of self-reflection. The problem is that the self-reflection isn't complete until he gives himself a frank answer. Whether he (or anyone) can do that remains to be seen.
But most significantly, an Alabama state court judge, Rusty Johnson, offers his experience in a series of comments. He offers a self-assessment:
While I might be viewed as a "hanging judge" I am actually very protective of defendant's constitutional rights.
Self-assessments tend to be notoriously unreliable. To add my Friedrich Nietzsche quote to the mix:
All things are subject to interpretation whichever interpretation prevails at a given time is a function of power and not truth.
A particularly bad problem for a self-assessing judge.
This entry was posted in Uncategorized on April 17, 2014 by SHG.
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35 thoughts on "Judicial Incentives: Why Judges Won't Condemn Cops (Update)"
william doriss April 17, 2014 at 8:31 am
There are lies and damn lies, and the testi-liars who tell them.
Been there, seen that,… with my own two eyes.
Enjoyed (?) this posting. Otherwise, depressing.
Brett Middleton April 17, 2014 at 10:46 am
The object of any game is to win. However, proper play means winning according to the rules, not winning at any cost. Harold seems to have forgotten that part and thrown out the rule book. It's a lot simpler to win a game of "Mother May I" if you decide to play it as "Tackle that Mother!", but I think that's going to cost you the respect of the other players.
SHG Post author April 17, 2014 at 11:00 am
I think you've taken the wrong message. He didn't throw out the rulebook. He was saying that the "real" rules of the game are very different than we think they are.
"Their job was to put the bad guy away …." At what point does the 'bad guy' go from being the one the system wants to put away – to those inside the system that perpetuate lying and cheating as legitimate ways to win? The ones winking and nodding about the 'real' rules of the game.
SHG Post author April 17, 2014 at 5:27 pm
That's not the game.
pvine April 17, 2014 at 12:06 pm
"[T]he object of the game is put [the defendant] in prison."
Do you really believe that this is true at the trial, intermediate appellate and Supreme Court level? Or do you believe the alleged "game" is only played in the trenches NYC's criminal courts?
SHG Post author April 17, 2014 at 12:13 pm
This is about trial level, so let's put aside your raising appellate. What I believe is that for most judges, in the absence of some outlier showing that somehow catches their attention and interest and convinces them that this is that one in a hundred truly innocent person, this is the game. It's a game of odds, and the odds are that conviction is the right outcome. When the numbers wear too heavily on them, they close their eyes, think pleasant thoughts, and let the game play out.
"This is about the trial level … for most judges … "
In all states? In federal and state court? In felony and misdemeanor cases? For judges of all backgrounds?
Pretty broad generalization, SHG. I thought you prefer comments/opinions based upon case specific facts, not overly broad generalizations? Seems as though you are playing a different form of the "throw them all into one pot" game.
A very broad generalization, indeed. But then, you asked what I believe, and even then, I qualified it with "most," because that's what I believe. Don't blame me for the question you asked.
Or to put this in a different context, I don't ask others to explain "judges" to me, but offer my qualified, anecdotal, yet somewhat experienced, opinion.
Jim Majkowski April 17, 2014 at 12:16 pm
When I saw the Skokie judge described as "furious," I was curious to learn with whom: the lying officers or the person who exposed them?
That was exactly what I wondered.
Mark Draughn April 17, 2014 at 1:16 pm
You have libeled my fair city! Only three of the five lying cops were from Chicago. The other two were from the outer wasteland known as Glenview. Conduct yourself accordingly!
So you're miffed that they weren't all yours? Maybe next time.
Thomas R. Griffith April 17, 2014 at 2:17 pm
Sir, despite the first sentence, it looks like Mr. M.D's. concerns were covered in the third paragraph. Read on and be amazed. Thanks.
He knows. There are just some weird self-esteem things happening when you come from the Second City.
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Terence Roberts April 17, 2014 at 2:07 pm
I have 35 years experience in family Law in California. The game is the same. In Criminal law it is "put the bad guy in jail"; in family law it is "the best interests of the child." Different names, but same actions (lying parents), results (judges ignoring the lying -for much the same reason as Judge Rothwell) and consequences (kids condemned to a childhood (and maybe for life) of conflict between parents who used to love each other and now hate each other.
It's funny how a few decades of banging one's head against the wall produces some degree of clarity. That, plus knowing the judge when he was a kid puking his guts out after the Christmas party where he got smacked after trying to grope someone, and pondering why he thinks he became taller, funnier and smarter when he put on a robe.
Wheeze The People™ April 17, 2014 at 2:32 pm
Ah, yes. That moment in life where you see clearly, but for the human condition, Utopia . . . and realizing the sick joke, you still laugh, while maybe also crying . . .
Robert L. Abell April 17, 2014 at 2:36 pm
In the late 80's and early 90's, I was a Legal Aid lawyer in New York. I remember and Scott Greenfield may as well a judge last name Douglass who sat in Brooklyn (Kings County) back in the early 90′s. Douglass one day wrote an opinion (published in the New York Law Journal) denying a motion to suppress and lamenting what he described as a system that required him to believe or conclude things like a disturbingly high number of defendants, who could reasonably be expected to know better, leave their bags of marijuana in plain view on the floorboard or seat next to them, notwithstanding ample opportunity to take the saving measure of shoving it out of view under the seat. I once had an experienced (shall we say) client who was so offended at the police officer's claim that he'd left his baggie of marijuana in plain view on the floorboard that he insisted upon a suppression hearing, even though it meant a good plea offer got pulled off the table. We lost, of course, but, interestingly, the judge pressured the prosecutor to put the plea deal back on the table, which was then accepted.
My view as a defense lawyer is that the police officer's testimony at a suppression hearing will always, always be credited, unless there is something like videotape proving otherwise. Clients, for the most part, understand this, although I can't say they accept it. As for the rationale for this reality, Mr. Greenfield may be correct. On the other hand, wrestling with the "why?" question is usually discomforting and unsatisfying.
And the observations about Justice Rothwax are fair, although lamentable.
Your point about "wrestling with the 'why'" is important. Early on, we're all full of righteous indignation at the absurdity of the deal. Later, we get past it and move into just trying to find some way to win. If not win, at least do the best possible for the defendant. We don't have the luxury of pondering futile points when we have clients to defend.
Now if a judge wants to ponder why they always seem to find a cop credible, well…that might not be as futile.
And I remember Justice Douglass' decision.
lorin duckman April 17, 2014 at 5:12 pm
So, when Harold went after those in front of him, he was said to be "one who didn't suffer fools lightly." Me, they called me biased. I never did anything approaching his level of injustice or strike fear into lawyers and defendants and families of the accuseds like he did.
It's the Judges who didn't stand up to injustice who filled the jails with the people the social justice system failed. Some didn't know the difference; some did.
You refused to play the game, and the system spit you out.
Charlesmorrison April 17, 2014 at 5:28 pm
What's notable about the story, from my perspective, is not that cops lied during a suppression hearing, but that they were caught offguard by the video. Chicago is a big city, but the institutional breakdown on the part of the police department is illuminating. Neither the prosecutor nor the officers knew this video had been subpoenaed by the defense. I have a suspicion a new policy will be imemented regarding the handling of defense subpoenas.
John Barleycorn April 17, 2014 at 5:53 pm
Milton Bradley and Company had a choice. They could have incorporated another dimension within the rules of Twister.
Instead we are left with Twister and its easily cleaned polyvinyl chloride mat.
The mat may be reinforced with "natural" threads but the stench of it and the misplaced Greco-Roman sweat is unmistakable.
Salty doesn't even come close to describing it.
Richard G. Kopf April 17, 2014 at 5:59 pm
SHG,
You are right. It's a cop-out to simply ask the question. I knew you would call me on it. I will give an answer but I need time to cobble it together. I hope that doesn't mean dissemble. I guess we shall see.
I wouldn't call it a cop-out, Judge, but just the start of the journey.
James Pennington April 18, 2014 at 1:29 am
I am a criminal defence lawyer in a small town (35,000) in British Columbia, Canada, and have noticed the same thing time and time again. We don't have suppression hearings in Canada but our Charter of Rights and Freedoms does allow for applications to exclude evidence based on violations of an accused's Charter rights. Sometimes I am left with the impression I practice in a "Charter-free zone".
Good post and I enjoy your blog.
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DavidH April 18, 2014 at 12:33 pm
I wonder what you think of the Michael Connelly series of books about Mickey Haller (beginning with the Lincoln Lawyer). Obviously, it's a sensationalized, fictional setting, but having read a few of them, it seems to me that one of the key messages / themes of the books is that the criminal justice system at the trial level is a game, and a cynical/corrupt one at that.
My preference is to deal with reality rather than fiction.
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