Author Archives: Gideon

Seattle PD’s arrest of black man is every problem with the justice system in a nutshell

If there were a video and accompanying story that could be used as a textbook example of every problem with our criminal justice system, this is it. First, watch the cruiser cam video (you only need watch from 1:40 to 7:40):

What the video shows is Wingate standing motionless at the crosswalk and Officer Whitlatch pulling over and immediately asking him to drop his weapon and then claiming that he swung it at her.

She then cautions him that the entire encounter is being recorded. Wingate stands there dumbfounded, like someone who never had any negative interactions with anybody:

Wingate is a 70-year-old Air Force veteran and retired King County Metro bus driver had a daily habit of walking and using a golf club like a cane, according to his attorney, Susan Mindenbergs.

But Whtilatch’s version is quite different. This is from the police report:

In the police report filed by Officer Coles about the incident, Whitlatch said “she observed him look at her and aggressively swing his golf club in the direction of her patrol car.” “Because Wingate was still in possession of the golf club,” Coles wrote in the report, “and she was fearful of being assaulted by him, she said that she kept her distance from him upon exiting her patrol car.”

There are four disconcerting things about this:

  1. It seems that Whitlatch is a long-time racist:

Facebook user Cynthia Whitlatch accuses Davis of being a “black racist” and writes, “If you believe that blacks are NOT accusing white America for their problems then you are missing the point of the riots in Ferguson and the chronic black racism that far exceeds any white racism in this country. I am tired of black peoples paranoia that white people are out to get them. I am tired of hearing a black racist tell me the only reason they are being contacted is because they are black solely because I am NOT black.”

in a police department that has had several concerns about systemic racism:

Officer Whitlatch is one of 123 police officers who sued the government last year, at both the federal and city level, to block the Department of Justice–ordered use of force policies. The SPD is under a federal consent decree and is being forced to address the DOJ’s concerns over racial bias and its finding that Seattle police routinely use excessive force.

And obviously a liar, as evidenced by the disconnect between her version and reality.

  1. The police don’t seem to think that it has anything to do with race:

“They know that had this been a white man,” said [former Democratic Washington State representative Dawn Mason], “we wouldn’t be here.” But, in fact, it appears they don’t know that. The Seattle Police Department insists racial bias played no role in the incident.

“If this person had been white,” said SPD spokesman Sean Whitcomb, speaking by phone on Tuesday, “I would imagine it would have been the same outcome. We don’t believe this was a biased policing incident. We don’t believe the officer acted out of malice or targeted this man because of his race.”

At the East Precinct, Mason said, they watched the video with Assistant Chief Nick Metz and East Precinct captain Pierre Davis.

But the police commanders, including Metz and Davis, didn’t see it that way. Mason said they “tried to convince me nothing was wrong.” Metz, in particular, “kept trying to convince us nothing was wrong here. He defended the officer.”

  1. That Whitlatch’s “punishment” was a talking to:

Whitlatch has not been disciplined. “This did not go through the OPA process,” said SPD’s Whitcomb. “Basically, she was talked to by her supervisor.”

She has however, been removed from duty that involves interacting with others:

Seattle police chief Kathleen O’Toole said in a statement this afternoon that she feels “shocked and disappointed” at the way SPD officer Cynthia Whitlatch behaved on Facebook—tacitly confirming that a post-Ferguson Facebook screed about “chronic black racism” and “black people saying poor poor me” was, in fact, written by the same Officer Cynthia Whitlatch who arrested an elderly military vet last summer for “walking in Seattle while black.”  Officer Whitlatch, O’Toole said, is now on administrative assignment, “where she will have no interaction with the public” while a “comprehensive review” of her behavior in this and other cases is completed (along with an independent investigation by the Office of Professional Accountability).

  1. The system condones this behavior. Notice how, in the video, Whitlatch can be heard telling Wingate that it’s all recorded on audio and video. She’s not lying; it is. But she also has to know that the video tells a completely different version than hers. So why is she making that bold claim about the video? Because she knows that no one’s ever going to bother to see it. She knows that it’s a minor charge and the nuisance factor of it is enough to get someone to accept some sort of slap-on-the-wrist rather than spend months contesting what is essentially a minor infraction. She knows that she can get away with it because she’s a cop and what’s in the report will almost always be exclusively relied upon.

And she almost did get away with it:

The next day, prosecutors at the city attorney’s office decided to file a misdemeanor charge of unlawful use of a weapon against him, “based on the SPD incident report,” according to spokesperson Kimberly Mills.

“On that day,” she writes, “Mr. Wingate, who was represented by an attorney, agreed to enter into an agreement under which the case would be dismissed after two years if he complied with all conditions ordered by the Seattle Municipal Court judge.”

What the city attorney’s account of events leaves out, according to Mindenbergs, Wingate’s current attorney, is that the elderly man was told, “If you sign this stipulated order of continuance, it will all be over, basically.” She said her client followed a public defender’s instructions.

As a public defender, I think it’s entirely ineffective and completely defensible. Wingate must’ve been one of hundreds of clients that day. An elderly man accused of threatening a cop with a golf club; a man with no record who probably was just having a bad day. “Your word against the cop’s, Mr. Wingate. And they’re only offering you a deferred adjudication. Who knows if the dashcam even exists?”

And so Wingate pleads guilty. I call it guilt by convenience and that’s what happens when the nuisance value is high enough that people will pled to infractions and small offenses rather than spend the days, weeks, months litigating and fighting minor cases. Most people, believe it or not, don’t like to come to court. Wingate got lucky:

Weeks later, city prosecutors, after conferring with [Deputy Police Chief Carmen Best, who, like Wingate, is black] recommended dismissing both the case against him and the two-year stipulation.

But just imagine how many others there were on that same day, who were harassed, wrongfully accused, arrested and convicted just because an officer like Watlatch decided to flex her muscles.

Well, at least Wingate got his club back and an apology to boot.

H/T: PD Gumshoe

What’s in a word? Making ‘reasonable doubt’ understandable (updated)

[Update: See two proposed charges below, both of which are almost identical in content, but completely different in style.]
reasonable-doubt-motivational-poster

“Truth is a matter of semantics, whether we like it or not,” writes Michael Robotham in his novel ‘Suspect’. What he has done in that sentence, perhaps unknowingly, is describe in a nutshell the entire modern American criminal justice system. When it comes to jury trials, the guilt or innocence of a defendant rests in many cases upon the definition of the various elements that make up a crime, and most importantly on the definition of the standard of proof: beyond a reasonable doubt. For it is that standard governments across the country must clear in order to deprive another citizen of life and liberty.

As the Supreme Court said in In Re Winship, the reasonable doubt standard “provides concrete substance for the presumption of innocence — that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” In other words, you can only have the presumption of innocence hold value if the State is permitted to overcome it by meeting the most exacting standard possible.

The phrase “reasonable doubt”, however ingrained it is in our lexicon, is difficult to pin down and define. By its very nature it is vague – what is reasonable, for instance and reasonable to whom and in what context; what is a doubt, etc – and thus in of itself provides very little reliable guidance to judges and juries whose job it is to interpret and apply it.

Thus, there are probably more discussions devoted to the definition of reasonable doubt than any other phrase in the criminal law. Unfortunately, after more than a decade grappling with this phrase, I am no more certain of its meaning today than I was when I started practicing criminal law.

Courts have developed several definitions that they claim pass Constitutional muster, but I’m afraid that the problem is more akin to that experienced by Justice Steward in Jacobellis v. Ohio; that reasonable doubt is something you know when you see. This, of course, is utterly useless because it provides no guidance.

So what do our courts provide for? There seem to be three primary schools: those that use Massachusetts’ venerable Webster description with its phrases of “moral certainty” and “abiding conviction” [PDF]. There is the other school, notably headlined by Justice Ginsburg in Victor v. Nebraska and the Federal Judicial Center’s pattern instruction, which favors the use of the phrase “firmly convinced”. Finally there is the school that follows neither, most notably Connecticut’s own model instructions. All three schools are ripe for criticism.

While the “moral certainty” in the Webster definition is centuries old and is loosely translated to “I am as certain as I can be, based on what I have seen and heard”, the masking of that more every day definition behind the charged “moral” is a tremendous disadvantage to the accused. For requiring a conviction only upon a moral certainty seeks to bring morality – and thus subjective opinions of what is right and wrong – into the equation. An equation that most accuseds in this day and age are sure to lose. It also does nothing to clearly define the phrase ‘reasonable doubt’.

Connecticut’s instruction, which can be found on the Judicial Branch website, focuses almost entirely on what a doubt is – it is a serious doubt that you would heed, an honest doubt, a real doubt – and does little to define the certainty level required. The first sentence of the instruction – “[t]he meaning of reasonable doubt can be arrived at by emphasizing the word reasonable” – is itself a head scratcher, liable to sidetrack even the most sophisticated listener.

Finally, Justice Ginsburg’s favored requirement of being “firmly convinced” comes closest to In re Winship’s mandate that no person should be adjudged guilty with a fact finder being convinced of guilt “with the utmost certainty”. Our supreme court, in State v. Jeffrey Jackson, implicitly approved this formulation but did not require it of our trial judges and it is not routinely given in our courts.

In order to formulate a clear, succinct and accurate definition of “reasonable doubt”, I think it would help to first understand what exactly we wish to convey to jurors. To me, the essential points seem to be the following:

  1. That every person is presumed innocent when arrested;
  2. That they can be found guilty and have their liberty deprived only if the evidence presented by the prosecution creates a high degree of certainty that the correct person has been arrested for the correct crime;
  3. That the high degree is not mathematical absolute certainty;
  4. That the high degree is greater than a possibility or a probability that the accused is guilty;
  5. That any realistic doubt must lead to an acquittal;
  6. That this decision must be made based on the evidence presented in court or evidence that could have or should have been presented but was not.

If that is what we want to convey, then why do we not simply say that? Why must we muck about with terms like “moral certainty” and “abiding conviction” and “a serious doubt that reasonable men would heed”. Why are so averse to speaking in plain English?

With all of the above in mind, I propose the following, which is a variation of the “firmly convinced” formulation:

The State has the burden of proving the defendant’s guilt beyond a reasonable doubt1. Beyond a reasonable doubt is how convincing the evidence has to be to you in order to find an accused guilty of a crime. So what does “beyond a reasonable doubt” mean?

What it means is this: You must be fully and firmly convinced2 of the defendant’s guilt before you may return a verdict of guilty. Your state of mind must be such that you can confidently say that you are certain of the defendant’s guilt. Although the State does not have to prove the defendant’s guilt to an absolute or mathematical certainty, the State must prove his guilt to a state of near certitude3 in your own minds. In other words, while the law does not require the State to prove a defendant guilty beyond all possible doubt, it is not sufficient to prove that the defendant is possibly or probably guilty4.

After considering all of the evidence, you may be fully and firmly convinced that the defendant is guilty of the crime charged. On the other hand, based on the evidence or lack of evidence, you may think there is a realistic possibility that he is not guilty. This realistic possibility must be based on the evidence or lack of evidence and not arising from mere possibility, bare imagination, or fanciful conjecture5.

Thus, if you are fully and firmly convinced of the defendant’s guilt, you must return a verdict of guilty. If you find that there is a realistic possibility that he is not guilty, the law demands that you return a verdict of not guilty.

I am certain that my formulation will have its critics. I invite them to send me their concerns and suggestions, so that we may open a dialogue that seeks to fix the incomprehensible legalese we throw at jurors today and ask them to make the most solemn decision they might ever have to in their lives.

Update: Based on conversations in the comments below and taking into account feedback I’ve received via email, I’ve formulated this second alternative instruction:

Remember that every person is presumed not guilty when arrested. This presumption and status of being not guilty can only be overturned if the evidence presented creates a high degree of certainty by firmly convincing you that the correct person has been arrested [has committed?] for the correct crime. The high degree of certainty is not mathematical absolute certainty but it is also not a possibility, or a probability, or a likelihood that the accused is guilty. What prevents a juror from being firmly convinced to a high degree of certainty is what we call a reasonable doubt. If you have a realistic doubt, you cannot overturn the presumption that the accused is not guilty and you must vote accordingly. A realistic doubt can form based on the evidence presented in court or evidence that could have or should have been presented by the prosecution but was not.

Thus, only if you are firmly convinced to a high degree of certainty that the accused did, in fact, commit the charged crimes, can you overturn the status of being not guilty. If you do not reach that level of certainty, you must keep that status of not guilty in place and render a verdict accordingly.

Thoughts you have are, as always, welcome.


Cops’ thuggery continues unabated; now they’ve moved on to arresting lawyers

This is the hubris that is leading to the downfall of America’s police forces and the public’s erosion of trust in them.

A plainclothes detective in San Francisco had the temerity to arrest a public defender who represented the individual he was seeking to question and photograph. When she fulfilled her Constitutional Duty to tell him to go fuck off (in entirely more polite terms than I would have; I’d have laughed in his face), he threatened her with arrest for, get this, resisting arrest.

After his cronies escorted her from the scene, he continued to question the represented individual about his criminal activity.

During the time Tillotson was not present, Stanbury photographed and questioned her client and another man who did not have an attorney present, acccording to Adachi.

Do you think you’d feel free to refuse the officer’s questions at that point? Go ahead, make his day.

It’s one things for officers to get their way by removing civilians from the scene who object to their searches and seizures, but it takes quite another level of totalitarianism and disregard for the law to arrest and make absent an officer of the court.

But police said the five officers, led by a plainclothes sergeant who was accused of racially profiling a fellow officer in a 2013 traffic stop, were merely investigating a burglary case in which her client and his co-defendant were persons of interest.

Tillotson was cited for misdemeanor resisting or delaying arrest because she obstructed a police investigation, police officials said.

As I wrote just yesterday, there seems to be a growing idea among police officers that people must comply with their orders, regardless of the legality of their actions and anyone who gets in the way, questions or refuses those orders is automatically guilty of resisting or hindering.

Now imagine what these cops would have done if they weren’t in a courthouse, on camera. How many convictions have been obtained on the basis of their representations of confessions by bullied and threatened citizens on the streets.

It might be time for some civil disobedience.

Reminder to cops and prosecutors: it’s not my job to help you

I swear, sometimes, I think everybody needs to go back to grade school for remedial lessons in English and Civics.

I’ve said it again and again, our system of laws is an adversarial system, as opposed to a “truth-seeking” or inquisitorial system. This means there are two sides in opposition: those that try to put people in jail and those who try to ensure that only those who are guilty beyond a reasonable doubt are put in jail. The system can build trust and work relatively properly only when the two sides fulfill their stated roles and don’t exercise improper influence over the other1.

So that means, for instance, that a public defender shouldn’t be arrested and charged with hindering prosecution because his client failed to return to court at the start of a trial.

An Allegheny County public defender was arrested Monday on charges that he gave inaccurate information to a judge’s staff about whether his client had appeared for trial in a sex assault case.  [He] was arraigned Monday night on charges of hindering apprehension and obstructing the administration of law. Court records show Mr. Capone, who could not immediately be reached, was released on nonmonetary bond.

He was arrested for giving “inaccurate information”? What in Blackbeard’s black beard is that?

Mr. Capone represented Jeffrey Derosky, 44, of Imperial, who was charged by Allegheny County police with sexually assaulting a child and other crimes. Mr. Derosky was scheduled to go to trial Jan. 12. Four days later, he was found dead of a self-inflicted gunshot wound in West Virginia.

Sorry, I forgot it mention it gets pretty serious. But here’s the crux of it:

A detective with the county sheriff’s office wrote in a criminal complaint that Mr. Capone told a staff member for Judge Donna Jo McDaniel that Mr. Derosky “had not appeared at court.” The judge’s tipstaff told investigators Mr. Capone asked several times that day whether his client had checked in and stated that “the last time he saw his client was when they met on the Friday before the trial,” the detective wrote.

Unfortunately, it turns out that he had seen Derosky on the morning of the trial and had conveyed an offer of 5 to 10 years to serve. Derosky and his girlfriend had left, both intending to not return. It doesn’t seem that Capone was aware of their intentions to flee.

But it’s still not clear what exactly happened:

The detective contacted the judge’s staff again and asked them to clarify whether Mr. Derosky had come to the courthouse for trial. Confronted with the information from Ms. Blystone, Mr. Capone said he “was unsure how to answer that question and believe that it would violate attorney/client privilege,” the detective wrote.

He said Mr. Capone told the judge’s staff that Mr. Derosky and Ms. Blystone had come to court for the trial, he informed them of the plea deal and Mr. Derosky then cursed and said, “I’m out of here.” Mr. Capone told the staff he went to another courtroom and when he returned about 10 minutes later, Mr. Derosky was gone, according to the complaint.

So it seems that Capone rightly told the cop to fuck off and then did tell the staff that the defendant had come to court.

He was charged with hindering apprehension or prosecution. In Pennsylvania, that crime is defined as:

§ 5105.  Hindering apprehension or prosecution.

(a)  Offense defined.–A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime or violation of the terms of probation, parole, intermediate punishment or Accelerated Rehabilitative Disposition, he:

(1)  harbors or conceals the other;

(2)  provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape;

(3)  conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;

(4)  warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; or

(5)  provides false information to a law enforcement officer.

I’ve put a strikethrough through those parts that aren’t implicated leaving only those that possibly might be. Those remaining parts, however, are a stretch. First, can it be said that he provided or aided a means of avoiding apprehension or escape? He just told the client the offer, the client said that he’d be back and then he pretended to not have seen the client that day.

Let me tell you. This happens all the time. Clients are late. They show up and then they disappear and you have no idea where they are. Some of them run off when you tell them you’re going to jail. It happens every single day every where in America, multiple times.

My job as a lawyer is to make sure my client doesn’t screwed and even doubly so when he’s doing the screwing to himself. So if I can avoid eye-contact with the judge or go disappear in my office for a few hours and pretend to have forgotten that they’re waiting for my client, you can damn well be sure I’ll do that, because clients that run and stay gone are rare. Most often they’re outside smoking a cigarette, calling their relatives arranging for bail or off for one last decent meal. If making myself sparse for an hour or so while they get their shit together avoids the hassle of a re-arrest warrant and then the subsequent vacating of that warrant, then I’m all for it. Call it judicial efficiency.

(4) is pretty damn stupid to be applied in this context. We warn our clients of their apprehension every day. “Hey, Jimmy Jones, you’re going to jail today.”

Finally, “tipstaff”, whatever that is, don’t qualify as Law Enforcement.

What was the problem here? Clearly, he shouldn’t have pretended to not have seen the defendant when he, in fact, did. But how much different is that than him saying “I don’t know where he is”? What if he had said “I can’t divulge any information without violating attorney-client privilege”? Would that be hindering apprehension? Or are those with guns and gavels simply mad that he dared “lie” to them?

This scenario has been discussed many times in my office and no doubt in other public defender offices across the country. I can tell you that there is a difference of opinion and sharp one at that. There are those who believe that it is not within their job description to do one thing to help cops or prosecutors in arresting and prosecuting their clients. There are others who believe that to omit information such as is the case here is to play with one’s word and trust and potentially expose one to professional sanctions.

Not a single person believes that it rises to – nor should it – a criminal act. That’s nothing more than flexing of the thug muscles by law enforcement and should be denounced from every quarter.

Frankly, I’m more concerned about a system that makes an offer of 5-10 years of jail on the day of trial and then causes a man to take his own life rather than be arrested and incarcerated. Isn’t that the real problem here, worthy of scrutiny?

To make it incumbent upon criminal defense lawyers – at the risk of arrest, incarceration and loss of license no less – to divulge the whereabouts of every client and assist in their apprehension is to make attorneys complicit in the machinery of the prosecution and to fundamentally erode the bedrock foundational principles we pretend to be so proud of.

On Serial: a spectator sport for the elite

To say that our system of laws that regulates conduct between members of society is a complex entity is an understatement. While the principles underlying the passage of laws that prohibit criminal behavior and the description of behavior as criminal itself are fairly straightforward, there is almost nothing else beyond that which can be so classified.

The reasons why people come into contact with the criminal justice system, their treatment in that system, the results obtained by the functioning of that system and the output and long-term impact of having been through the system are complicated and intertwined. Economics and education play just as much of a role in what leads people to a life of crime as any inherent proclivities they might have for lawless behavior.

While most people would acknowledge the endemic problems of our system on the macro level, somehow these nuances and complexities are often forgotten when it comes to an examination of an individual case.

It seems that the easiest thing to do is to when dealing with an individual is to ignore or gloss over the fact that the defendant is, in fact, an individual. Perhaps there is something in the human mind’s coping mechanism that forces us to do this, in order to avoid confronting the life-changing impact that the machinery of the justice system has on individual lives.

Most people get their exposure to the justice system not from personal observation or participation, but rather from news reporting by local and national news organizations, newspapers and online periodicals. It is through this lens that defendants, judges and lawyers are presented to the public at large, which often includes judges, jurors and legislators. Public policy and decisions in individual cases are thus formed and shaped and influenced by the perspective of the justice system that is put forth by those in control of the news.

It is this perspective that framed the “tough-on-crime” years in America, which lead to excessive sentences for drug offenders, absurd mandatory-minimums which handcuff judges and prevent them from making individualized decisions, a rampant death penalty and fear-mongering election campaigns which persist to this day.

This one-size-fits-all view of all defendants as mythical “criminals” also influences jurors who are called upon to serve and determine the guilt of an individual. As Justice Frankfurter explained in Irvin v. Dowd:

One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure…How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding the matter designed to establish the guilt of the accused.

But the perspective to report fairly and neutrally and intelligently is hard to come by when the reporting is done exclusively by people with little or no familiarity with the justice system. Take, for example, America’s darling crime story of the last year – Serial and the murder of Hae Min Lee by, perhaps, Adnan Syed – and the storm of discussion surrounding the format and the narrator Sarah Koenig. While a significant proportion of the criticism focused on the racial insensitivity, Koenig’s greatest sin in my opinion was letting this opportunity to shine a spotlight on the fallibility of the criminal justice system go wanting.

By making the show about Koenig‘s own Woody Allen-esque quirks, she shines that spotlight inward to her own perspective, her own life-experiences and her own reactions to the facts of the case and then processes of the criminal justice system. Koenig’s assertions that “they must have had enough evidence to convict or else they wouldn’t have convicted him” lay bare a lack of understanding of reality.

That is because, in the end, she is a spectator, just like the hundreds of thousands who tuned in and downloaded her episodes. To her, just like to the many who write court reports by lifting out of the police blotter, experience is always shaped by being in the spectator’s section of a courtroom. To her and those like her, the system is fair and the system is just and that’s a matter of black and white. It is the modern day Coliseum – those who have can sit and watch the blood sport of those who have nothing and are subjugated by a system that confounds at every turn.

It’s unfortunate that Serial has become so popular as a detective story rather than an examination of how imperfect our system of laws is because it has legitimized the idea that the fallibility of the criminal justice system is nothing more than a spectator sport; that there is always a right outcome and a wrong outcome and that the job of the observer is to suss that out, instead of realizing that such an attitude strikes fear in the hearts of those hundreds of thousands who have to rely on the podcast listening elite to determine their fate.

[This is my latest column for the CT Law Tribune.]

Rewarding lying cops: America’s crisis of faith

There is a crisis of faith in America. A crisis that exposes the deep chasms that exist in our society. Traditionally a community caretaking function, and thus deserving of the highest levels of faith, trust and respect, policing in America is now a flashpoint; a litmus test through which to determine which side of the privilege aisle you rest your head on.

A Gallup poll released last week showed that while police departments were one of the institutions that Americans on average had the highest confidence in (57% overall), this was belied by deep divides among racial and political lines. Although, it should be noted, that 57% confidence in an institution whose sole function is to protect the lives and liberties of fellow citizens is truly an abysmal number.

Mathematics suggests that this overall percentage would be higher if police departments decided to make an effort to treat black individuals with the same care and respect they seem to treat white individuals. Blacks trust police at around 34% and urban blacks even less so.

Can you blame them? After the events of the last 5 months, starting with the death of Michael Brown, through to the homicides of Eric Garner, John Crawford and Tamir Rice, through to the mass demonstrations, the no-protesting zones, the “rioting”, the curfews, the non-indictments of Darren Wilson and Daniel Pantaleo, all of this piled onto the overwhelming yoke of stop and frisk, tough-on-crime, the drug war and a lost generation, is there any reason to expect that black Americans should trust any police officer?

Is it any surprise that there is no faith in the community caretaking function of visitor-officers, who are increasingly not a part of the community they purport to keep secure? Do we have any right to demand respect for people like Cleveland Police Patrolman Union chief Jeffrey Follmer who repeatedly refer to a slain 12-year old boy as “the male” and justify the actions of a police officer who almost immediately upon arriving at the scene shoots and kills that child? Why would any level-headed, rational, liberty-loving American give any modicum of respect to a police officer who believes, like so many before him, that it is their job to give orders and civilians’ jobs to obey and get out of the way, or die.

“How about this: Listen to police officers’ commands. Listen to what we tell you, and just stop,” he said. “I think that eliminates a lot of problems.”  “I think the nation needs to realize that when we tell you to do something, do it,” he added.

This is an actual statement by an actual police officer made in 2014 in the Greatest Country in the World, with all its individual freedoms and liberties.

Is there any wonder that there is no respect for police officers, when, on the one hand our courts repeatedly remind us that there is no greater public policy interest than one that ensures the truthfulness and integrity of police officers. These are the people we pay to protect us at night as we sleep. These are the people whom we ask to step in front of bullets for us. These are the people of whom we expect honesty, compassion and a desire to “serve and protect”.

Though if you were to step into a criminal courthouse in America, you would see that there is less truthfulness and more truthiness – truth that wouldn’t stand to be held back by facts – when it comes to testimony from police officers. Is it any wonder, then, that when black Americans accused of crimes confront their Blue Uniformed accusers and listen to them twist and churn and shuffle the truth into truthiness, that they would lose all respect?

I know of no sensible, pot-smoking, drug dealing individual who, upon being approached by police officers, would roll down his windows and offer up the information that he was carrying a lot of marijuana in the car. Yet this account of spontaneous confession is among the most popular narratives to be recounted in police reports across the state and, I suspect, the country.

I am sad to report that courts accept this ludicrous version of events. Is it because they willingly turn a blind eye to a dubious report of an encounter with an eye to a greater good – getting the drugs off the street – or is it because they truly have no experience in the world that is the subject of these prosecutions that they must believe that all Americans are Police fearing first and God second. For it is true that the police “serve” and “protect” the demographic that has up to very recently been the one that overwhelmingly populates our judicial benches.

Malice is not required to discriminate against others and I am certainly not implying that such malice exists. The injustice is a product of the way the system is set up and has been for decades.

Yet how do we ask our fellow citizens to trust and respect the police, especially when dishonest behavior on their part is not only not punished by our courts, but rewarded.

Earlier this week, our supreme court reinstated the employment of a police officer who had been terminated for lying while on the job. In a 3-2 opinion [PDF], the majority concluded that while there existed a strong public policy in requiring police officers to be honest, because this particular officer’s lies weren’t frequent or under oath, it wasn’t worth him getting fired. They cite to Brady v. Maryland as an example of the police’s duty to be honest and seek justice, which is ironic, because a prosecutor in Texas has just filed suit against his office for firing him for disclosing exculpatory information. But back to this case.

Officer Justin Loschiavo, of Stratford, CT, was suffering from epilepsy but had them under control. One day, in 2009, he suffered a seizure, lost control of his patrol car and struck two other vehicles. While no one was injured, he was removed from patrol duty. Over the course of the next 6-9 months, he sought to be reinstated. To that end he got clearance from his personal physician and then met with someone the town had hired to evaluate him.

Turns out, he removed documents pertaining to his seizures and his alcohol use from the file that he turned over to the town’s doctor. It was for this lie that the town sought to terminate him.

The majority makes a big deal of the fact that he didn’t lie to other officers or in the performance of his duties, but as the dissent from Justice Palmer points out [PDF], these are absurd statements: he lied and he lied to remain a police officer. He lied about his medical condition which could put others at risk. If that doesn’t strike at the very heart of what a police officer is supposed to do: be honest, be sincere and help others, then I don’t know what would. It makes no difference that he didn’t lie under oath. How are we to trust that when he does take the stand, with someone else’s liberty at stake – that what comes out of his mouth will be the truth and not some self-serving statement?

Justice Palmer concludes:

In sum, the town had no choice but to terminate Loschiavo’s employment as a police officer because his intentional and serious dishonesty has grievously compromised his credibility and integrity, and he has been rendered unfit to serve as a sworn officer.

I think the same can be said of black Americans’ view of police departments as a whole.

[This is my latest at the CT Law Tribune.]