An excerpt from Relentless Criminal Cross Examination by Kevin Mahoney, a criminal defense attorney. Available [HERE]
All-Too-Common Fact Pattern
The officer spies a teenage male driving a car down a leafy, upscale street. The male has done nothing wrong, committed no traffic offense, but he looks out of place—which is more than enough justification to pull him over. When the officer approaches the driver’s side door, he assesses the male. If everything is in order and the driver is dutifully submissive, the officer will let him drive on. If anything is amiss, or if the driver cops an attitude, that is grounds for a full-blown search of the car and its driver. Deciding that the driver is insufficiently grateful for the intrusion, the officer orders him from the car and, with the help of back-up, begins tearing apart the car’s interior. Unearthing a small bag of marijuana from beneath the passenger seat, the officer places handcuffs on the male and questions him about the grass. Figuring the officer has him, the male admits the marijuana belongs to him. Marching his arrestee toward his cruiser, the officer gives no thought to the constitutionality of the search. Later, he’ll draft his police report, knowing just enough law to construct a constitutionally valid search out of whole cloth. The kid, the officer supposes, will likely accept a tidy plea anyway. If the kid rejects a plea, the officer figures he can just take the stand and lie. The prosecutor will believe anything the officer tells him, and who is the judge going to believe—an 18-year-old kid who’s broken the law or an upstanding officer in a pressed uniform? Some months later, the officer takes the stand. The lies roll off his tongue. That he’s committing perjury troubles him not at all; the judge has no business interfering with police matters.
Brazen Police Officers and the Forfeiture of Freedom
If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.
In my experience, brazen police officers so frequently abuse their power that no one—no motorist, no juvenile, no adult, no professional of any kind—could make a compelling argument that constitutional rights afford any real protection from the state. How is it that a nation that prides itself on freedom would allow thugs with badges to behave like the KGB? We are no longer the beneficiaries of the proud, brave and intellectually gifted Founding Fathers. We are no longer free men and women. Today, we are as free as penned sheep; free to crowd one another, to eat the garbage emptied into the trough, and to mindlessly bleat until the hour of reckoning.
Many would make the argument that the government has taken our rights from us. Others hold that only after a death struggle would we allow the government to tear our rights away from us as we clenched them to our bosom. For the government, a struggle that might have proved difficult or might have been lost was, indeed, unnecessary. The authorities needed to do no more than whisper, “Boo!” and we surrendered our rights. Like a schoolboy presenting his teacher with a shiny apple, we have scrubbed our faces clean, arranged our smiles, and, reaching way up, bestowed our precious rights on the government. We are no longer fearless patriots, but well-behaved simpletons eager to please the master who has assured us that these rights make it more difficult to protect us. They appeal to us, “How can we possibly keep you safe and free if our efforts are forever being thwarted by antiquated, counterproductive rules? You do want to remain free, don’t you?” “Oh, yes,” we reply, “we love freedom; do whatever is needed to keep us free.” We are bleating sheep.
But your client, fresh from his arrest, bewildered and terrified asks, “Where have my rights gone?” It is only then, when he is in the custody or crosshairs of law enforcement, that he appreciates the magnitude and awesome power of government.
In my experience, by the time a client has reached a lawyer, the police likely have violated his constitutional rights. Most lawyers think of constitutional rights as something they assert on their client’s behalf in a courtroom. While the court might provide a remedy, these rights were designed to keep us free of government interference and intrusions as we go about our business, on the street and in our homes. Remarkably, although the Framers took great care to detail our rights, they included no remedy for the breach of these protections. The Framers included remedies for disgraced presidents, unethical congressmen, and dishonest judges, but no remedy for the violation of a citizen’s rights. These ideals—so novel, so uplifting, and so inspiring—were designed to symbolize, as much as safeguard, the dignity of the individual citizen. Having cherished, considered, and reserved these rights, this dignity, to their fellow citizens in the document from which they would manage this fledgling nation, perhaps the Founding Fathers believed that the men and women who had fought the British would respect the ideals that drove them to the fight. Just maybe, they believed so highly in these rights that they did not believe they needed to include a remedy; that those charged with enforcing the law would, as fellow citizens, respect these rights. Perhaps the Framers were under no illusions about their fellow citizens and simply wanted to leave it the courts to fashion the appropriate remedy. Whatever their opinions of their fellow man, none could have anticipated the degree to which, today, the law enforcement of a democratic nation would come to view its citizens as enemy combatants.
Law enforcement runs roughshod over our rights. Moronic television shows, celebrating the tough cop who punches a suspect in the head and remarks, “I just read you your rights,” encourage the abuse. Many, maybe most, police officers have nothing but derision for the rights of citizens they suspect of crimes. As instance after sickening instance of police brutality leads the evening news, one cannot help but conclude that the police administer “justice” before turning the suspect over to the system. At best, police officers reluctantly acknowledge our constitutional rights.
Where Revolutionary-era Americans once defiantly shed blood to wrestle their God-given rights from the King, Americans today are a gutless lot. As citizens, obligated to each other, we expect little from the police and demand even less. We are intimidated, both by the police and the nameless, ever-present threats that surround us. If the police transgress upon our rights, only the bravest—or drunkest—will protest. And it’s getting worse; unnerved by criminals, terrorists, and assorted bogeymen, we have forfeited our rights. To the extent that we have given this a modicum of thought, we have mistakenly concluded that when times improve, these rights can be reclaimed as easily as they were discarded. As we have done away with these rights—this foolish excess in a time of danger—we have screamed ourselves hoarse for the three prongs of hard justice: infinite accountability, trials tipped in favor of the government, and penalties ever escalating in length and severity.
§3:03 Judge Is Likely Just Another Frightened Citizen
Into this environment of suspicion, hatred, and fright wades defense counsel. To an audience of one, he must argue that the police are lying and are to be distrusted, and that to retroactively reinstate those rights, the evidence must be suppressed. Few judges are immune to the country’s determined shift to the right. They, too, are scared. For all their power, they are just as vulnerable as any other citizen when they walk the streets. In fact, many believe that their black robes place them at greater risk. They live in fear that some crazed criminal will waltz into the courtroom and shoot at them. The judges demand metal detectors, scanners, and additional court officers. They read the very newspapers that will praise them for their brand of hard justice and castigate them for their betrayal of the community-at-large in upholding some criminal’s half-baked right. They do not just live in this “betrayed” community, they depend on its police force for protection; judges call the police, not our clients, when they are under threat.
§3:04 Culture of Testilying
In my experience, most police officers will lie under oath in order to protect the fruits of legally questionable arrests or searches. To these officers, a “white” lie to prevent an “injustice”—the judge suppressing the evidence because of his interpretation of some vague constitutional precept—is morally acceptable. This lie includes fabricating the police report, lying to the prosecutor, lying to the grand jury, and lying to the trial jury. The lies sit easily upon these officers because the guilty receive the punishment they deserve. Defense counsel’s cross-examination at the hearing on a motion to suppress is part of the game. The officers are not so much lying, they reason, as matching wits against an adversary.
Many police officers, but maybe not most, will exaggerate, bend, or reorder the facts, falsely attribute statements to the accused, or lie about what they observed in order to convict a person they believe to be guilty. Few officers will lie to convict a person they believe is innocent. (Of course, to the police, every innocent act points toward guilt.)
How is it that the police, sworn to uphold the law, would come to so regularly, so blithely commit the criminal act of perjury? To understand the culture of testilying, consider the personality types commonly attracted to law enforcement: 1) the emotionally immature who view the world in black and white terms; 2) bullies attracted by the power; 3) those looking for a decent job with benefits; and 4) those who want to serve their fellow man. The officers who live in a black and white world would consider allowing the criminal to get away with his crime worse than a white lie to protect an arrest. To the bullies, lies are just another way to demonstrate their power over their victims. To the guy who wanted only a decent salary and benefits, lying is just part of the job. Those who wish to serve their fellow man are, in my opinion, the least likely to commit perjury.
Police recruits are not taught to lie at the Police Academy, and while there is no shortage of unethical prosecutors, I believe only a minority of prosecutors directly instruct police officers to lie. Prosecutors encourage the practice all the same by doing little or nothing to discourage testilying, or, worse, by asking leading questions with winks and nods. Rather than directly and formally encouraging these recruits and officers to commit perjury, these academies and prosecutors teach the upstarts to view defense counsel as lying scoundrels. Cross-examination is a contest, and the outcome is presentation determinative—in other words, the best liar wins.
The real training is done off the official police grid. More experienced officers teach the newly minted officers how “real” police work is done, how order is maintained on the front lines and how to keep the bad guys off the street. To the experienced officers, perjury is no different from any other tool available to them—whether it be their firearm, their cruiser, or their badge—to combat crime. While no one has admitted as much, at least not to me, I’m convinced that before a hearing on a motion to suppress on an important case with “problems,” the police witnesses meet to map out their testimonies.
What have experienced police officers seen of society that impresses upon them to so prize the truth? Lying isn’t the exception, it’s the rule. From the president on down, it’s all spin, all the time. Officers are often on the receiving end of malicious, career-threatening lies. To extricate themselves from trouble, defendants manufacture outright lies against the officers who arrested them. Women who retreated to locked bathrooms, bruised and bloodied, to dial 911 and report their abusive husbands, later deny their husbands struck them and accuse the responding officers of brutality. Testilying is not excusable, but it is understandable.
In my experience, most judges are, at best, indifferent to police perjury. So untroubled are some judges by obvious perjury that there seems to be an unspoken agreement: the cop pretends he is testifying truthfully, and the judge pretends he believes the testimony. Other judges, feeling a small tug to act conscientiously, will do their best to reconcile the irreconcilable. In the end, despite your winning issue and blistering cross-examination, the judge’s findings mirror the officers’ testimony, and he denies the motion. To reach such absurd factual conclusions, this robed jurist, like a starving man in some third world country, must have sifted through a pile of testimonial excrement to find something edible. A judge willing to pick through the excrement is green-lighting perjury.
If testilying is, in the end, understandable, make it understandable to the judge and to the jury.