Saturday, June 2, 2012

Epiphany

When my love swears that she is made of truth,
I do believe her though I know she lies.
 
Who'da thunk it?
Cops lie.
Under oath.
On the witness stand.
They lie to judges at motion hearings. They lie to juries at trials. They lie in depositions.
Really, they do.
Not all of them, and not all the time.  But enough of them.  More than enough, really, since even one lying cop on even one occasion is too many.
This is news to absolutely nobody who pays attention.
There is, after all, a reason the word testilying was coined and then made it into general circulation among those who practice in the criminal courts.
Now, if you couldn't figure out the reasons yourself, Brian D. Fitch is ready with the explanation: It's because they can rationalize it away.  Fitch has the credentials to explain.  He is, after all, a Ph.D. psychologist and also a lieutenant with the LA County Sheriff's Deparatment.  He hangs out professionally with cops who lie.
The solution, Fitch says, is serious ethics training, a clear ethics policy, and a system of rewards and punishments.  All this needs to be done in a "safe, supportive environment."  That way, over time, police will come to embrace honesty and to rat out the ones who lies and cheat.  Fitch even says that there's evidence this will work.
Sure.
Scott Greenfield is less than enthusiastic.
While I'm as much of a fan of empirical evidence as the next guy, I have to wonder why teaching police officer that it's wrong to lie demands rigorous training in a "safe, supportive environment." What's wrong with smacking them across the face with "don't lie"? But then, I'm no psychologist, and likely not as supportive of the difficulties of being a good cop as Fitch.
See, there are grey areas, borderline cases. 
What, exactly, is my obligation when my client tells me in confidence covered by the attorney-client privilege that the guy who's being executed next week is innocent of the killing and my client knows that because he's the one who did it?  Legal ethics point one way, morality maybe another.  Lawyers actually deal with that sort of issue.
The highway patrolman has to decide whether to stop the guy on the expressway who's careening wildly from lane to lane but close to the speed limit or the one who's driving 110 but sticking to his lane.
The doctor has to figure out exactly how to balance the need to give an honest assessment or risk with the need to provide some honest hope to the maybe, but maybe not, terminal patient.
I mean, sure, there are tough calls around the margins.
And then there's lying. And beating the shit out of someone because he didn't jump high enough or fast enough or mouthed off a little bit.
If you need training in those, it's hopeless.
And then there's Robert Fulghum's point.
And the larger point which is that if you didn't get those basic rules, you have no business being a cop.

I wasn't going to write about this because, really, it's kind of self evident.
Except, of course, that it's not.
I mean the rules are clear enough. Act with integrity. Don't lie. Don't cheat. Don't beat the shit out of people for fun.  But somehow we, too many of us, come to excuse it.
Judges know that cops lie on the witness stand.  They're as familiar with testilying as we at the defense table are.  But, for the most part, they choose to believe. Not just to give cops the benefit of the doubt, but to actually believe things they know are lies.
Except sometimes things happen.
The lie is too much and the judge just won't buy it.
Forty years ago this month, some burglars left a piece of tape on a door latch where it caught the eye of a security guard. In time, it brought down the President.
Last night, after 8,019 games, after a number of almosts, Johann Santana pitched the first no-hitter in New York Mets history.

Which is one reason we keep doing this work.

Oh, here's all of Shakespeare's Sonnet 138.
When my love swears that she is made of truth,
I do believe her though I know she lies,
That she might think me some untutored youth,
Unlearned in the world's false subtleties.
Thus vainly thinking that she thinks me young,
Although she knows my days are past the best,
Simply I credit her false-speaking tongue:
On both sides thus is simple truth suppressed:
But wherefore says she not she is unjust?
And wherefore say not I that I am old?
O! love's best habit is in seeming trust,
And age in love, loves not to have years told:
   Therefore I lie with her, and she with me,
   And in our faults by lies we flattered be.

h/t Greenfield who got the link to Fitch, well here's his summary.
Via Radley Balko and Pete Eyre, by way of an interesting post by Howard Friedman at CopBlock. Whew.

12 comments:

  1. "What, exactly, is my obligation when my client tells me in confidence covered by the attorney-client privilege that the guy who's being executed next week is innocent of the killing and my client knows that because he's the one who did it?"

    You may have stumbled on the holy grail of death penalty abolitionists, so long as you keep your mouth shut till after the killing: the execution of a demonstrably innocent man.

    Seriously, though, seems that the law, or at least the relevant prosecutor's office, should provide for use immunity in this type of situation. As I've noted before, professional ethics would seem to permit although not require disclosure of the privileged information in this kind of situation, and "morality" would seem to therefore maybe require disclosure, since professional ethics apparently permits it. (Unless there is a subsection of the ethics rules of which I'm not aware, in which case by all means correct me, and I will duly amend my opinion. An analogous situation is if your client informs you he's arranged to have a witness against him killed.)

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  2. On the other hand, in the absence of use immunity this disclosure could get your client himself killed. While the ethical rules seem to permit disclosure of privileged communication to prevent reasonably certain death or substantial bodily harm, not sure ethics or morality dictates that we should "prefer" our own client be potentially killed rather than somebody else's client, even though our client is "guilty" and the other poor guy is innocent of the crime our client committed. Hope I never find myself in that kind of situation. Again, use immunity would really seem to be called for there, and it seems the enterprising defense lawyer could figure out a way to make it happen.

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  3. Sorry for not realizing everything I wanted to say in one comment. The provision of use immunity would make it too easy for a buddy to claim he did it in order to get his guilty buddy off, wouldn't it? What a mess. I'm sure there must have been a movie based on this kind of scenario.

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    1. A consolidated reply:

      First, I started from the premis that the statement was privileged. If it is, I don't know of any ethics rules (moral rules are a different question) that would permit disclosure without the client's permission. There was a case in Illinois a couple of years ago, you may recall, where lawyers sat on an admission of guilt for something like 26 years while the innocent guy stewed in prison. They acted ethically, but there was considerable discussion over the morality of it. I was tangentially involved in an analogous case a few years ago, this time actually concerning someone on death row - though not with an imminent date. The problems are real, actually occur, and are confounding.

      As for use immunity, I can't imagine it would be embraced by the prosecutorial community which is inclined, in any event, to believe that all claims of "I did it, the guy you convicted of it is wholly innocent" are fabrications. A procedure for routinely providing immunity to folks who made those claims might encourage the odd person to fess up. It would almost surely, as you note, encourage false confessions.

      I've also had to deal, personally, with something remarkably close to the "analogous situation" you mention.

      When I say that these are real ethical issues that real criminal defense lawyers encounter, I'm not just speaking hypothetically.

      But all that is beside the point. The actual point is that there are circumstances where the correct ethical (and/or moral) answer isn't self-evidently clear. But lying under oath, or whomping someone (or killing him) because he didn't genuflect with an appropriate degree of subordination isn't among them - not even a close call.

      And yes, there are movies.

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    2. Not to belabor a side issue in your post, but the Rules of Professional Conduct, at least in Indiana [Rule 1.6(b)(1)], appear to permit, but not require, disclosure of ordinarily privileged communications without the client's permission "to the extent the lawyer reasonably believes necessary . . . to prevent reasonably certain death or substantial bodily harm," which would seem to cover both the situation where an innocent man is about to be executed and the analogous situation where the client informs his lawyer that he has arranged to have a witness against him killed.

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    3. They're talking about turning in the client who's planning to kill one of the witnesses against him, not about one who makes an allegation that, if believed after a hearing, might take someone off death row. Though I suppose that the rule would likely be extended to resolve a grievance in favor of the lawyer IF the allegation actually got believed and saved the life.

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  4. Do cops lie? Of course - and it's unacceptable.
    Do they lie more than defense investigators (whom I've caught lying and inserting new facts after witness statements were signed)? It's probably a tie -- but the cops testify more often, and have a bigger trail of reports, notes, and radio recordings for cross-examination.

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    1. There's a dramatic difference between adding additional facts (even if that's improper, which it isn't always) and lying. Of course, the additional facts can be lies, but really that's all beside the point.

      Nobody is calling for a program to gently teach, in a nicely supportive way, defense investigators that lying under oath is wrong. Perhaps more to the point, judges and juries (and prosecutors) don't typically pretend to believe and otherwise excuse lies from defense investigators as they do from the police. And of course the police have a special role in our society.

      On the other hand, I've long maintained that just about everyone lies on the witness stand. The first lie, I have said more than once, is swearing to tell the truth.

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  5. Yes, Cops lie. It is certain true. I was affected by a lire cop.

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  6. Of course cops lie. It's like that since the dawn of time. It is as true as Barack Obama is the first black president of the United States. By the way, I appreciate the Shakespeare quote.

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    1. Always glad to provide a literary feast.

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  7. I started from the premis that the statement was privileged. But all that is beside the point. The actual point is that there are circumstances where the correct ethical (and/or moral) answer isn't self-evidently clear

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