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February 3, 2013

"Why Police Lie Under Oath" and deeper challenges involving criminal justice metrics

03POLICE-articleInlineThe title of this post is the partially drawn from the headline of this opinion piece in today's New York Times, which was authored by my Ohio State College of Law colleague Michelle Alexander.  Here is how it starts:

Thousands of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but?  As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”

But are police officers necessarily more trustworthy than alleged criminals?  I think not. Not just because the police have a special inclination toward confabulation, but because, disturbingly, they have an incentive to lie.  In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.

That may sound harsh, but numerous law enforcement officials have put the matter more bluntly. Peter Keane, a former San Francisco Police commissioner, wrote an article in The San Francisco Chronicle decrying a police culture that treats lying as the norm: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath.  It is a perversion of the American justice system that strikes directly at the rule of law.  Yet it is the routine way of doing business in courtrooms everywhere in America.”

Though focused on police practices, this piece goes on to touch upon the broader systemic problems that can result from "get tough" metrics (much too?) often being used by police and prosecutors and rewarded by legislatures:

Police departments have been rewarded in recent years for the sheer numbers of stops, searches and arrests. In the war on drugs, federal grant programs like the Edward Byrne Memorial Justice Assistance Grant Program have encouraged state and local law enforcement agencies to boost drug arrests in order to compete for millions of dollars in funding.  Agencies receive cash rewards for arresting high numbers of people for drug offenses, no matter how minor the offenses or how weak the evidence.  Law enforcement has increasingly become a numbers game.  And as it has, police officers’ tendency to regard procedural rules as optional and to lie and distort the facts has grown as well. Numerous scandals involving police officers lying or planting drugs — in Tulia, Tex. and Oakland, Calif., for example — have been linked to federally funded drug task forces eager to keep the cash rolling in....

The natural tendency to lie makes quota systems and financial incentives that reward the police for the sheer numbers of people stopped, frisked or arrested especially dangerous. One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, “get tough” mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.

And, no, I’m not crazy for thinking so.

As regular readers likely realize, I am a big fan of data and metrics in the operation of modern criminal justice systems (which is, surely, a by-product of the fact that I am much more drawn to consequentialist rather than retributivist theories of punishment). Thus, as a general matter, I am not opposed to the reality that law enforcement, as well as other parts of our modern criminal justice system, "has increasingly become a numbers game." But, as this opinion piece highlights, we need to be conscious and cautious about whether the metrics were are using are the right ones and about whether these metrics may be harmfully distorting the ways in which various criminal justice actors go about doing their jobs.

I have been giving extra thought to these issues lately in part because of this recent post noting a prosecutor taking with pride about extra long federal sentences and this recent post about the US Sentencing Commission's new Booker report noting that the number of federal offenders has substantially increased in recent years.  But all sort of other major criminal justice issues and debates can (and should) turn on debates over metrics.  For example, does more guns, as some contend, really result in less crime?  And what will and should be the metrics used to judge the success or failings of  modern marijuana reform efforts? 

Staying focused on sentencing issues, the nationwide movement toward so-called "evidence-based" reforms also has, hiding deep within, really hard questions concerning what kinds of "evidence" are most valid and most important in the continuing evolution of sentencing systems.  Is saving a lot of taxpayer money a marker of sentencing reform success if crime ticks up a bit?  How about simply having fewer persons with liberty restricted by being in prison or subject to criminal justice control? (Maybe now that Nate Silver has some free time until the next election cycle gets into full swing, perhaps he can focus his impressive data-crunching skill on these issues and all the challenges they present.)

Some recent and older related posts implicating metric challenges:

February 3, 2013 at 12:32 PM | Permalink

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Comments

I consider the police to be mere thugs in agency for the prosecutor, and the criminal cult enterprise now running its con, Inquisition 2.0, on the American people.

Nevertheless, 20/20 had a piece about the NYC Transit Police. They left wallets containing $100 plus ID cards on the subway platforms, to test about 10 officers. Every single one, contacted the owner and returned the wallet with the money still in it.

Same testing of LA Police. Same result:

http://abcnews.go.com/Primetime/story?id=132229&page=1

2 officers refused to accept a turned in wallet, saying, it was too much work to get them back to the owners.

Posted by: Supremacy Claus | Feb 3, 2013 1:32:03 PM

Sweetie: If you do not like the racial disparity in incarceration rates, try addressing its real cause. We know that police lying has to be a small problem, and a weak factor. The victimization surveys indicate that racial disparity in incarceration stems from the absolutely symmetrical and matching racial disparity in victimization.

One thing people like Prof. Alexander will never do? Criticize the feminist lawyer for the destruction of the black family, and the resulting disparity in rates of bastardy. Why won't over entitled, highly privileged people like Prof. Alexander ever address the real cause? Because they are ignorant of empirical methods? No. Because they do not want to reduce crime, since crime generates more big government. This article is not only a distraction, but is written in bad faith. To throw the public off the scent of the real causes of racial disparity in incarceration.

Another point rebuts this offensive piece. Real black people, from Africa, from the Caribbean, not the slightly tan Southern white trash passing as black, have intact families, and traditional values. Their skins are far darker than the pseudo blacks complaining about racism. Not only is their incarceration rate lower, they are doing better than whites economically according to the census. This rebuts the charge of racism fully. Not only is crime lower among immigrants, admittedly a selected group, it is lower back home, where people have to live on $500 a year, without self-selection, and skin color that is pitch black. Prof. Alexander should try to explain that without mention of the bastardy rate from the all out assault of the feminist lawyer on the black family in our nation.

Lastly, this piece is in the NY Times, a left wing propaganda organ devoid of credibility, basically a hate speech outlet. It has the credibility of the Kourier, the KKK magazine.

Posted by: Supremacy Claus | Feb 3, 2013 2:52:24 PM

Cops lie because judges and prosecutors tolerate it.

Posted by: C.E. | Feb 3, 2013 3:46:03 PM

C.E. --

"Cops lie because judges and prosecutors tolerate it."

If cops lie (a very few do, sure, but they don't last long because people get on to them) it's probably to keep up with defense lying. Since the latter enterprise is hopeless, however, it's best not to start.

And now to the questions that reflect what actually goes on:

Q: Why do defendants lie?

A: Because they're guilty and it's the best way to beat the rap.

Q: Why do judges and prosecutors tolerate it?

A: Because it's so routine that to go after defense lying would occupy all their time, which has to be devoted to other things defendants do, like murder, child rape, robbery, swindling Grandma and other fun stuff.

Q: Why do defense lawyers look the other way?

A: Because they don't give a good God damn, and, to the extent they do, figure the system is merely the Big Bad Fascist Boot Upon the Neck of the Dreadfully Oppressed, so lying is a good way to retaliate. Besides, if you upbraid the client about lying, he'll get mad and won't want to cough up the fee. Can't have that!

P.S. Some parts of the above are facetious. I'll let you figure out which.

Posted by: Bill Otis | Feb 3, 2013 5:03:48 PM

Supremacy

In my case it was not the police, but a DEA Investigator who lied under oath, and withheld evidence to the contrary. I was told on good authority that he wanted my husband out of the picture for a long time. He got his way. He died in prison. My husband was a good man, but at least he is not suffering anymore. Wish I could say the same. God help us all.

Posted by: widow | Feb 3, 2013 5:06:45 PM

"Cops lie because judges and prosecutors tolerate it."

Otis is off the chart on his reply, justifying cops lying becuase the defense might lie. Nice rationalization, Mr. Otis. They lie because in federal court defense witness are charged with purjury probably 99 times as often as cops. Period. The greater problem is the rampant lying of cooperating witnesses called by the prosecution in hopes of whopping substantial assistance motions. When, if ever, even when the jury rejects thier testimony, are they ever charged with perjury? Virtually never, because AUSA claim they believe them even when the jury rejects their testiminy and the judge refused to grant the substantial assistaince becuse they have lied in court.

Posted by: SteveProf | Feb 3, 2013 5:29:32 PM

Mr.Otis, how many supression hearings and jury trials did you actually first chair where you would be in a position to have an informeded opinion if the cop lied? Cops get indicted and charge every day with crimes across the country and most plead or are convicted but I guess they commit lots of crimes but are honest in their reports and testimony? Right

Posted by: SteveProf | Feb 3, 2013 5:35:23 PM

Widow. Most drastic bad events have multiple factors. Be honest with yourself. What are the other factors that entered into your husband's dying in stir? Also did you benefit from his overall criminality, and therefore are biased in your selection of the facts to present? How many crimes was your husband committing per day at which he was not caught?

I support the use of pretext in some cases where the defendant is dangerous. A drug kingpin is a mass murderer. No witnesses will ever testify because he kills families. He should be executed if caught shop lifting. This is the principle behind the long sentence of Al Capone for tax evasion, a seeming malum prohibitum, not a malum in se.

Posted by: Supremacy Claus | Feb 3, 2013 6:00:24 PM

"Otis is off the chart on his reply, justifying cops lying becuase the defense might lie."

That's a 100% falsehood. At no point did I justify or attempt to justify cops lying. I gave a reason COPS might conceivably front for lying, never suggesting in any way that I thought the reason was a JUSTIFICATION for lying.

You understand the distinction, don't you? The REASON McVeigh gave for mass murder at the federal building was that he was in a war with an oppressive government. Do you think I regard that as a JUSTIFICATION?

Kindly retract and apologize for your false statement that I am "justifying" police lying.

"They lie because in federal court defense witness are charged with purjury probably 99 times as often as cops. Period."

And how many more times do defense witnesses ACTUALLY commit perjury?

Posted by: Bill Otis | Feb 3, 2013 6:03:18 PM

Widow. In fairness, the investigator is an agent of the prosecutor. The prosecutor has dozens of duties to the defendant enumerated in statutes in the Rules of Conduct, of Evidence and of Criminal Procedure, plus in case law (e.g. a prosecutor may not cry during a closing statement).

If the investigator withheld exculpatory evidence, that is negligence per se because of the statutes prohibiting such. I strongly support your right to sue the prosecutor for damages, and any payout should come from the personal assets or insurance the prosecutor should be forced to carry. The Supreme Court has granted absolute immunity from such accountability, even with knowledge (bad faith). This immunity fully justifies retaliatory violence. So I am mostly on your side.

Bill has tried to justify this privileged position as one among others we grant to government to protect us. However, the immunity is bad for the specialty, promoting carelessness and bringing it disrepute. It is so filled with error, tort liability can only help it improve. The liability should extend to discretion to prosecute. The failure to prosecute may result in injury to future victims. That duty is absolute, and is at the very essence of why we have prosecutors at all, the duty to protect the public.

Posted by: Supremacy Claus | Feb 3, 2013 6:10:03 PM

SC --

"Bill has tried to justify this privileged position as one among others we grant to government to protect us."

I can't claim credit (or blame, as you might say). The Supreme Court, per Justice Powell, got there even before I went to the US Attorney's Office. Imbler v. Pachtman, 424 U.S. 409 (1976), available here, http://scholar.google.com/scholar_case?case=5758861728040203406&hl=en&as_sdt=2&as_vis=1&oi=scholarr

The case grants absolute immunity. There were no dissents. Brennan and Marshall concurred in the judgment and said they agreed with much of the Court's opinion.

When the defense can't even get those two, you know the issue is a real loser.

P.S. Your first two comments contain some genuine nuggets, but, unfortunately as usual, they get lost when you veer off. You have the learning, insight, independence of mind and adult manners to make a significant contribution here, but, with all respect, you lose almost all the potential audience with some, uh, exotic views to which you appear to be zealously devoted.

Posted by: Bill Otis | Feb 3, 2013 6:41:06 PM

Mr. Otis, in the context of your post and many prior posts almost always rising to the defense of prosecutors that seeming can do no wrong I read it, as I am sure many do, as a justification, a rationalization for you obvious hostility to the defense. If it wasn't a justification why didn't you argue that they should be vigerously prosecuted and given lenthly sentences for thier corruption of the criminal justice system?

Posted by: SteveProf | Feb 3, 2013 7:12:15 PM

Personally i think a large part of the american law enforcment sytem has become a defacto criminal gang and should get the same option any other gang member gets when caught in the act. Surrender or DIE!

Your choice!

as of those fucktards on the USSC sorry bill but all that means is it's time to set some new judges no matter how much force is needed to remove the current holders!

Posted by: rodsmith | Feb 3, 2013 7:17:30 PM

Mr. Otis,
The origin post was about police lying. You, in a single post turn that into an attack on defendnats and defense lawyers. It just shows your obvios deep-seated bias against anythign and anyone related to the defense function or any ruling by a court on their behalf. I find you an affront to the role of justice that AUSA's are supposed to seek.

Posted by: SteveProf | Feb 3, 2013 7:17:40 PM

I would like to believe that police don't lie on the stand very often. I bet they don't. But as for why they do it and how they get away with it, the answer is not because judges are more likely to believe them than defendants, it's because the only one who can bring perjury charges will never do it. The same is true of cooperating witnesses, which clearly lie more than police do. But I might be ignorant so if someone can answer this question I would appreciate it: has a prosecutor ever charged his/her witness - whether it be a police officer or cooperating witness - with perjury for lying in the prosecutor's favor?

Posted by: Thinkaboutit | Feb 3, 2013 7:20:41 PM

Steve Prof --

"I find you an affront to the role of justice that AUSA's are supposed to seek."

Your opinion does not even arguably justify the bad faith you constantly display in your posts.

BTW, if you can find any court opinion, anywhere, taking that or any similar view of my conduct over 18 years as an AUSA, please post it, word-for-word. Don't worry. I'm patient. I'll wait.

In the meantime,I will ask again for your apology for your patently false statement that I am justifying police lying.

P.S. It is my opinion that, at this point, ANYONE who perjures himself at trial should, in your words, "be vigerously prosecuted and given lenthly sentences for thier corruption of the criminal justice system."

Do you agree with that opinion?

Posted by: Bill Otis | Feb 3, 2013 7:35:04 PM

Yes I agree, Mr. Otis, but law enforcement officers, officers of the court, and folks who hold a position of trust in the system, most of the time, failing other strong mitigation, should be treated more harshly. Were you always so thin skinned and defenseive or is that part of your has been persona?

Posted by: SteveProf | Feb 3, 2013 7:59:14 PM

Police lying on the stand is unacceptable. When it results in incarceration or the police escaping liability for a civil rights violation, it is nothing more than base tyranny.

Posted by: federalist | Feb 3, 2013 8:21:14 PM

Steve Prof --

"Yes I agree, Mr. Otis, but law enforcement officers, officers of the court, and folks who hold a position of trust in the system, most of the time, failing other strong mitigation, should be treated more harshly."

Correct. This is one of the reasons the Guidelines provide an enhancement for abuse of trust.

I see you still have not answered the question about how much more defendants and defense witnesses lie than the cops. What is the answer?

"Were you always so thin skinned and defenseive or is that part of your has been persona?"

You accused me of "justifying" police perjury. That accusation is an extremely serious one to make against a lawyer and law professor. It is also false, as you knew when you made it and know now. But now I hear that the problem is not your easy willingness to make scurrilous and false attacks, but my supposedly being "thin-skinned," that being manifested by the fact that I refute them.

Do you even hear yourself?

I said you were posting in bad faith, and you just dig deeper.

BTW, where's that case -- any case -- in which any court anywhere agreed with your stated view that I am "an affront to the role of justice that AUSA's are supposed to seek"? Got that one yet? Weren't you going to put that up to buttress your latest attack?

The courts knew me, and knew me for a long time. You don't know me at all; we've never met to my knowledge. Your belligerent (if long-distance) opinion is that I'm a professional disgrace. Theirs is such that I was an invited guest to the DC Circuit Conference last year, and have been an invited guest to the Fourth Circuit conferences in years past. But I guess you know my character better than they do, right?

I will ask a third time for your retraction and apology.

Posted by: Bill Otis | Feb 3, 2013 8:34:42 PM

In order of frequency of lying in over 1500 fedreal cases I would rank as follows:
1) cooperating gov witnesses
2) defendants
3) defensive witnesses
4) law enforcement

I ranked defendants second because far more cooperators testify in trials and sentencings than defendants.
I still read your post as justifying the reason why cops lie. I did not imply you were in favor of them lying but you sure were fast to jump on defendants when the original post had nothing to do with the defense --quickly revealing your strong anti-defense bias.

Posted by: Steve Prof | Feb 3, 2013 10:00:26 PM

Otis, you are so insecure you are always trying to boast and flaunt your credentials. Keep it up its more entertaining than the Super Bowl.

Posted by: Steve Prof | Feb 3, 2013 10:03:18 PM

Bill: "...you lose almost all the potential audience with some, uh, exotic views to which you appear to be zealously devoted."

I have my fans here, but they are quiet. They likely outnumber the hyper sensitive feminist lawyers who refuse to rebut me, but instead want my views censored, and to be rid of my loving dissent and lawyer correction.

My exotic views come from an academic public high school education, and Western Civ 101. Others are the natural results of an utilitarian analysis. This analysis is the sole path to the restoration of the self stated goals of every law subject, now in utter failure. Statues will be erected to honor the Supremacy at ABA headquarters, because I will save the profession once payback begins, after a major terror attack.

Begin by understanding that the methods of the Inquisition have been adopted by the lawyer profession. Infinite number of rules, supernatural, unverifiable central doctrines, violations by all productive people, plea bargains that enrich the new church 2.0.

Posted by: Supremacy Claus | Feb 3, 2013 10:14:35 PM

As a reader, I enjoy reading the lawyers at work, beating each other up with facts and legal citations. Personal remarks are an interruption of the fun, jarring and disappointing to me.

Posted by: Supremacy Claus | Feb 3, 2013 10:18:06 PM

Otis in my opinion you did justify perjury by cops ....but get over the fact you are a lawyer and sometime law professor....you take yourself and your extremely modest life achievements far to seriously. They and you are no big deal. Explain why when the post had nothing to do with the defense function you immediately go on your predictable diatribe.

Posted by: Steve Prof | Feb 3, 2013 10:24:03 PM

Steve Prof --

"Otis in my opinion you did justify perjury by cops ...."

Actually reading my words will reveal more than "your opinion" of them. I see you refrain from quoting them. My goodness.

"...but get over the fact you are a lawyer and sometime law professor....you take yourself and your extremely modest life achievements far to seriously. They and you are no big deal."

If that's true, then it's obvious you should devote yourself that something that is.

"Explain why when the post had nothing to do with the defense function you immediately go on your predictable diatribe."

You don't give me or anyone else on this blog orders to explain anything. Do you think you're a "big deal" (to borrow a phrase)?

But I'll humor you, since it's beyond obvious that you need it. The entry is completely one-sided and jaundiced against the police. Yes, some police lie (as I acknowledged in my very first comment), but, while that is never justified, it is far, far from the whole story about what goes on, as you yourself acknowledge at Steve Prof | Feb 3, 2013 10:00:26 PM.

It's revealing that you so chafe against the rest of the story getting told.

P.S. Are you proud of the way you've conducted yourself here? Of your smarmy, rude and insulting behavior? Of your obssession with ad hominem instead of legal substance? Is this the way you teach your children to behave? Is it the way you behave when you have to face adversaries face-to-face in court?

Sure it is.

Posted by: Bill Otis | Feb 3, 2013 10:59:06 PM

"'As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but? As one of my colleagues recently put it, 'Everyone knows you have to be crazy to accuse the police of lying.'"

I may have missed this in law school, but isn't it a violation of Due Process to have the accused in front of the jury in an orange jumpsuit? If that's the case, then Ms. Alexander should correct her piece.

Posted by: federalist | Feb 4, 2013 2:20:02 AM

"I find you an affront to the role of justice that AUSA's are supposed to seek."

Where are all of those who pillory me for ragging on various Justices?

Posted by: federalist | Feb 4, 2013 2:22:13 AM

federalist --

Not to worry. Mr. Prof got on me for merely calling Judge Gleeson "Gleeson." You might think that such a thing is too trivial and juvenile to be the subject of a post, but you'd be wrong.

Many, many times here, Scalia and Alito, among other conservative jurists, have been lambasted, but Mr. Prof had not a word of complaint on those occasions (to be fair, neither did other pro-criminal types).

Ain't selective outrage wonderful!

Posted by: Bill Otis | Feb 4, 2013 3:16:41 AM

Federalist -

If the defendant has a family that brings him civvies or if his lawyer buys him respectable clothes, which is a cost that courts don't reimburse, the court can't force the defendant to wear the orange jumpsuit. If the defendant has no outside source of regular duds, he wears the jumpsuit and that's not a due process violation.

Posted by: arfarf | Feb 4, 2013 7:09:09 AM

What Mr. Bill is really attacking with his straw man is the very foundation of our system. The implication is that the police must lie to compensate for the defense lies (but neither SHOULD lie). The problem is that the defense does not have to say anything. A not guilty plea is not a lie. Remaining silent is not a lie. Indeed, the implication is that the police only lie because defendants have contempt for the presumption of guilt when the foundation is actually the defense does not have to prove a damn thing.

It used to be the judicial branch did interrogations and this is probably why. *

* "The shift to methods of behavioral lie detection in the 1930s also served the agenda of police management by making it easier for them to counter any effort to break the monopoly police held on the interrogation function. American police leaders had good reason to fear that the interrogation function might be reallocated to another criminal justice agency. Shortly after the Wickersham Commission Report was released, there were calls to transfer the interrogation function from police to the judiciary. Interrogation had, after all, been the exclusive domain of judicial magistrates less than 100 years earlier." Police Interrogation and American Justice by by Richard A. Leo, p 84.

Posted by: George | Feb 4, 2013 9:13:23 AM

arfarf --

Surely the defendant got arrested in something other than an orange jumpsuit, and the jail would still have his original attire. Apart from that, don't defense lawyers keep a set or two of old suits for the defendant to wear in preference to the jumpsuit? Even if they fit poorly, which they probably will, they're bound to make the client appear more appealing than the jumpsuit. If all else fails, how expensive could it be to go down to K Mart or the Salvation Army store to buy the client a sportcoat and tie?

Posted by: Bill Otis | Feb 4, 2013 9:21:52 AM

George --

1. "The implication is that the police must lie to compensate for the defense lies..."

Whose implication? It seems to me that the best "compensation" for defense lies is for the prosecution to tell the truth. Indeed, truth is virtually always the best antidote to lying, in court or outside.

2. It won't do any good to have the judiciary do the questioning, although they're welcome to try as far as I'm concerned. If you want to know why it won't do any good, just go down to court on the day of any sentencing allocution, and see how much luck the judge has trying to get a straight answer out of the defendant.

Posted by: Bill Otis | Feb 4, 2013 9:35:11 AM

Steve Prof --

In Steve Prof | Feb 3, 2013 10:00:26 PM, you said that cooperating government witnesses are the single most frequent batch of liars in federal court. Let's assume arguendo (and only arguendo) that you are correct. It seems to me to raise some questions.

Cooperating witnesses are often (not always, but often) former defendants -- ex-coconspirators, typically -- whose counsel have struck a deal with the government for a reduced sentencing recommendation in exchange for testimony in the government's case.

Does the defense lawyer anticipate that his client will lie during that testimony? Doesn't he have a pretty good idea what the client is going to say (indeed, isn't that one of the main items that gets worked out in the negotiations)?

Does the defense lawyer advise the client to lie in order to please the government? Isn't that unethical? Or, to the contrary, does the defense lawyer advise the client to tell the truth, and tell him the deal the lawyer has arranged with the government does not require, anticipate or invite lying? I would hope so, and think so, but I don't know. That's why I'm asking you. (I would also be interested in any other experienced defense lawyer's answers).

If, as I expect, the deal defense counsel has arranged with the government for the cooperating witness does not contemplate lying, why would the cooperator perjure himself anyway? He already has a deal that requires no such thing.

In other words, the eventual testimony of the cooperator is no surprise, not to the AUSA and not to the cooperator's lawyer; indeed, it's pretty much already been worked out. I find it hard to believe, based on my experience, that the AUSA and the cooperator's lawyer are in some wink-and-nod conspiracy to sponsor perjury. For several reasons, that seems very implausible.

If your experence tells you differently, I'd be interested in hearing about it. Specifics would help.

Posted by: Bill Otis | Feb 4, 2013 10:04:17 AM

Bill -

I think most jails don't give defendants access to their clothes until they're released. In many cases, the defendant's clothes are confiscated by the police because they might contain trace evidence. The forensic lab then cuts holes in the clothes to get samples to test. Even if the defendant has access to the clothes he wore when he was arrested, they will make him look as untrustworthy as the orange jumpsuit if they are vomit-soaked or just plain filthy.

I don't know if lawyers have collections of old suits, shirts, and dress shoes they can recycle. The clothes still have to fit the defendant well enough to make him look like a respectable person and not like a clown. I imagine the lawyers try to buy the defendant's clothes at a thrift store if they can, and otherwise they go someplace inexpensive.

Posted by: arfarf | Feb 4, 2013 12:05:38 PM

Mr. Otis, you have it mostly exactly as I see it. You are right a wink and nod conspiracy does not exist. However, at the time the cooperator proffers , often with agents and no AUSA present, the cooperator embellishes the number and amounts of the historical drug transactions with the target defendant. This is because the more he/she provides the greater the likelihood and greatrer the percentage recomendation for the reduction. I am sure you ate familiar with bathe reported decisions where the cooperators actually purchased information to use for cooperation and did not even know the target they gave the information about. Sometimes, in proffers the agents tell the cooperator that's not enough and we need more like you seeing Mr.X with a handgun while engaged in drug distribution. After, two prior proffers with nary a mention of Mr. X the cooperator has sudden memory enhancement. Yes, he may be impeached with the lack of prior mention but most juries convict anyway. Does the AUSA and defense lawyer know for a fact the cooperator is lying. No. But is there a high probability, yes.

Posted by: Steve Prof | Feb 4, 2013 12:22:25 PM

Well, on my google news this morning was an article about a judge in Texas, being brought before some sort of legal hearing. (the article said it is not a grand jury, and the judge can question witnesses.) Texas has had a serious series of wrongful convictions in murder cases. It did my heart good. This Barry Scheck with the Innocence Project had taken a man named Morton's case. He had been in prison for 25 years, and was released about 18 months ago. The judge is accused of concealing evidence and other mis-deeds. The writer of the article pointed out that prosecutors have immunity.I wish this would happen more often. How sad the Innocence Project can only take murder cases.

Posted by: Dana | Feb 4, 2013 1:44:07 PM

I'd like to take a step back from the acrimony so far (which, to the best of my ability to discern, involves long-running conflicts of which I am not a part) and ask a basic question:

What, if anything, is a prosecutor to do with the knowledge that law enforcement officers can and do lie about the facts surrounding their interactions with criminal defendants?

What should a working prosecutor do with that information? If the answer is to treat all witness accounts with equal skepticism, fine, but that doesn't really seem like enough. I'm genuinely asking for suggestions here.

Posted by: NCProsecutor | Feb 4, 2013 1:52:12 PM

Steve Prof --

Thank you for your answer. It raises additional questions.

1. "However, at the time the cooperator proffers , often with agents and no AUSA present, the cooperator embellishes the number and amounts of the historical drug transactions with the target defendant."

Is defense counsel present? I would have to think so; you can't let your client talk to the agents as part of plea negotiations without being present.

Does defense counsel tell the client, either before or afterward, that he must be truthful, and that there are significant legal risks if he is other than truthful?

Is it not standard practice for the AUSA, when he becomes involved, to tell the cooperator that his testimony must be truthful, neither more or less than that? I can tell you that this was very much standard practice in the EDVA, and this admonition was repeated over and over. My colleagues would not use proffered testimony they thought was inflated or otherwise false, because (1) if it smelled bad to them, it was certain to smell bad to the jury, (2) it could impeach the whole case, even if the rest of it was sound, and (3) sponsoring false testimony is unjust, immoral and illegal.

2. People lie to agents and the cops all the time. But the lies almost always run in the direction of minimizing, not maximizing, their involvement in crime. Now of course, when you're dealing with a liar, you're in no man's land. Which is another reason AUSA's will walk away from a potential witness who zigs and zags about his story. When he starts zigging and zagging on the stand, or even just squirming, the case is toast.

3. Can the defense lawyer for the cooperator ethically allow his client to lie on the stand and thus send an innocent person to jail? If you've done 1500 federal cases, then certainly you must have represented many, perhaps hundreds, of clients who became cooperators. Did they lie on the stand? Or did they, pursuant to what I'm sure were both your and the AUSA's orders, tell the truth?

Posted by: Bill Otis | Feb 4, 2013 2:27:07 PM

NCProsecutor --

"What, if anything, is a prosecutor to do with the knowledge that law enforcement officers can and do lie about the facts surrounding their interactions with criminal defendants?"

Treat each case on its own merits. You have to decide whether each potential government witness (a cop or anyone else) in a given case is being straight. Most of them will be; a very few won't. If you have even a lingering doubt, don't use him. Generally you'll still have a case anyway.

If you don't, that's life. The case gets tossed. Anyone who has been a prosecutor for any length of time (I was) knows that there is no shortage of cases you can make with fully truthful witnesses. Indeed, most prosecutors have more business than they can handle. Perfectly good cases with guilty-as-sin potential defendants are left on the editing room floor because there's just too much to do.

Posted by: Bill Otis | Feb 4, 2013 2:49:20 PM

Well NCP i'd like to answer this one!


"I'd like to take a step back from the acrimony so far (which, to the best of my ability to discern, involves long-running conflicts of which I am not a part) and ask a basic question:

What, if anything, is a prosecutor to do with the knowledge that law enforcement officers can and do lie about the facts surrounding their interactions with criminal defendants?

What should a working prosecutor do with that information? If the answer is to treat all witness accounts with equal skepticism, fine, but that doesn't really seem like enough. I'm genuinely asking for suggestions here."

I would think that any real fair prosecutor would have long long since made sure that everyone know that any fraud or lies on the stand would result in anyone doing it going to jail. No matter who they were or what costume they had on at the time of the crime.

Posted by: rodsmith | Feb 4, 2013 2:59:05 PM

rodsmith --

Spot on. One problem with the system is that not nearly enough people are going to jail for perjury.

Posted by: Bill Otis | Feb 4, 2013 3:13:16 PM

Cops lie more frequently than non-government witnesses.

Posted by: Ken Starr | Feb 4, 2013 6:38:01 PM

"Cops lie more frequently than non-government witnesses."

What are your sources for that claim? N.B., merely hating the cops is not a "source."

Your claim is contradicted, I might add, by Steve Prof | Feb 3, 2013 10:00:26 PM, who ranked law enforcement officers last among his four categories of courtroom liars.

Posted by: Bill Otis | Feb 4, 2013 7:00:15 PM

What is interesting here is the facile dishonesty of Professor Alexander. Whatever the state of the law is with respect to the "orange jumpsuit," it's painfully obvious that a guy in an orange jumpsuit in a credibility battle with cops is a rare occurrence. Why don't we start by getting that right.

Posted by: federalist | Feb 5, 2013 12:11:43 AM

"You don't give me or anyone else on this blog orders to explain anything."

Of course not, there's only room enough for one Billy bully here.

Posted by: -- | Feb 5, 2013 2:14:26 AM

The notion that a person can "bully" self-confident adults on an anonymous site in cyberspace is hilarious.

Posted by: Bill Otis | Feb 5, 2013 3:10:37 AM

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