If It's Good Enough For the Fox ...
I saw another of the law’s dismal and predictable set pieces last week. As always, a trial court blessed the mess and called it justice. When will the courts begin to hold police officers to the same standards to which other witnesses are held?
A client was arrested and charged with possession of narcotics with the intent to sell. Officers handcuffed him, took him to a police station, and then started questioning him. At the end of several hours, the client signed his life away, writing a confession that led the officers to get a search warrant for another location where drugs and cash were stored.
The client is no dummy. He had been arrested before. He had done prison time before. At the time of his arrest, he was a decent jailhouse lawyer with a keen instinct for survival. It strains credulity that an experienced veteran of the drug wars would sit down and make nice with a couple of cops seeking to send him back to prison.
The client contends that he asked repeatedly for a lawyer. He testified last week that he was never read his rights. He did not initial the pre-printed waiver of rights form the state offered into evidence. He did not sign the confession that bore a signature the police said belonged to him.
Two versions of events collided head on: An inmate testified at a habeas corpus proceeding serving a 14-year-sentence and hoping for less. A police officer also took the stand and told the judge he had no notes of the meeting, no recordings were taken of what took place. Indeed, the officer’s partner, who was also at the interrogation, did not even testify. The cop said the client was read his rights and signed the statement.
Who do you think the judge chose to believe? Which side do you think judges routinely believe in confrontations of this sort?
I’ve lost track of the number of times I’ve grilled an officer on the failure to record custodial interrogations. Their answers are all a variation on the same stupid theme: We are not required to tape these interviews. There is no policy requiring the taping of the interview. It is not our custom or practice to tape interviews. I don’t know why this policy is in place. I did not set the policy. I don’t know who set it. It is just the way we have always done things.
Judges consume this nonsense as though it were the nectar of the gods.
Last week I asked the officer if he could imagine a situation in which he thought it would be appropriate to tape an interrogation. Much to my surprise, he told me he could. The officer noted that internal affairs interviews of police officers are routinely taped.
Do the officers know something we don’t know? Perhaps how easy it is to lie or misrepresent what sorts of promises were made before a written statement is taken? Or what pressures were brought to bear on a witness? Or perhaps what trickery was engaged in to get the words necessary to convict a man?
One would think a trial court inspired by a robust sense of fairness would be outraged by this double standard. When the foxes attack one another, they are smart enough to require a complete record. But when the foxes line up a chicken, no protections are necessary.
But of course, the trial court was not troubled by this tawdry piece of hypocrisy. Law enforcement is supposed to win hearings of this sort. Imagine the chaos if we released people from prison because of police misconduct and lies. One of the great bedtime stories we tell juries and ourselves is that once upon a time, there was a good police officer, who met a bad, bad man.
Judges have been slapped silly and forced to open their eyes about bad eye witness testimony and about the use of confidential informants. I cannot fathom why jurists don’t require recordings of interrogations. Nothing explains this wilfull blindness other than a craven desire to want to avoid the truth.
I will end by repeating a question the trial court found argumentative when I posed it to the police officer last week: Why is recording an interview required when police question one another, but not when they question a citizen? Someone answer that question, please.
Reprinted courtesy of Connecticut Law Tribune.