February 20, 2000


Lying to Get the Bad Guys
By SCOTT TUROW
CHICAGO -- The Los Angeles County district attorney's office said last week
that the city's metastasizing police scandal was likely to result in the
overturning of hundreds of criminal convictions. Apparently a number of
officers in the city's Rampart District planted evidence and perjured
themselves to help get convictions; a few even became criminals themselves,
dealing drugs and shooting competing dealers.

First Rodney King, then O. J. Simpson, now this. You don't need a degree in
criminal science to know that something is wrong in Los Angeles.

Yet those of us in other places should not be too smug. Defense lawyers and
even some prosecutors in most big cities will say that police officers
frequently lie under oath. What happened in L.A. is extreme -- very rarely do
officers commit perjury to cover up their own criminal acts. But law
enforcement officers are sometimes moved to lie, feeling they've been driven
to do so by the complex requirements of the criminal justice system.

Years ago, the first case I tried as a federal prosecutor nearly unraveled
because of testimony a Secret Service agent gave the grand jury. Parroting
the case reports, he described watching his colleagues arrest the defendants
for selling a stolen Treasury check. The problem? Later, preparing for trial,
I learned that the agent hadn't been working on the day in question. When I
brought that to light, the agent acknowledged his error but insisted that he
had sincerely believed that he had been present at the arrest.

The judge accepted that and didn't throw out the indictment. But the agent's
testimony underlines a fundamental problem for all law officers.

The police are expected to testify about events that have taken place months
and even years earlier; they may have handled hundreds of other matters in
the interim. Because case reports are inadmissible to support their
testimony, the officers are expected to offer a crystalline recollection of
matters that in all likelihood they can barely recall. It should be apparent
to everyone involved -- prosecutors, the judge, the jury -- that this is,
technically speaking, perjury. But nobody seems to regard an officer's lying
in service to the truth as a grave social ill.

The problem is that because cops are professional witnesses, the system makes
it easy for the few bad ones to develop considerable aplomb as they disserve
the truth for their own ends. Tamar Toister, a public defender who
represented a gang member who was shot and framed by Rampart District police
in L.A., called the officers "the slickest, most polished witnesses" she had
ever encountered.


Her remark reminded me of several officers I called before a federal grand
jury long ago in a beating investigation. One by one, they calmly denied
events that several medical experts said were firmly established by the
physical evidence. I was infuriated at first, but I eventually developed a
sort of aesthetic appreciation of their performances. Calm to the point of
appearing limp, soft-spoken and unflappable, the cops convinced the grand
jurors of their innocence, against all logic.

Most cases of police perjury are not related to corruption or
self-protection. Police officers usually just want to convict the guilty. A
friend of mine who has retired from the force refers to this as "tightening
up a case," and it has its own compelling logic. A cop who has patrolled an
area for a while has seen and heard enough to recognize the local bad actor.
Why on earth wait to catch him in the act? Hassle him, let him know you're
watching, stop him on sight and frisk him, and when you inevitably find dope
or a gun in his clothing, testify that you saw a telltale bulge or a glassine
envelope peeking from his pocket.

Cops who "tighten up" assume that they know the difference between lying to
get the guilty and framing the innocent (and in my experience, most of them
do). But the line between the two often wears perilously thin.


I once represented one of two men who had been convicted of a celebrated
murder they didn't commit. Eventually, my client and the other man were
freed, and four police officers and three prosecutors were indicted on
charges of concocting the case. (The officers and prosecutors were later
acquitted.) When those indictments came down, another police officer from the
area surprised me with his selective indignation over what the officers were
alleged to have done: Framing someone like my client for burglary, he said,
would be one thing, since the man was reputed to be a thief; framing him for
murder, however, would be going too far.


The Los Angeles scandal lies only a couple of stops further down the slippery
slope. Consider what a former police official in Los Angeles recently said
about those framed by Rampart officers: "We're talking about people who
belonged in prison, just not for those reasons." He added, "The police may
have stepped over the line, but they had to be tough with these people --
let's be honest."

It is no platitude to say that most cops are honest, and there are many
departments that refuse to turn a blind eye to what some believe the system
compels. The F.B.I. in most places and the Illinois State Police, for
example, have fostered a culture of severe disapproval for law officers'
stretching the truth.

Yet there is a fundamental tension between the law on one hand and the police
on the other. Cops tend to judge themselves according to one criterion, their
success in performing the job we demand of them: protecting us. The law wants
more -- it wants the cops to catch bad guys, all right, but it wants them to
do it fairly, with convincing evidence that they have gathered while
respecting the minimal standards of decency we call "rights."

Thus it falls to the courts and lawyers to insist on strict adherence to all
those rules that the police often regard as a pesky hindrance. And
unfortunately, some prosecutors and judges too often seem willing to look the
other way when an officer's testimony just doesn't add up.

I first realized that the L.A.P.D. was in deep trouble during an early
hearing in the O. J. Simpson case. Detectives testified that they had gone
over a wall and into Mr. Simpson's house without a search warrant because
they had been afraid that Mr. Simpson and others were in danger. Anyone with
experience in the criminal justice system would have strongly suspected that
the officers' most likely motive had been a zeal to question Mr. Simpson
before he hired a lawyer. What shocked me was not that the cops offered this
dubious justification, but that the Los Angeles County prosecutors had put
them on the stand -- on national television, no less -- to testify to it, and
that the judge accepted the officers' statements as admissible.

That is why I'm not confident that the Los Angeles district attorney, Gil
Garcetti, can conduct a fully independent investigation of the misdeeds of
the cops there. I was not comforted when the city decided last week to let
the police department and prosecutors' office continue their investigations
with no outside oversight.


There are prosecutors -- New York City's Robert Morgenthau is usually held up
as the example -- who are constantly at odds with their police departments
because of their refusal to tolerate breaking the rules. Mr. Garcetti has yet
to prove he belongs in that group.

Prosecutors anywhere who are willing to let police officers do whatever they
have to in order to convict may soon find themselves dealing with cops who do
whatever they want.


Scott Turow is the author of "Presumed Innocent" and "Personal Injuries."