One of the final chapters in the Tulia scandal was written two weeks ago when undercover police officer Tom Coleman was convicted of perjury after a sting that sent more than three dozen black residents of the small Texas panhandle town to prison. In a case that became a national example of police misconduct, 46 people, most of them black, were arrested on drug sales charges solely on the basis of Coleman's uncorroborated testimony. Of Coleman's victims, 38 were either convicted or pled guilty and were sentenced to prison.
The 35 Tulia convicts who remained in prison by the time the state of Texas launched an investigation of Coleman's work were pardoned by Gov. Rick Perry, and now it is Coleman, a troubled, itinerant police officer, who faces 10 years under the tender mercies of Texas probation officers, with a prison sentence awaiting if he messes up... Meanwhile, the counties and cities that participated in the Panhandle Drug Task Force, Coleman's employer, have been ordered to pony up $6 million to his victims.
While the usual suspects were quick to crow that Coleman's conviction showed that "the system works," members of the defense bar, judges, former prosecutors, and academics argue persuasively that Coleman's lying was not an aberration. Instead, they say, it is but one particularly egregious example of perjury by police, a practice so widespread it has even developed a cutesy nickname, "testilying." But the reality is anything but cute, with an unknown number of innocent people sent to prison because the police lied under oath.
By the very nature of the offense, numbers on the extent of police perjury are impossible to come by. The topic itself rarely makes the media spotlight; in fact, the primary research resources available on police perjury date from either the OJ Simpson murder case, where Detective Mark Fuhrman was accused of lying on the stand, or the unsuccessful effort to impeach President Clinton, when the broader topic of perjury was at hand.
But according to conservative US 9th Circuit Court of Appeals Judge Alex Kozinski, police perjury and prosecutorial misconduct to gain convictions is "an open secret long shared by prosecutors, defense attorneys, and judges." Kozinski's remarks, published in the Los Angeles Times, came during a discussion of another highly-publicized police perjury scandal, the Los Angeles Police Department's Ramparts debacle. In that case, police at the Ramparts precinct drug squad planted drugs on suspects, stole drugs, and even shot one man, then threw down a gun and testified he had attacked them. The man, who was paralyzed in the wanton attack, was sentenced to 23 years in prison based on the false testimony of LAPD officers.
In the wake of the OJ Simpson case, University of Florida law professor Christopher Slobogin conducted an exhaustive survey of the literature on police perjury. His findings were shocking: "Whether it is conjecture by individual observers, a survey of criminal attorneys, or a more sophisticated study, the existing literature demonstrates a widespread belief that testilying is a frequent occurrence," Slobogin found. In one survey cited by Slobogin, defense attorneys, prosecutors, and judges estimated that police perjury occurs in between 20% and 50% of Fourth Amendment suppression hearings, which result when defense attorneys attempt to argue that police had no probable cause to stop or search a suspect.
Veteran police observer Jerome Skolnick called police perjury of this sort "systematic." Even prosecutors -- or at least former prosecutors -- Slobogin noted, use terms like "routine," "commonplace," and "prevalent" to describe the scope of the practice. "Few knowledgeable persons are willing to say that police perjury about investigative matters is sporadic or rare, except perhaps the police," Slobogin concluded, "and even many of them believe it is common enough to merit a label all its own."
The Mollen Commission, established in New York City in the early 1990s in the wake of police scandals there, reached a similar conclusion. "Officers reported a litany of manufactured tales," its report noted. "For example, when officers unlawfully stop and search a vehicle because they believe it contains drugs or guns, officers will falsely claim in police reports and under oath that the car ran a red light (or committed some other traffic violation) and that they subsequently saw contraband in the car in plain view. To conceal an unlawful search of an individual who officers believe is carrying drugs or a gun, they will falsely assert that they saw a bulge in the person's pocket or saw drugs and money changing hands. To justify unlawfully entering an apartment where officers believe narcotics or cash can be found, they pretend to have information from an unidentified civilian informant or claim they saw the drugs in plain view after responding to the premises on a radio run. To arrest people they suspect are guilty of dealing drugs, they falsely assert that the defendants had drugs in their possession when, in fact, the drugs were found elsewhere where the officers had no lawful right to be."
In yet another study cited by Slobogin, one conducted in Chicago by criminologist Myron Orfield and notable because it relied on the views of prosecutors and judges as well as defense attorneys, Orfield found that 52% believed that "the prosecutor knows or has reason to know" that police lied at evidence suppression hearings "at least half of the time." Among prosecutors alone, 89% said prosecutors had knowledge of such perjury "at least some of the time."
Slobogin found such figures "stunning," but they hardly raised an eyebrow among former police officers, former prosecutors, and defense attorneys consulted by DRCNet. "The practice is not uncommon," said Jack King, spokesman for the National Association of Criminal Defense Lawyers. "Nobody knows how widespread it really is because prosecutors fight at all costs to defend convictions."
"It happens, and it happens at all stages in the process," said former Cook County, IL, prosecutor Jim Gierach. "To give just one example, when police would come to get a warrant on a drug case, assistant DAs would review those warrants to ensure no necessary facts were missing, particularly about the reliability of informants and what cops had seen with their own eyes. If the warrant application was lacking, they would tell the officer what information was needed, but it was all boilerplate, it was pulled out of the thin air," he told DRCNet.
Gierach has since become a defense attorney and, driven by disgust with the war on drugs, a member of Law Enforcment Against Prohibition (). "As a defense lawyer, I would see it all the time. In one case, I had a client who went inside a drug house and bought drugs while police were surveilling its exterior. My guy left, but was pulled over and searched, and they found the drugs. But when the police wrote up their report, they wrote that my guy bought the drugs outside in plain view in full daylight. They had to do that because otherwise they would have had no probable cause to stop my guy. These coppers lie in order to try to get the guys they 'know' are guilty."
Police enforcing the drug laws are more apt to engage in perjury or other fabrications because of the very nature of the crime: Because drug sales are free transactions between consenting individuals, there is no aggrieved party who will go to the police to seek justice for a wrongdoing against him. Thus, police need to come up with the evidence of a crime themselves or through informers, who are either paid to tell the police what they want to hear or scared into doing so.
"The officer himself becomes the complainant," said NACDL's King. "Often there are no other witnesses other than the accused and the undercover officer." And the lies can happen for the most mundane of reasons, he suggested. "Take the Tulia case. It's reasonable to conclude that Tom Coleman, the undercover officer, lied because he was incompetent and needed to lie if he wanted to continue to draw a paycheck. The same thing has happened in other cases. In Oklahoma, there was a state lab technician who repeatedly testified that she had tested drugs and they were indeed the drugs police said they were. But she was never trained to run a gas chromatography-mass spectrometry test, so she just lied on the stand. And once she had perjured herself, she could never go back. She kept on perjuring herself, and people kept on being convicted based at least in part of her testimony," King related. That lab examiner was not caught out by judges or prosecutors, but by dedicated defense attorneys.
"Police lying is most common in drug units," said Virginia defense attorney Marvin Miller, co-chair of NACDL's Committee on Police and Government Misconduct. "I once had a court of appeals judge tell me in an en banc oral argument that police and judges have to bend the rules or they won't get the drug dealers off the street. I'll give that judge credit -- at least he was honest. But then the presiding judge told him to be quiet," Miller laughed morosely. "I think it is more widespread among departments that have long-term drug unit assignments than in departments where officers get periodically rotated out. But when you're a drug cop for year after year, you get jaded and cynical. There are a lot of great cops out there, but there is a real problem with these specialized units. It's easy for them to get away with perjuring themselves, and the public likes to get convictions. Also, neither prosecutors nor judges look at those cases with a skeptical eye."
Not everyone consulted by DRCNet agreed that the practice was widespread. Another LEAP member, former St. Augustine, FL, County Sheriff Jerry Cameron said testilying was "rare" in his experience. "A guy that perjures himself in the circles I was in is generally looked down upon," he said. But looking the other way at shaky informant testimony was more common, he said. "Sometimes when you get the testimony of a confidential informant, you may suspicious of how accurate it is, but you end up presenting it as the justification for a search warrant," Cameron explained. "But that's not perjury."
Still, Cameron conceded, his reputation as tough-nosed on such issues may have led to things going on behind his back. "I constantly told people that our integrity is our most important asset. Consequently, there may have been things that I wasn't told because people knew where I stood."
While somewhere out there must be prosecutors or police officers who deny that police perjury exists, the consensus, not only of defense attorneys and anti-prohibitionist ex-cops, but also, as noted above, of prosecutors, judges, and legal scholars, is that the practice is so widespread that Drug War Chronicle was unable to find any by press time. Observers also find the practice reprehensible, corrosive of the criminal justice system, and probably unstoppable in the current political climate.
"Every single time a police officer witness lies under oath, it is a blow to the criminal justice system," said King. "The process is supposed to be a search for the truth -- not a shortcut to a conviction -- and the burden of proof is on the state. You can't have a search for the truth when the state puts on witnesses who lie for the state. And what makes it even worse is that prosecutors always allow police caught in the act to plead to a lesser offense, like making a false statement to an investigator. When it's one of their own, prosecutors suddenly grow softhearted. But they have no problem sending plenty of questionably guilty people to prison."
"Prosecutors very rarely castigate a police officer for testimony that has apparent falsehoods in it," agreed Miller. "These days, we have less judicial scrutiny of prosecutors and police than at any time for decades. We have gone back to the bad old days. And it will be difficult to change, he said. "It is a culture of lying. That was the case with the Ramparts scandal in Los Angeles; they sent innocent people to prison for years until that broke open. It was the same thing with the El Rukn scandal in Chicago. The cops there got caught, but it wasn't because of judicial or prosecutorial scrutiny," he said.
"It's basically your word against the cops," Miller continued. "We are supposed to have a system of checks and balances, but the system is out of balance. We do not have the type of criminal justice system we pretend to. It is neither impartial nor balanced. And the biggest problem is the war on drugs. Harsh sentences don't work. Mandatory minimums don't work. We need to take a fresh look at what we're doing and try to find out what really works and what doesn't. What is the best way to deal with drugs? We have never tried that. If you say anything but harsher sentences and more enforcement, you're accused of being soft on crime."
"It is the money of prohibition that corrupts these police officers and prosecutors and judges and people at every level of the system," said Gierach. "The penalties are so severe. We have kids who get arrested and the cops tell them they'll go away forever unless they rat on someone. They're telling these kids to forget about the Golden Rule, to sacrifice their neighbor to save themselves, to forget what we think about as morality. And then they wonder why these kids have no values, no human decency. Whether it's a scared kid or a drug cop or judge or prosecutor, this drug war strips them all of values and morality. It's the biggest corrupting influence in this country, and I'm just talking about the moral corruption -- we don't even need to get into the financial corruption here."
Part of the problem is a judiciary either disinterested in the truth or cowed by conservative politicians, said Miller. But there are also institutional interests involved. "Police and prosecutors have a vested interest in maintaining the status quo. Look at the long struggle over racial profiling in New Jersey. They fought tooth and nail to deny it was occurring for years. And it wasn't just police, but prosecutors, politicians, the entire system. It's the same thing with prosecutors who don't want to do a DNA test to prove or disprove somebody's innocence. They are more interesting in maintaining their turf than in justice."
Perhaps "the system worked" with the conviction of Tom Coleman. But it didn't work until dozens of innocent people had been arrested, jailed, and sent to prison for years and a major national campaign had aired the issue in every major media outlet in the country. And it didn't work because of judicial, prosecutorial, or political oversight over cops run amok. And, the available evidence suggests, it is not working across the land, where people who vow to uphold their oath of office routinely violate it, primarily in the name of prosecuting the drug war. How many innocents are behind bars because of lying cops? And why does nobody care?