Editorial:
Reasonable
Standards
5/27/05
David Borden, Executive Director, [email protected]
One need not believe that "all cops are liars" or anything like that to take this view, and I don't believe that. There is no serious question, however, that a good number of police officers do perjure themselves from time to time but are rarely punished. Joseph McNamara, a former police chief in San Jose and Kansas City, has been speaking and writing on that topic for at least 10 years. At a conference in Santa Monica in 1995, McNamara wrapped up a speech saying "all kinds of police misconduct has occurred, the most serious which is the cops who think of themselves as being innocent good guys are routinely violating the Fourth Amendment, routinely committing perjury." McNamara reasoned based on the data that it must happen literally hundreds of thousands of times a year in drug cases alone. The Tulia incarcerations -- or "lynchings" as I've likened them in previous editorials -- show that perjury is not limited to mere admissibility issues like search legality, but actually at times is used to frame innocent people. Even if the perjury were only known to have occurred with respect to the circumstances of a search, though, this would still fundamentally place an officer's credibility in question overall. And McNamara is by no means the only law enforcement observer to claim that police perjury happens frequently. Indeed, the practice is seen as so routine that it even has been given its own name -- "testi-lying" -- as reports such as that of New York City's Mollen Commission have revealed. Again, this does not imply that all police officers commit felony perjury. (Yes, it's a felony.) But if it happens routinely, then absent corroborating evidence of officers' testimony, in my opinion there must be reasonable doubt -- it's an inescapable statistical conclusion. And since jurors faced with a situation of reasonable doubt have an obligation to acquit, what then is the purpose of the trial itself? How can the expense and trauma to a defendant of being criminally prosecuted be justified, when the evidence supplied by the government to a judge cannot even in theory suffice to meet the legal standard needed for a jury to properly convict? How can the risk that a jury will vote to convict despite there being reasonable doubt be ethically abided -- if a judge based on statistics and the nature of the evidence knows in advance that acquittal due to reasonable doubt is the correct and legally proper outcome? Were I to sit on a jury, and were the only evidence against a defendant to consist of police officer's testimony, I would consider myself obligated to vote to acquit. Even if based on my instinct I believed that the officer was being truthful, that obligation would not change. Because there is a standard of proof beyond a reasonable doubt before a jury should convict, and instinct by itself does not meet that standard. Proof means proof, and doubt is about facts, not feelings. (All of which means I am not likely to ever sit on a jury, of course -- when the DA reads about where I work the questions tend to get asked.) If Rep. Jackson Lee's bill becomes law, it will be one step toward restoring ethics and morality to the system. Perhaps through fostering debate it will help the situation even if not. Though some in the meantime will doubtless attempt to smear Rep. Jackson Lee and her cosponsors as "anti-cop" or "pro-criminal," it's important to remember that many police officers are themselves aware of and concerned about these problems. Rep. Jackson Lee deserves congratulations for her realism about the problem and its logical ramifications. Law or no law, the truth about drug war perjury will come out and will influence more and more juries throughout the nation. They will make it law -- even if Congress won't.
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