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P1 First Person: Testilying

Editor’s Note: PoliceOne “First Person” essays are the place where P1 Members and Columnists candidly share their own unique view of the world. This is a platform from which individual officers can share their own personal insights on issues confronting cops today, as well as opinions, observations, and advice on living life behind the thin blue line. This week’s feature is from P1 Columnist Richard L. Davis, who writes in response to several itmes in the mainstream media, as well as a recent column by Joel F. Shults. Do you want to share your own perspective with other P1 Members? Send us an e-mail with your story.

Richard Davis

Richard L. Davis
Police1 Columnist

Those are weaklings who know the truth and uphold it as long as it suits their purpose, and then abandon it. — Blaise Pascal (1623 – 1662)

The August 3, 2009 article by Chief Shults, The moral imperative of loyalty, is a reminder of the difficulty law enforcement officers have upholding morals, ethical values and self worth — concerning our community, our department and our self - while working in a culture where morality, ethics and the truth is too often abused.

My area of expertise is domestic violence and its intersection with the criminal justice system not court proceedings. However, during my career as a law enforcement officer I did work, for a short period, in internal affairs and I have testified hundreds of times in court.

A July 31st 2009 article by Dick Lehr “A new ‘Bright Line Rule’ against lying” on the opinion pages of the Boston Globe caught my attention for a number of reasons. The first and foremost reason is that, sadly I believe some of what Lehr claims is too often the truth. And, too often law enforcement defends officers who deserve no defense.

I can only hope that no one in the Boston Police Department or law enforcement elsewhere will attempt to defend the Boston officer, who in the wake of the Gates/Crowley saga sent a racist/misogynist email to a Boston Globe columnist. You need to read his COMPLETE EMAIL [see first paragraph] before commenting! Even if you do not agree and the officer does not understand that he is spewing racist and misogynist beliefs, you and he must admit his email displays a very troubling combination of condescension, arrogance and ignorance.

Never-the-less, this column is not about race, Professor Gates, or Sergeant Crowley (who in retrospect, now appear to agree they should have behaved differently) or the above officer. I’m writing because I am stunned that Lehr — along with the media and the general public — seem to believe that the issue of testilying (lying or misrepresenting the truth in court) was created by or is a problem only for law enforcement officers. It must be recognized that testilying by a few officers undermines the credibility of all officers. However, the issue of misrepresenting the truth in court was not crafted by nor is it unique to law enforcement.

The Lehr article caught my attention because, similar to the issue of domestic violence, the media and public policy makers seem to think that they can correct an entire system that continues to favor patricians over plebeians by focusing primarily or exclusively on plebeians.

Law enforcement officers are traditionally considered to be the plebeians in the system. Those who can afford it retain lawyers whose specific goal is to prevent their client from being found guilty. These attorneys are not seeking the truth. Criminal justice data clearly documents that those at the lower end of the socioeconomic and/or educational strata of society can not retain expensive lawyers and hence they do not receive equal justice. Many public policy makers claim that we have the world’s best health care and criminal justice system. What they ignore is that claim is only true when you can afford to pay for the best.

Both the media and public policy makers seem to ignore (or forget) the maximum that a fish rots from the head down. Testilying by law enforcement officers does not represent the head of this stinking fish.

This stinking fish is a criminal justice system that, far too often, is an adversarial system that finds most of its prime players, patrician attorneys who view their job as being more concerned with “winning their case” than seeking the truth. Long gone is the belief that both the prosecution and the defense are supposed to be “getting to the truth.”

I agree with the action being taken by Commissioner Davis [no relation] and that there is a need for a new “Bright Line Rule” against lying, misrepresenting the truth, and misleading jurors. However, in the Lehr column and a Boston Globe editorial both seem to ignore the fact that officers are not alone in misrepresenting the truth or misleading jurors. That process is endemic in our court system.

Alan Dershowitz has on many occasions claimed that testilying belongs exclusively to law enforcement. In his New York Times article, Controlling the Cops, Accomplices to Perjury, Dershowitz accuses judges of ignoring common sense, documentary evidence and law enforcement of making up imaginary informers. This from the same man that agreed with or condoned the defense of O.J. Simpson where a “Dream Team” of attorneys claimed O.J. was an innocent man set up by law enforcement and; the same man who told the jurors that the real offenders in this classic domestic violence homicide were most likely members of a drug deal gone wrong.

What has long been an open secret between prosecutors and defense attorneys is best summed up by retired Judge Harold J. Rothwax in his book, Guilty: The Collapse of Criminal Justice. In the chapter titled “Anything But The Truth,”on pages 18 and 19 Rothwax writes:

Our system is a carefully crafted maze, constructed of elaborate and impenetrable barriers to the truth. Even when the evidence against the accused is as clear as a ringing bell, lawyers will grasp at anything to fog the issues and mask the terrible facts.

Hence the bright light of truth is often replaced by misrepresentation or exclusion of facts by the prosecution and a fog of confusion and misdirection by defense attorneys. Attorneys not law enforcement have crafted this system. Many attorneys, similar to all the members of the Dream Team, seem to have no problem with bending or ignoring the truth until their goal is achieved. And once something is bent often enough it is a lot easier to break.

Lehr, the Boston Globe, and Davis are all correct and change is needed. I wish Commissioner Davis luck in achieving his ‘Bright Line Rule” for law enforcement. However, Lehr and the Globe seem unwilling or unable to understand that it is the entire criminal justice system and not just law enforcement that needs to formulate a new, “Bright Line Rule,” that seeks the truth.

Until everyone changes, the truth will not always be forthcoming.

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