Last week the New York Times picked up on one of my favorite subjects, the innocence problem (seen here) and I couldn’t possibly help but comment. Not because the reporting was insightful, mind you, but because—as is more and more common in the news—it ain’t NEWS. I was all ready to write a scathing article about how badly they’d missed the mark because defense attorneys in academia and practice have been trying to tackle the issue for at least 30 years but then I saw this blog piece which made my point; and kinda stole my thunder.
In some jurisdictions over 99% of charges are resolved by a guilty plea. That’s the statistic that makes a lot of us pretty certain that people are pleading guilty to crimes they didn’t commit. I like to think that I do my job correctly 99% of the time, but I’m pretty sure I’m the only one who’s that good and I’m certain that less than 99% of police get it right 99% of the time. Lots and lots of papers have been written about the innocence problem: some people try to argue that innocent people aren’t pleading guilty, the more reasonable papers explore why it might be happening, and there are even suggestions for how to fix it and more skeptical papers about how fixing the problem would be too light on crime and, therefore, politically unfeasible.
One aspect that no one seems to discuss much is that trial is a really valuable thing. Not only is it a constitutional right and all that mumbo jumbo, but it’s a very effective way to train police; to help them get closer to that 99% mark. Criminal defense attorneys spend a lot of time decrying the police for their dishonesty in court, but it goes a lot further than that. Police need to be trained to really pay attention to what’s happening and take good notes on it right away so that they have the opportunity to be honest about what they observed rather than trying to recollect something a few weeks after it happened and pick the story that makes them out to be a hero.
Now I’m sure a lot of you are thinking that that’s what police academy is for. I’m sure they try, but I can tell you from personal experience that normal police training is not getting the job done.
Just last week I encountered an officer that could use some good on-the-job training. His story was silly and his actions were anything but reasonable. He told me at one point that a Ford F-150 had driven right over a median that is raised four feet from the rest of the road. Did I believe him? Of course not (I happen to know that those medians aren’t raised any higher than a sidewalk for starters). The suggestion was ludicrous and obviously untrue: even putting aside the fact that the officer’s account disregards the laws of physics. If something similar to what he “observed” had happened there would be a lot of physical evidence to back it up, but the truck that was involved was unscathed as was the sidewalk-height raised median.
It gets better. After this truck somehow jumped a four foot embankment the driver was stopped and the officer spoke to the occupants. One was highly intoxicated and emotional: screaming and crying and flailing about. The other was the driver who took and passed several roadside sobriety tests and didn’t talk much. The officer decided the sober driver was lying about everything and the hysterical drunk was being completely forthright and honest. The driver said he understood he wasn’t supposed to make a U-Turn (the cop didn’t ask about the median thing), but that he had done it because his hysterical passenger was grabbing the wheel and he was approaching a very busy intersection, but the cop didn’t like that story and chose not to believe it. Instead he chose to charge the driver with a criminal offense. In short, this young cop either misremembered everything he was supposed to observe and report or he just lied about it to try to distract from the fact that he took the story of the hysterical drunk (who refused to testify about the events) at face value and disregarded the simple and reasonable explanation of the sober driver. Either way, that cop needs additional training.
I think the best training he could have been made to endure is the Blitz Legal/Patrick Woolley style of cross examination that is designed to make stupid foolish lies appear to be stupid and foolish. Had a decent trial attorney had the opportunity to cross examine this officer he would probably react differently the next time a truck uses its hyperboost to jump over a wall and a drunken psychotic screams about unfounded accusations. As a former law student, I firmly believe that public embarrassment is a strong motivator and a quick way to teach a lasting lesson. After saying foolish things once and being called out for it in a public forum, one is much less likely to say foolish things in the future.
Unfortunately for me, and for that cop, and for everyone who has to deal with that cop in the future, this case didn’t make it to trial. The unfettered discretion that prosecutors have (that the NYT is suddenly so concerned about) can be used both ways. Rather than ratcheting up the charges or something—which would have encouraged the driver to go to trial—the prosecutor gave the driver a deal that was so light he couldn’t refuse it. Did the driver plead guilty to something he wasn’t guilty of? Probably, but it was worth it for him. The real tragedy I see here is that, because prosecutors tend to take cops’ statements at face value, the cop in this case didn’t get the on-the-job training that he desperately needs: he was simply patted on the back for his good work and service. One of these days, I’m sure an experienced attorney will train that young cop up a little, but until then he is going to treat citizens the same way he treated that driver, because he has no incentive to do otherwise.