Code of Silence, Part 3 of 3

I’ve been remiss in not writing the promised Part 3 of my series on Code of Silence.  Whether the Code exists or doesn’t in your agency, the potential is prevalent in all police agencies. Are there some things you should look for that are indicators that the Code is alive and well in your agency?

Many years ago I was testifying in Boston Federal Court.  An issue was whether the police agency had a Code of Silence and was this a moving force causing the injury to a suspect.  The judge was unsure whether he would allow me to testify.  So he conducted a voir dire hearing asking me if I had some methodology to determine the existence of the Code of Silence.  Since that time I’ve enhanced those points of my methodology.  Let’s look at some of those points.

Is what other officers say they were doing at the critical moment contrary to reasonable practices?  An example would be the booking sergeant saying he heard some form of scuffle, but he was busy doing paperwork.  You and I know that if you heard something like that you’d bust your ass to get out there and assist your fellow officers.

Should the incident have alerted a reasonable officer and focused attention to the incident?  At the end of a pursuit when the suspect stops or crashes, the focus should be on the suspect and his capture.  But so often this is the time when some officer may allow the adrenaline of the chase to obscure his decision to use force.  This is the time for the noninvolved officer to restrain him; not say his attention was diverted by some noise from another direction away from the incident.  Looking the other way is not reasonable!

Was the misconduct so obvious that an officer would have had to shut his/her eyes or ears not to become aware of it?  The prisoner torture of suspects by Detective Burge in the basement of Precinct 2 in Chicago is something everyone in the station should have been aware of.  Yet, no one came forward until years of wrongful convictions were reversed.

Were officers in a position to have seen or heard what occurred but deny any knowledge?  An incident like the infamous Rodney King beating is a good example.  It was amazing how many of the 17 officers ringing the incident didn’t see anything or couldn’t recall what occurred.  Remember many officers may avoid answering the questions with any degree of specificity, rather than deny!

The development of cliques can cause insulation and protection.  We don’t have to look far to see this influence of officers working close together causing them to clam up and either engage in misconduct or look the other way.  Special enforcement units recently in Chicago, Philadelphia, Atlanta, Tulsa and Los Angeles are recent examples.  It can also happen when shift work becomes cast in concrete.  Fire departments are a prime example of this where teams work together for years.

The retaliation of officers who do come forward.  In the New Jersey State Police a group calling themselves the “Lords of Discipline” preyed on troopers who came forward with information about the agency profiling motorists.  The probationary Officer Batt, in 2000, was the person who first brought forth information about the misconduct of four officers calling themselves the “Riders.”  His information was what caused Oakland to be placed under a consent decree and now faces the possibility of the Federal Court putting the agency under receivership; something we haven’t seen before.  Yet, Officer Batt, the young officer who did the right thing, faced so much retaliation that the Chief had to get him a job with another police agency.  Unfortunately, these are not isolated incidents!

And lastly, we have something I call the Blue Shield.  These are things police agencies do that insulate officers who engage in misconduct from being held accountable.  When agencies purposefully conduct inadequate investigations, fail to discipline for misconduct, and fail to hold officers accountable when they give false and misleading statement during administrative investigations is a common practice of an agency doing the wrong thing.  Some agencies accept the lack of a criminal charge for the officer’s act of misconduct as an excuse to not conduct the administrative investigation.  Most agencies salivate when a malignant officer elects to leave the agency rather than face discipline and the failure to hold the officer accountable allows the officer the ability to just go to work for some other agency.  And, lastly, the lack of transparency by agencies regarding administrative investigations and employee discipline.  This secrecy erodes public trust and allows officers who are disciplined to put their own spin on it rather than have their case used as an example to others in the agency.

All I can leave you with is this is a continuing pursuit you must engage in to develop a professional police agency.  This pursuit is essential to create an environment where every member of our agency can be proud of the service provided.  This environment allows employees to do the right thing with pride and a true belief that they will be supported and honored.  I always end my class on the Code of Silence with a question, “Does anyone in the class know of an officer who has received the Medal of Valor for blowing the whistle on police corruption?”  I’m still waiting for someone to give me an example.

Is it okay for cops to lie?

Is it okay for cops to lie?  Many years ago when Bill Bratton was the head of the NYPD he used the phrase “testilying” to describe when officers bend the truth when testifying.  We’ve come a long way since then.  Today most Chiefs and Sheriffs and their agencies take the stand that “if an officer lies, he dies.”  Lying in any context is no longer acceptable and normally results in termination.  Even if lying or “bending the truth” is just to get the bad guys off the streets under the misguided concept of “noble cause.”  Lying is lying!

But what has caused this newfound philosophy in law enforcement?  The guiding U.S. Supreme Court cases of Brady and Giglio are old cases decided in 1963 and 1973 respectively.  These cases said that any prosecutor had to turn over “exculpatory evidence” and “credibility evidence” to the criminal defense attorney.  In other words, any evidence that might help the defendant or caste doubt on the credibility of any witness the prosecution uses during the trial had to be disclosed if the prosecutor knew about it.

These cases, however, had minimal effect on law enforcement until the mid 1990s.  What changed?  Really there were five things.

First, in 1995, the Supreme Court decided the case of Kyles v. Whitley.  This case changed the requirement on the prosecutor.  In the prior cases the prosecutor was held accountable if s/he knew of the exculpatory evidence.  Kyles now required the prosecutor to make an affirmative search for this evidence and turn it over to the defense.  As a consequence it began with Federal prosecutors who now requested “credibility/Giglio” material on any of our officers who were scheduled to be witnesses.  Today most prosecutors make this request.

During this same period of time the Innocence Project got started.  My friends Barry Scheck and Peter Neufeld attacked the prosecution tactics used in capital cases such as homicides and rapes.  Most of these cases used DNA and other evidence that was hidden from the criminal defense by prosecutors and police.  The cases pretty much say the obligation is on the State and that means both the prosecutor and the police.

A third issue was the development of what has been termed “Brady Bad Boy” lists.  Prosecutors have put officers on this list and generally don’t present cases when they are confronted with an officer who has a “credibility” problem.  Most of the time it is founded on evidence that the officer has been disciplined for lying or false reporting.  If the prosecutor has this list, so does the public defender and the criminal defense attorney.  If an officer can’t testify in court, what good is s/he?

While law enforcement has adopted a very strict stance on lying, the courts and arbitrators aren’t as firm.  It seems that courts, arbitrators and civil service bodies consider some as “big lies” and others as “little lies.”  Big lies are those associated with an officer’s testimonial record; arrest reports, probable cause affidavits for warrants, and court testimony.  Little lies concern false statements on agency procedural matters such as sick usage, damage to police vehicles, or failure to follow some internal policy.  Of course this presents an agency with the problem of what to do with the officer who it has declared as a liar, has been terminated, and yet now has been returned to the agency by some decision of these external bodies.

The fifth issue has surfaced only in the last few years.  Officers are now being criminally prosecuted for false reports or testimony.  In the past the prosecutor might simply dismiss the case and let the agency deal with the misconduct administratively.  A lot of this outcome has surfaced with the proliferation of surveillance cameras.  These images may refute the version officers’ use official reports or during testimony.

Now what does this mean for law enforcement?  My next blog report will discuss what we must do and how to develop reasonable policy to cover this issue.