Testilying: Cops Are Liars Who Get Away with Perjury
Feb 3 2013
You are a police officer, patrolling your route in East New York. You see someone walking down the street; they are carrying a bag. You are bored and not really doing anything else and have been thinking for a while that you’d like to get noticed by your boss, make him proud. So you stop this guy, just to see what will happen.
Maybe he starts to get a little nervous and you start thinking that he’s actually up to something. Why would he be nervous just talking to you? So you take his bag and open it up despite his protests, and maybe there are 15 kilos of cocaine inside and $50,000 in cash. This is suddenly a heck of an arrest.
You call into your sergeant, and he arrives, asking you how it was that you came to make this great collar. You tell him, and he waits quietly until you are through. He tells you there is just one problem: The search was illegal, you violated the guy’s rights, and you cannot bring this story to the district attorney’s office to prosecute the arrest.
You and the sergeant have one legal option: Take the drugs and cash into custody, and let the guy walk. But it’s a big arrest, and you don’t want to let him go. So Sarge leads you through a new scenario. Now you saw the man kneeling down, opening the bag near the wheel well of a car. As you approached you saw inside the bag what looked to be, according to your training, a brick of cocaine. The guy looks up at you, and the drugs fall out into the street. You stop to talk to him, and he offers you the $50,000 as a bribe not to arrest him. Your supervisor concludes by saying, “You didn’t hear it from me.”
While the specific circumstances of this hypothetical are perhaps a bit flashy, the routine is typical in the life of a street cop, according to former NYPD Detective Carlton Berkley. An even more ordinary case would involve possession of a small amount of marijuana, the most common arrest in New York City.
“At the district attorney’s, you can tell them that story,” Berkley explains. “It’s not even necessarily a believable story. No one in their right mind would examine drugs like that in the street. When you step out into the street with 15 kilos of cocaine and $50,000, you already know what you have in the bag. But the pressure is put on the arresting officer, because you always want an airtight case, you are supposed to win, and the cop is supposed to come out looking like the good guy.”
Misrepresentation, deception, and outright lying appear to be part of a police officer’s job description, so much so that the term “testilying,” now common vernacular for police falsifications, was actually coined by NYPD officers as something of an inside joke.
Even done in the interest of public order, or some imagined ideal of keeping the bad guys off the streets, this practice has wretched results. Today there are 7.5 million people under the control of the US criminal justice system and countless more impacted by the kidnapping and caging of their family members, loved ones, employers, employees, coworkers, neighbors, etc. The disparate impact on demographic groups with darker skin—primarily people perceived to be Black, Latino/a or Muslim—has been well documented.
It is the exception, not the rule, that these lies are exposed by judges or prosecutors in the courtroom for the public to consider (for the defendants the lies are quite apparent), and the results, when it happens, are twisted.
On November 17, 2012, a 40-year-old father from Harlem, Greg Allen, defending himself pro se (Latin, he says, for when you fire your attorney), won acquittal in a case brought against him by the Brooklyn District Attorney and the New York City Police Department. The Judge determined that the witnesses, two officers from Brooklyn’s notorious 73rd precinct, had lied.
The police officers, William Gardner and John Blanco, had accused him of disorderly conduct and obstructing government administration (crimes he did not commit), and the cop’s own video evidence showed his innocence. The police and the district attorney prosecuted the case anyway even though their own videotapes exposed the police testimony as a fabrication. They refused to back down from their original story. The judge didn’t buy it.
"It's like you're sitting there in the courtroom watching a video with the judge and the cops, and the cops are just saying something totally different than what the video shows," Allen says.
So used to this absurd process was the young prosecutor, Seth Zuckerman, that he never flinched as the cops went through the charade. Perhaps more tellingly, the district attorney’s office, Zuckerman’s bosses, didn’t drop the case even after learning that their only physical evidence contradicted the officer’s story of the arrest.
A few weeks later, US District Court Judge Shira Scheindlin upheld claims of NYPD misconduct in another case, finding the testimony made by police officers Miguel Santiago and Kieron Ramdeen not credible. Scheindlin sort of piled it on. The officers’ account “makes no…sense,” it was “implausible,” she said. She noted that Santiago had previously lied in the scope of his police work, issuing summonses to an innocent person to help a friend of his in a bizarre revenge scheme.
Scheindlin’s ruling hinged on the fact that officers in the Bronx, Santiago and Ramdeen among them, routinely invented justifications for stopping people outside certain buildings in the borough and at times made arrests without cause. People doing nothing wrong were stopped, harassed, illegally searched, and arrested at the whim of the officers who then created legal justifications for their actions after the fact.
First- and second-degree perjury is a felony, and yet none of these cops will face any charges for straight up lying in a courtroom under oath. The rules are different for cops. As infuriating as that might seem, this pattern of behavior has been known fact for decades.
A 1987 study from Chicago found that 76 percent of officers agreed that that they frequently bent the facts to establish probable cause; 48 percent said that judges were right in tossing police testimony as untrustworthy.
Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, publicly stated in the 1990s:
"It is an open secret long shared by prosecutors, defense lawyers, and judges that perjury is widespread among law enforcement officers … police lie to avoid letting someone they think is guilty, or they know is guilty, go free."
By not acknowledging rampant police misconduct, by not demanding that criminal justice is meted out in a fair way, what are we giving up? Are we sacrificing a moral claim to justice by sanctioning the police—and thus the state—the freedom to circumvent the rule of law in the pursuit of a particular type of social order?
“That is assuming that the justice system ever had any moral claim, which I would not assume,” former NYPD officer and Queens county prosecutor Eugene O’Donnell says. “There is dishonesty in court, prosecutorial dishonesty. It’s legislative dishonesty that sets up this system and by no means are cops exempt from a system that is dishonest and fundamentally flawed.”
The course of a legal proceeding provides law enforcement officers with several opportunities to perjure themselves. Immediately following an arrest, the officer and a prosecutor fashion a “complaint” – the legal document that officially charges the defendant with a crime. The officer swears that the document is truthful.
Then there is an indictment, which typically includes a grand jury that again calls on the officer to testify to the events that led up to the arrest. If the defendant challenges aspects of the arrest, for example by arguing that the officers had searched him and his belongings without his consent, then a “suppression hearing” is convened to determine what evidence can be used at a subsequent trial. During the hearing the officer will again testify to the events of the arrest.
Cops didn’t always have to lie to square away their arrests. The historical irony is that a Supreme Court ruling barring evidence obtained illegally gave birth to today’s practice.
The art of testilying seems to have developed in response to the so-called exclusionary rule, which bars evidence acquired by the police in an unlawful manner: the fruit of the poisonous tree. The US Supreme Court, through landmark Fourth Amendment rulings in Mapp v. Ohio (1961) and Terry v. Ohio (1968), limited the methods by which police could gather evidence to be presented at trial.
Prior to Mapp, police had little incentive to lie in court because there was nothing wrong with truthfully detailing the many ways in which they broke the law. Instead they could openly testify that they had stopped a man for no reason, found drugs, and arrested him. While the search was technically illegal, the evidence was admissible and could be used at trial. After Mapp, these sorts of cases were challenged, and police started making up justifications for illegal stops and seizures.
Writing in The Nation in 1967, in the wake of the new Mapp rules, Irving Younger explained the routine:
“Then the police made the great discovery that if the defendant drops the narcotics on the ground, after which the policeman arrests him, then the search is reasonable and the evidence is admissible. Spend a few hours in New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground.”
And thusly “the dropsies” entered the police lexicon.
Although judges and juries are not supposed to consider the word of an officer above that of a defendant, most typically do. Most people have been socialized to see the police officer as a generally good person and the accused as generally bad. Upon closer inspection, this assumption doesn’t make much sense, but nevertheless it empowers law enforcement to stretch the truth. They can count on getting the benefit of the doubt.
“Everyone assumes that the defendant is self-interested and is motivated to lie, and that the officer is there just to say what happened,” said former New York City assistant district attorney Bennett Capers, now a professor at Brooklyn Law School.
But this is not really true.
Officers may gain some tangible benefits from seeing that their arrests turn into convictions—such as promotions or preferential assignments—but more powerful still is the culture of law enforcement that degrades any type of perceived weakness and indoctrinates an us-against-the-world mentality that provides rationalization for almost any activity, legal or not.
“Police see the world in black and white, there are not a lot of shades of gray. There is us, on the job, and our families and people who are sympathetic to our worldview and everybody else is an asshole…. Anything that I, as one of the good guys, that I can do to get the bad guys in jail is justifiable,” former Boston Police Department Lieutenant Thomas Nolan says.
It’s this mindset that makes a police officer feel he is entitled to lie, justified to do whatever it takes and even, in a way, obligated to violate people’s rights if he deems it necessary to his purpose of getting the “scum” off the streets.
“The thin blue line and all those bullshit rhetorical phrases are thrown out there, telling them they are the only thing between order and anarchy,” Nolan says.
The police are a fraternity built upon a false reality. Officers see themselves in a dangerous, noble cause against the underworld, and this is further instilled through the same types of bonding, secrecy, and war metaphors that have historically been part of the languages of those engaged in the practices of exterminating the “other.” Psychologically the police are indoctrinated into something akin to genocidal project: the forced removal of a class of people from their homes to prison.
There is a deep-seated disregard for what they consider to be silly little laws made by a silly little Supreme Court in a backroom far removed from the dangerous streets they are trying to bring into order.
Beyond the sociology, it is also embarrassing for an officer when a defendant walks—when cops lose a case. Now his fellow officer brothers are telling him he doesn’t know how to testify, they can’t believe he lost such an easy case. Part of this is just making sure you save face.
“Winning is what counts with the NYPD and the district attorney’s office,” Berkley said. When the cop wins, he gets a pat on the back, even when everyone knows that it was a bullshit case.
But it’s not all on the officers. Former NYPD commissioner William Bratton, laid the blame for testilying on prosecutors, suggesting that through their efforts to win cases, they sometimes “coerced” young, well-meaning officers into perjury.
The district attorneys do whatever they can to keep you as an officer sticking with your story. If you start changing it up, the district attorney will get you back in line, according to Berkley.
An Capers agrees. The prosecutors don’t want to be embarrassed and lose the case either. As a prosecutor, it’s tempting to explain to an officer-witness what he would need to say in order to make the conviction, and then ask him what it was that he saw.
Prosecutors and judges tend to look the other way, even though sometimes the lies are quite apparent. This is partly due to prejudging the defendant as guilty.
But political implications also play a role. The district attorneys rely on the gravy train of arrests to make their cases. A world without criminalization would mean the obsolescence of the police, the prosecutors, the judges, the court staff—and no one already in the mix wants that.
If the district attorney were to accuse an officer of perjury, it’s basically a declaration of war, Berkley said. All of a sudden you will have a lot of DWI check points outside those office holiday parties.
“At the Southern District of New York, if we really thought that an officer had lied, and we had evidence or a judge had made a finding on the record that the officer had lied, our response was to keep using that officer,” Capers said. “We’d avoid bringing him to the stand, we’d call his partner rather than him, but we’d never take the next step of filing a perjury case because that might mean he’d lose his job.”
Meanwhile, officers can rely on further protection from each other.
“You’ve been brainwashed into this way of thinking it’s us against them. You are spending more time with these guys than with your wife and kids; they might save your life in a shoot out. You do whatever you can for your brother,” Berkley said.
If you go against this code, you are labeled a “rat” and there are real repercussions, he added. All of sudden your tires are flat at the end of a shift, you have urine or feces on your locker, your wife is getting phone calls, you’re getting a type of supervision where you can’t really breathe.
“It’s not worth it, because these guys are capable of really carrying out their threats, because who are they? They are the police,” Berkley said. Meanwhile, if you play by the rules you are beloved by everyone.
This code, the Blue Wall of Silence, has been one reason that holding police accountable is so difficult. In 1995 Boston Police officers beat one of their own, a Black undercover officer named Michael Cox, nearly to death after mistaking him for a homicide suspect. As he lay intubated in a hospital, the 21 officers at the scene each denied having any idea what had happened to their “brother.”
In November 2012, a federal judge in Chicago held the city responsible for the pervasive deception of its police department after its officers refused to properly investigate the complaint of a bartender who was severely beaten by a drunk off-duty cop to whom she had denied service. The arresting officers went to great lengths to protect their coworker, and another city employee attempted to bribe the victim into silence. The city is appealing the ruling and Chicago Mayor Rahm Emanuel filed legal papers suggesting that there should be a code of silence about the code of silence.
The public’s reverence for law enforcement is also to blame for the impunity that police officers enjoy when they break the law and violate the most basic of human rights. There is a shared social understanding that police officers have a tough job to do, that we should cut them a little bit of slack, and really, protect them, Capers said.
Even in New York City people seem to approve of the NYPD. Ray Kelly has a 70 percent approval rating, O’Donnell notes, explaining that every New Yorker is complicit in sanctioning the practices of the city’s police force just as every American is responsible for the wars in Iraq and Afghanistan.
“Ordinary people are more hardnosed about crime than is generally acknowledged,” he said.
Capers finds there are distinctions on this issue along racial, class and neighborhood lines. There is a particular disparity between how mainstream America views police officers and how the residents of poor urban communities do, he said.
“For a lot of minority communities, they see evidence of police abuses and manipulating the evidence all the time. They show up in the courthouse and say ‘That’s not what happened!” In poor communities we’ve seen officers harassing people on the street, using excessive force and then claiming they did not, and so how can we take any officers seriously?” Capers said.
The continued surveillance of the police by civilians has been critical, both to the protection of people’s lives, liberty, and rights, and to the creation of a culture that might become more amenable to acknowledging the abuse of police officers and its corrosive impact.
“With people monitoring the police on their cell phones, evidence of police lying is much more common. Now we can prove it,” Capers said. “We really only prosecute officers when we can prove it, and I mean prove it by it’s on tape or we have several preachers up there to say this is what happened.”
As more of mainstream America sees this type of footage, the political will to make institutional changes will grow, perhaps supporting a higher level of disobedience to law enforcement.
People do not have to tolerate police abuse, but you have to be willing and able to get arrested and maybe go to jail if you are going to stand up for yourself, Berkley said. Filming the police and organizing community support for the purpose of combating police abuse are some of the only ways to protect ourselves and to win these types of cases at trial, he said.
We know that people are more likely to follow laws that they think are just, and more likely to support a legal system that treats them fairly. By giving law enforcement a free pass to break the law, by bending over backwards to ensure that there is no accountability for police officers except in the most unavoidable circumstances (i.e. alleged cannibalism), we are making illegitimate our entire system of justice and thus likely creating more so-called crime than we are eliminating by doing whatever it takes to get convictions on a handful of cases.
If we started taking police lies more seriously—prosecuting them as we would civilian perjurers—people in the communities most negatively impacted by police abuses (also typically communities with high levels of violence) would get the message that they are being protected by the law not persecuted by the law. People might even develop faith in the system. Until then, it’s hard to argue against the old saying that this is not a broken system but one functioning just as it was created to.
It’s not a problem of a few bad apples, as some people suggest, but instead a matter of irresponsible leadership, a pathological law enforcement culture, and a public ready and willing to sacrifice notions of justice, fairness and humanity for… what exactly?
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