“Testilying” an everyday occurrence

Mark Bennett posted a few days ago about the “everyday incident” of cops committing perjury – or as they call it, “testilying.” He stated that:

Not all cops who lie are willing to perjure themselves. Many times cops on the witness stand tell different stories (the truth) than what they had put in their offense reports (lies). Unfortunately, though, most cases never make it to trial (often the lies are too small to be relied upon to affect the outcome), so prosecutors — despite having seen this happen more than I have — rely on offense reports as the literal truth in deciding how to resolve cases. (The lesson to defense lawyers is, of course, not to make that mistake, to listen to your client, and to remember that good things happen when you try cases. Nobody ever got acquitted by pleading guilty.)

I can’t tell you how many times I have cross-examined a cop in a suppression hearing or preliminary hearing, where something completely different comes out of his mouth than what he wrote in his police report. I think that what obviously happens is that the cops do whatever they want initially. They pull the person over on a “hunch,” or search the person or their premises illegally, without regards to mere rules or laws, then they put in their “report” a little white lie – that they received a tip from an undercover informant, or that the person drove erratically, or that the person consented to being searched. This, in their mind, validates the search, stop, or seizure if they found anything incriminating. Then, several months later, they get called to the witness stand, and they fail to review the report, but their memory is not totally in sync with their report.

Cops don’t fear prosecution for perjury because there is almost a 0% chance they will be prosecuted. The cops – or judges for that matter – could care less. The only, only, only situation in which there could be criminal liability imposed on a cop for perjury is if they are caught on tape or under oath, and if it is blatantly intentional. Only if the situation is such that a prosecutor of judge would fear for his or her own job if they fail to act. Otherwise, they will always be given the benefit of the doubt, if not just a shrug of the shoulders.

As a defense attorney, you know they are lying, but there is not much you can do about it other than to contest it and to create a record for your trial or your appeal. As Mark Bennett, said, “nobody ever got acquitted by pleading guilty.”

– John H. Bryan, West Virginia Attorney.

The Officially Jaded View of Criminal Defense

At lunch today, I was thinking about my previous post regarding the Charleston cops spotlighting deer, and it hit me. It all boils down to this:

Case in point: Cops have a suspect. Cops go to suspect’s house. Cops do not have a warrant. Cops illegally enter house. Cops look for evidence. Cops interrogate and get statement from suspect. Cops find what they are looking for. Suspect gets attorney. Attorney files a motion to suppress evidence found based on cops’ illegal behavior (warrantless entry of house). Cops lie and say on stand they were given “consent” to enter. Defendant/suspect says he/she absolutely 100% did not give consent to enter house. Defendant’s parents confirm his/her story. Defendant’s parent’s friend confirms the story. Cops cannot provide signed written consent form (yes, they exist). Judge denies motion to suppress, stating that defendant and witnesses have motive to lie, but that the cops have no reason to lie. Defendant takes plea agreement. Defendant goes to jail or on probation. The end. It happens day after day after day. And in the end, what judge cares if they know the person is guilty? Likewise, what do the cops care? If they fail to find evidence, then the apologize and go on their way. If they do find evidence, they show up in court and say the magic words: “consent,” and boom, the judge denies the motion to suppress. And no one cares but the poor sap who was convicted and the defense attorney banging his head against the wall.

Sometimes practicing criminal defense can be an exercise in futility. People think they have all of these constitutional rights… but, when it comes down to it, you only stand a chance if you can stand in front of a jury and, despite everything found by the police and prosecutors, convince them it would be an injustice to convict your client. Your only hope otherwise is to argue a constitutional technicality on appeal, and who wants to do that when they have some control over their destiny through taking a plea deal – especially in West Virginia where you don’t even have a right to an appeal, and even if you get there, the justices are elected through partisan elections (i.e., good luck Mr. Charged-With-Sex-Crime).

– John H. Bryan, West Virginia Attorney.