That Chicago police who witnessed Officer Jason Van Dyke kill Laquan McDonald in a hail of sixteen bullets may have lied to cover it up is a reminder that misplaced trust in law enforcement can lead to injustice. According to civil rights attorneys, the systemic police lying evidenced in Chicago is a nationwide problem.
“It has been shown repeatedly that police usually close ranks and form a narrative that immediately puts the police in the defensive to justify whatever force was used,” says Ezekial Edwards, director of the American Civil Liberties Union's Criminal Law Reform Project.
Lies, he says, are told not just to cover up major events like a shooting but also to justify illegal searches in run-of-the-mill cases.
“If the facts are very helpful to a police officer, obviously they're going to tell the truth. But if they're not,” says Edwards, “a lot of the time you'll be dealing with testimony that's less than honest.”
Police departments, in Chicago and across the country, do little to detect, combat or punish these police lies. Last month, Salon published an investigation exposing how Cook County State's Attorney Anita Alvarez, under heavy fire for her handling of the McDonald killing, in February 2014 overruled a recommendation to prosecute two police officers who had freely admitted to lying about a shooting case.
Craig Futterman, a civil rights attorney and professor at University of Chicago Law School, called the case “a powerful example of State’s Attorney Alvarez’s refusal to address systemic perjury by Chicago police.”
He said that not only do prosecutors ignore perjury, they also depend on it to win prized convictions.
While individual cases of perjury can be difficult to prove, evidence of possible lying is readily available from arrest reports and judicial rulings. Police officials and prosecutors around the country, however, don't pay much attention to it—unless they're forced to.
In Philadelphia, local reporting has forced District Attorney Seth Williams' Office to confront, however modestly, abuses and perjury they had long ignored. In Chicago, the Sun-Times reports, “Cook County prosecutors acknowledge they’re having a tougher time getting convictions” in illegal gun cases due in part to “growing skepticism among jurors about the credibility of police officers.”
In New York, the NYPD is still working to create a system, recommended in 1999 by the Commission to Combat Police Corruption, to ensure that the department obtains information on judges' decisions to suppress evidence because it may have been obtained illegally, according to an October WNYC investigation.
Complaints of police lying in the city on are the rise, according to WNYC. But officers are rarely fired for making false statements.
Police who lie most prolifically, says Brooklyn Law School professor Bennett Capers, often have a reputation for doing so. But little to nothing is done as a result.
Capers says that during his time as a federal prosecutor in the U.S. Attorney's Office for the Southern District of New York, one staffer was charged with keeping a list of law enforcement officers whose testimony could not be trusted. The protocol was routine: Prosecutors working on a case would give that staffer a list of the officers they planned to call to testify. Any officer with their name on the list would not be put on the stand. Those officers, however, were never prosecuted for their lies, Capers complains, and only rarely investigated.
“They're still law enforcement officers for all intents and purposes,” says Capers. “The only thing we avoid doing is calling them as witnesses in future cases.”
Capers recalls one incident when his office did try to crack down on lies made by officers working with the Drug Enforcement Administration. In response, the DEA punitively “turned around and basically stopped bringing us cases,” he says, and diverted prosecutions to the neighboring Eastern District of New York.
Prosecutions of law enforcement for perjury are “incredibly rare,” says Capers, because “prosecutors don't want to prosecute the people who are supposed to be on their team. There's almost an inherent conflict of interest there.”
One very rare federal perjury prosecution of a police officer was successfully completed in 2011, when a jury convicted former New Orleans Police Officer Ronald Mitchell. Mitchell had shot and killed an unarmed man named Danny Brumfield in 2005 amidst the humanitarian crisis unfolding in Hurricane Katrina's wake. Mitchell was not prosecuted for the killing, which he claimed was justified because he believed that Brumfield had a gun. Instead, Mitchell was prosecuted because he lied under oath when he said that he stopped to get out and check Brumfield's vital signs. He had not done so.
The prosecution resulted from a Times-Picayune, PBS "Frontline" and ProPublica investigation that found that the police “department conducted cursory investigations of several post-Katrina police shootings, relying largely on the statements made by the officers involved, failing to talk to civilian witnesses and neglecting to collect physical evidence.”
The evidence for rarely filed perjury charges is often produced by defense lawyers, even though it is prosecutors' job to look for evidence of criminal behavior.
In 2012 and 2014, three Los Angeles Police officers were convicted of writing false reports and perjury in connection to a drug possession case, according to the Los Angeles Times. Officers had claimed that a man had run from them and thrown a box onto the ground which, breaking open, was revealed to contain crack and powder cocaine. Video produced by the defense attorney, however, showed that the box of cocaine was only discovered after a search that took more than 20 minutes. One officer told another: “Be creative in your writing.”
Police shootings understandably garner the lion's share of public attention.
But officers often lie in more mundane cases, including to secure convictions in cases where they think a defendant is actually guilty. That type of lying is accepted as commonplace by many in the criminal justice system but rarely confronted. The extent of the problem is hard to measure because authorities pay so little attention.
“Lying intended to convict the guilty—in particular, lying to evade the consequences of the exclusionary rule —is so common and so accepted in some jurisdictions that the police themselves have come up with a name for it: 'testilying,'” wrote Christopher Slobogin, director of the Vanderbilt Law School Criminal Justice Program, in a 1996 Colorado Law Review article.
Indeed, 76-percent of Chicago officers reported that colleagues sometimes "shaded the facts a little (or a lot) to establish probable cause when there may not have been probable cause,” according to a frequently-cited survey (with a very small sample) published in a 1987 University of Chicago Law Review article.
Whatever the motivation, police perjury substitutes an officer's opinion for the judicial process and for constitutionally-established rule of law. And it can lead to injustice.
A 2013 Washington University Law Review article by Georgia State University College of Law Professor Russell Covey examined two high-profile cases of police misconduct in Los Angeles and Tulia, Texas. Both resulted not only in the violation of the rights of people who may have been guilty but also in wrongful convictions: an innocent defendant, facing a long prisons sentence, has a major incentive to plead guilty to receive a shorter sentence instead of trying to convince a fact finder that police are lying.
“Time and again,” Covey writes, “actually innocent defendants asked by investigators to explain why they pled guilty repeated a common mantra: it was their word against that of the police, and who were the prosecutors, judges, or jurors going to believe?”