(Reuters/Eric Thayer)

"It is an open secret long shared by prosecutors, defense lawyers, and judges that perjury is widespread among law enforcement officers": Why judges so rarely second-guess police testimony

Cops have virtually a blank check to engage in acts of brutality, knowing the courts will turn a blind eye


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Susan Bandes
December 16, 2015 5:57PM (UTC)

Monday in Chicago, high-ranking cop Glenn Evans was acquitted of shoving his gun down a man’s throat and pressing a stun gun to the man’s groin. Though the DNA of the alleged victim, Rickey Williams, was found on the officer’s gun, the judge found the testimony of the alleged victim, Rickey Williams, “unreasonable, improbable and contrary to human experience.”

Like most police brutality allegations, this one was a credibility contest between the police and the alleged victim. To the judge, it was more probable--more consistent with human experience—that the DNA made its way onto the gun during a tussle between Evans and Williams.

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The sad reality is that judges almost never second-guess police testimony. They give police more than just the benefit of the doubt—they practically give them a free pass.

Judges themselves are well aware how common it is for police to lie on the stand. Federal Judge Alex Kozinski stated publicly: “It is an open secret long shared by prosecutors, defense lawyers, and judges that perjury is widespread among law enforcement officers.” And only one of 27 Chicago judges interviewed by Temple University professor Nicole Van Cleve for her new book "Crook County" said police perjury didn’t occur. Twenty willingly admitted it, and the rest didn’t respond at all.

The cozy relationship between judges and police is so taken for granted that most people don’t even see it as bias. In fact, it is the worst kind of bias—a bias in favor of police as a group, which takes the place of an individual judgment in each case. It’s a violation of the judicial duty to decide cases without fear or favor.

This is an especially acute problem in police brutality cases. In the swearing contest between cop and alleged victim, the cop is sure to win nearly every time. The result is that cops have virtually a blank check to engage in acts of brutality and corruption, knowing the courts will turn a blind eye. As an infamous Chicago police commander named John Burge said to a suspect he was torturing, “No court and no State are going to take your word against a lieutenant’s word.” And he was proved right on multiple occasions.

Why do judges rubber-stamp cops? Some reasons are obvious. Judges must stand for popular election in many states, and it almost never pays to raise the hackles of police unions and  “tough on crime” voters. Also, as Van Cleve saw in her observations of the Chicago criminal courts, judges who spend too much time evaluating police testimony make cops angry, and risk “tarnishing” their reputations

Even judges with secure jobs are under tremendous pressure to side with the cops. Federal District Judge Harold Baer Jr. of New York almost got impeached in 1996 after he threw out a drug case because the probable cause for a car search consisted of the suspect running away from an officer who stared at him. Baer observed: “residents in this neighborhood tend to regard police officers as corrupt, abusive and violent. Had the men not run when the cops began to stare at them, it would have been unusual.”

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He spoke from experience. He had just served on the Mollen Commission, which had investigated police corruption and found substantial evidence that the police were corrupt, abusive and violent in the Washington Heights neighborhood of Manhattan during that time period. No matter. Under pressure from the White House and Congress, he reversed his ruling on appeal and deleted the objectionable language.

But judges don’t play along with cops just for practical reasons. Judges are human, and they bring their assumptions about human behavior to the bench. Assessing credibility involves deciding who is motivated to lie and who is acting from pure motives. Judges are inclined to believe that police officers are acting as public servants rather than as individuals who want to win a case.

This attitude was perfectly captured by former Supreme Court Chief Justice Warren Burger, who explained in a case where police perjury was alleged: “It would be a dismal reflection on society to say that when the guardians of its security are called to testify in court under oath, their testimony must be viewed with suspicion.” In other words, the police officer isn’t an individual with a particular job to do. She represents all of us. Or to put it another way, to question one cop is to smear them all, and in impugning our public servants, we sully ourselves.

This played out in one recent case in Portland, Ore., when a judge threw out charges that high school sophomore Thai Gurule had assaulted and attempted to strangle an officer. Numerous cellphone videos flatly contradicted police testimony. Judge Diana Stuart then did something exceedingly rare: She refused to believe a cop’s testimony.

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Police union president Daryl Turner predictably lamented: “What is most discouraging is that when police officers respond to a call, those officers must now be concerned that someone sitting in hindsight, from the safety of a courtroom, will not only question their actions, but also their credibility.”

It is a familiar refrain that criticism of police behavior disrespects the whole profession. Or even that the very act of questioning police conduct will lead to a tide of criminality and mayhem.

This was also the message from New York police union leader Patrick Lynch, who told Mayor Bill de Blasio he had blood on his hands when two officers were shot shortly after de Blasio offered some criticism of the NYPD’s stop and frisk program.The so-called “Ferguson effect” is another variation on this theme: Police can’t do their jobs if we persist in doubting and criticizing them; if all hell breaks loose, they cannot be held responsible.

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It is chilling but not surprising that police union leaders hold such attitudes. But it is especially disturbing for supposedly impartial judges to join the chorus. It makes judges an integral part of the blue wall of silence.

Police have the halo effect--they are acting for the common good. Those who complain about police are viewed as self-serving. Criminal defendants have an obvious stake in the outcome, so courts often view their testimony with suspicion. But even in a civil case, those who claim police brutality often have their motives impugned. They are regarded as suspect simply because they are asking for monetary damages—portrayed as in it for the money, rather than because they genuinely want justice.

Brutality claims are often brought by those at the margins of society. The complainant may have a criminal record (as Rickey Williams did), or no job, or a gang affiliation. It is not surprising that a judge would believe a highly decorated police officer over someone with a rap sheet. And this is precisely the problem. Police brutality is directed at exactly those people who are least likely to be believed. That is how it has flourished for so long. Cellphone, dash cam and body cam videos may make a difference, by making perjury easier to prove and harder to ignore. But ultimately judges need to start treating police officers as they would any other litigants, without fear or favor.

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Susan Bandes is the Centennial Professor of Law at DePaul University and a 2015 Public Voices Fellow of The Oped Project.

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