I just read some absolutely shocking, shocking news on the front page of the Denver Post and it had nothing to do with Casey, or Anthony, or Whitey, or even O.J.
Cops Testify Amid Doubt, was the headline. Wow, like, after 22 years of daily in-court work as a Deputy Colorado State Public Defender, I was formerly unaware that cops lie and cheat at work; about personnel issues, about not following police procedure, about unlawful arrests, about hiding exculpatory evidence, about beating citizens into unconsciousness for no good reason; and even when they lie and cheat and beat so often that their superiors are forced to reprimand them on their permanent record, defense attorneys still don’t get the memo.
Despite having been recently been treated to the stylized rantings of certain legal pundits, you probably still remember that a person who has been accused of a crime is entitled to challenge the testimony of her accusers in open court. Secret witnesses are not allowed, no matter what Nancy Grace envisions in her little fantasy world where all prosecutors are appointed by God to rid the world of evildoers and are therefore entitled to a pass at trial on actual proof of guilt beyond a reasonable doubt.
An accused human is also entitled under both Colorado law and the U.S. Constitutional to challenge the credibility of all witnesses called to testify against her. If the witness is known to be a liar or a thief, or has a habit of lying about or cheating on similar cases, or has a demonstrated bias against one side or the other in a particular case, then the jury is supposed to get to hear about it and then give this information whatever weight they think it deserves in their deliberations. The jury alone decides whether to believe all, some, or none of what any witness has to say on the stand.
There is no state law or constitutional exception that allows cops to lie and cheat, especially in court. A cop is simply a witness, just like any other. In fact, a U. S. Supreme Court case called Brady v. Maryland specifically requires prosecutors to disclose all evidence, which might prove beneficial to the defense, including evidence affecting the credibility of any prosecution witness. Yet some prosecutors and even a few judges sometimes act as if Brady had been decided on some other planet, when it becomes inconvenient. Please let me give you an actual case in point:
I had a client who was accused of selling a small amount of drugs to an under-cover informant. The informant (who I will refer to affectionately as the snitch herein) claimed to have been the only alleged eyewitness as he was the alleged under cover buyer. The snitch, also a drug dealer, had decided to…uh…cooperate with the police just after he had been arrested on his 8th and 9th felony drug cases and was rotting in a local jail, unable to make bail.
And so, in my pretrial motions hearing in front of the judge, I made what a thought was a reasonable demand for discovery as to the parameters of the cooperator’s deal with the cops and prosecutors in exchange for an otherwise inexplicable desire to aid their efforts in the war on drugs.
At the motions hearing, the prosecutor and the North Metro Task Force detective said, on the record, right to the judge’s face, that there had been no deals express or implied with said snitch.
So I asked the judge if he ever heard of a crack dealer, with nine convictions, still breathing free air, without a deal from the prosecution. I pointed out that this guy had two pending felonies that should have sent him back to the joint on habitual counts for the rest of his life. No deals? Are you serious?
Okay, then how did the snitch send word out from his jail cell? Homing pigeon? Where are the police reports about the contact? How did he get out of jail on his own recognizance, (get out of jail free card) during pending felonies 8 and 9 without a deal? Surly the lead North Metro Task Force detective had a dossier on this snitch or at least record of the facts and circumstances surrounding their developing relationship. I knew that North Metro routinely required their snitches to perform at least three undercover operations, per deal. What other “work” had he done on other cases? Was he one of their itinerant or professional snitches?
Nothing. The prosecutor told the judge that there was nothing; the North Metro cop told the judge that there was nothing. And the judge, who you would think would be all over these guys about them hiding exculpatory evidence, instead just chuckled, until I suggested that there might be a credibility issue with the badged, Brooks Brothers guys on the other side of the room and then he yelled at me. And I got nothing.
At trial, the snitch swore under penalty of perjury and before the jury that he contacted the authorities, after being inspired by God to turn his life around and that there was no relationship between his current probationary status (upon his 9th felony conviction) and the volunteer work he did for North Metro. Then the cop took the stand and said that there had been neither any effort by the authorities get the snitch out of jail nor deals made to keep him from returning to prison, in exchange for his services.
After a 20 page, 25-year criminal history dating back to age 12, he just had a religious epiphany, that’s all. That is all the jury got to hear. And every time I would try to cross examine the snitch about the unlikely nature of said epiphany, the judge would shut me down, while the cop and the prosecutor just sat there smirking.
Needless to say, my client was convicted and the judge sentenced him to prison, because the His Honor felt that a drug dealer should not be allowed to walk around free in our community.
About three months after my client went to prison, a colleague asked me for some advice about how to handle a drug-snitch case. Even after I reminded her that I might not be the best one to ask, as my only trial loss in the last 10 years was on a drug-snitch case, she went ahead and showed me the discovery anyway, because she knew that her case involved the same snitch and the same cop as in my case and that both controlled-buys happened at virtually the same time.
She also suspected that the discovery on her case was a bit more complete than mine had been. An inexperienced prosecutor had obeyed the law and turned over an extensive dossier on the snitch, complete with a letter, written by the snitch from his jail cell to the cops, virtually promising to sell his mother to keep from going back to prison where he felt certain he would be murdered, him being a snitch and all.
Her discovery also contained a records from two different counties, showing that two different prosecutors had asked two presiding judges for two different P.R. bonds on behalf of this 7-time loser and a preliminary discussion by the authorities with said dude about possibly keeping him out of prison, in exchange for setting up a to-be-determined number of his old buddies and truthful testimony leading to their convictions. My client was of course, one of those old buddies.
I just hope that anyone reading this is not naive enough to believe that the example above was a rare exception. Unfortunately, various versions of the same scenario happened to my clients in court with frightening regularity. It was the kind of frustrating subversion of justice that made me curse a lot and feel helpless and made me work even harder.
In my business, experienced defenders know to expect many cops to make up stuff or hide stuff and at certain percentage of the local prosecutors to wink, nod, and look the other way. That getting a fair trial before a fair judge is sometimes less than guaranteed is generally the bane of every defender’s existence. The judge in my case had formerly been a prosecutor in that same county and is very smart man. He knew better and he just gave them a green light to screw my client. And the second-hardest part of it all was that I had really wanted to believe that the judge was a much better man than that.
Why do cops feel free to lie over and over and over again on the job and under oath in court? Because they can, of course, but also because some folks in positions of authority whom you would never think to suspect, tacitly accept if not encourage their misconduct.
Do not hold your breath for some newspaper articles and a few firings to change a systemic problem. As I said, I am absolutely shocked that it is still happening. Shocked.
J. Brandeis Sperandeo
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