NY Times covers “Testilying”

The NY Times has a nice piece about testilying — police officers lying under oath — in New York courts.  It’s been a problem for a long time across the county.

Officer Nector Martinez took the witness stand in a Bronx courtroom on Oct. 10, 2017, and swore to tell the truth, the whole truth, and nothing but the truth, so help him God.

There had been a shooting, Officer Martinez testified, and he wanted to search a nearby apartment for evidence. A woman stood in the doorway, carrying a laundry bag. Officer Martinez said she set the bag down “in the middle of the doorway” — directly in his path. “I picked it up to move it out of the way so we could get in.”

The laundry bag felt heavy. When he put it down, he said, he heard a “clunk, a thud.”

What might be inside?

Officer Martinez tapped the bag with his foot and felt something hard, he testified. He opened the bag, leading to the discovery of a Ruger 9-millimeter handgun and the arrest of the woman.

But a hallway surveillance camera captured the true story: There’s no laundry bag or gun in sight as Officer Martinez and other investigators question the woman in the doorway and then stride into the apartment. Inside, they did find a gun, but little to link it to the woman, Kimberly Thomas. Still, had the camera not captured the hallway scene, Officer Martinez’s testimony might well have sent her to prison.

When Ms. Thomas’s lawyer sought to play the video in court, prosecutors in the Bronx dropped the case. Then the court sealed the case file, hiding from view a problem so old and persistent that the criminal justice system sometimes responds with little more than a shrug: false testimony by the police.

Here’s an old post from this blog about the problem:

Professor Dershowitz has been writing about lying police officers for a long time, and here are some of his rules of the "justice game" from The Best Defense: 

IV. ALMOST ALL POLICE LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DFEENDANTS. 

V. ALL PROSECUTORS, JUDGES AND DEFENSE ATTORNEYS ARE AWARE OF RULE IV.  

Those are interesting concepts, but the following 4 statements will encourage more discussion: 

VI. MANY PROSECUTORS IMPLICITLY ENCOURAGE POLICE TO LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DEFENDANTS. 

VII. ALL JUDGES ARE AWARE OF RULE VI. 

VIII. MOST TRIAL JUDGES PRETEND TO BELIEVE POLICE OFFICERS WHO THEY KNOW ARE LYING 

IX. ALL APPELLATE JUDGES ARE AWARE OF RULE VIII, YET MANY PRETEND TO BELIEVE THE TRIAL JUDGES WHO PRETEND TO BELIEVE THE POLICE OFFICERS.

So what is to be done about lying police officers?  We need to change rules 8 and 9.  Judges need to start calling them on it.  And of course, lying officers aren't the only problem with the criminal justice system that people have been writing about for years. 
There has been a lot said about prosecutors overcharging, the trial tax, and the Sentencing Guidelines just to name a few of the problems.
What can be done?  Article III judges, with life-time appointments, need to start speaking up and checking the executive branch with more vigor.  
--Dismiss more cases.  (See, e.g., Judge Scola in the "Pakistan terror" case by granting a judgment of acquittal; Judge Cooke in Ben Kuehne's case).    
--Grant more and longer variances. Judges are starting to grant more and more variances, but they are of the 6-12 month variety.  There are too many people in jail for too long because of the Sentencing Guidelines.  A federal conviction ruins people's lives.  Not every case necessitates lengthy sentences and many don't require jail at all.  The Guidelines are made up numbers without any real data to back them up.  I trust judges more than I do the grid.  
--Don't punish defendants for going to trial.  There are too few trials, mostly because the consequences of going to trial versus pleading are way too severe.  Going to trial doesn't mean that every enhancement applies or that variances are off the table.       
--Grant some pretrial motions and require prosecutors to turn over evidence.  I know that judges hate dealing with pretrial motions, especially those dealing with discovery.  But instead of denying them all, it's time to hold prosecutors' feet to the fire a little more.  The feeling out there right now is that each prosecutor decides for him or herself what to turn over and when and that judges aren't going to get involved.  It's also OK to throw out counts (yes, prosecutors overcharge) or to sever a case or to give teeth to any of the other Rules of Criminal Procedure.