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Posted 10/25/09 A Sheriff needlessly entangles himself, and his agency, in a web of deceit
As the balloon came to a surprisingly soft landing on the high plains of Colorado a transfixed nation held its breath. Was six-year old Falcon Heene alive? Could he be? Had the boy succumbed to hypothermia or, God forbid, suffocated from helium? Moments later, as authorities pounced on the disabled craft, a breathless reporter made the most startling announcement of all: there was no one on board. What do you mean, no one? Look harder! After hours of speculation about a missing basket that it turns out the balloon never had, Falcon magically appeared. None the worse for wear, he had supposedly been hiding because he was frightened of being punished for untethering the balloon. That’s when attention turned to his parents, unemployed actors Richard and Mayumi Heene, veterans of a March 2009 appearance on the “Wife Swap” reality program. An amateur scientist with a high-school education, Richard Heene had been unsuccessfully peddling a show entitled “The Science Detectives.” Then Thursday, October 15 happened. With the family occupying center stage on every network, it was the opportunity of a lifetime. Who knows what might have come their way except for Falcon’s explanation of why he hid, made to his dad during a live interview with CNN’s Wolf Blitzer: “You guys said...we did this for the show.” Larimer County Sheriff Jim Alderden, the only other participant in this fiasco who’s received as much TV exposure as the Heenes, endorsed their truthfulness from the start. Conceding at a news conference one day later that the boy’s comments “raised everybody's level of skepticism,” he nonetheless stuck to the view that the parents’ “non-verbal communications, body language, and emotions during this event were entirely consistent with the events that were taking place.” Still, he promised to re-interview the family to “see if we can put that issue [the alleged hoax] to rest.” That was Friday. One day later Richard Heene’s wife, Mayumi, confessed to an investigator that they faked the whole thing to promote “media interest.” That Monday Sheriff Alderden’s tune abruptly changed. While not mentioning her statement (he later said that Colorado law forbids it) he not only declared that the incident was a hoax, but that he had known so since the Blitzer interview, when the children’s “nonverbal responses” and “verbal cues” indicated that they were lying. “Needless to say, they [had] put on a very good show for us, and we bought it,” the Sheriff said. He then supposedly decided to put on his own little show and let the parents think that he still believed in them so that they kept cooperating. Sheriff Alderden’s mea culpa came one day later. At another news conference he told reporters “I think we came close to misleading the media. I apologize.” Sheriff Alderden explained that his only motive in misstating his support of the Heenes was “to make them believe we were still on their side.” But was the alleged deception necessary? Hardly anyone thought so. “He could have just said nothing,” an expert pointed out. “If he wanted to send a message to the family, he could have said it to them personally and not used the media and engaged in misleading the public.” To this observer the Sheriff’s explanation seems nearly as implausible as the balloon caper. When he pooh-poohed the boy’s comments and said that his parents’ conduct was consistent with the truth (opinions that he now disavows), his own “non-verbal communications” and “body language” seemed unexceptional. He spoke with conviction and was to all appearances telling the truth. Indeed, Sheriff Alderden didn’t publicly turn against the parents until after Heene’s wife confessed and deputies served a search warrant at the parents’ residence. He then claimed that his real conversion took place during Blitzer’s interview three days earlier, when the children’s behavior convinced him that the balloon episode was a hoax. Sheriff Alderden’s “confession” that his support for the Heenes had been insincere opened a Pandora’s box that forced him to apologize to the press the very next day. But could his apology be the real deceit? Had he really believed in the Heenes and was now simply trying to cover up his naiveté? We’ll probably never know. There are other issues. Professional law enforcers know that it’s a bad idea to publicly discuss the strength and nature of evidence or the methods used to acquire it while an investigation is in progress. Mentioning such things, if at all, should come only after consulting prosecutors, not as ad-libbed comments during press conferences. And barring the most extreme circumstances, false public disclosures are always out of bounds. There are many way of inducing persons to cooperate, some less tasteful and more legally problematic than others. Extensive police contact with suspects who don’t have lawyers inevitably gives rise to Constitutional concerns. What did deputies tell family members? Were the Heenes coerced in any way; for example, with threats of losing custody of their children? Did they feel compelled to cooperate? Were they free to walk away? By making himself and his deputies out as master manipulators, making the Heenes out as suspects from the Blitzer interview on, and (allegedly) using the media as his proxy, Sheriff Alderden turned the prosecution of two alleged hoaxers into a moral drama, and perhaps a legally problematic one at that. Interviewed in 2007 about another agency’s lies to the press, Sheriff Alderden said that “all of us in this profession rely on a reputation for truthfulness, and even with best of motives, you can destroy that reputation pretty easily if you're not careful.” Exactly. “Oh what a tangled web we weave when first we practice to deceive” (Sir Walter Scott, 1771-1832) Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED ARTICLES Homepage for ballon-boy saga in Fort Collins Coloradoan UPDATES 12/23/09 Heenes get brief jail terms, probation; restitution to be determined 11/13/09 Heenes plead guilty; he to a felony, she to a misdemeanor Home Top Permalink Share this post
Playing ostrich about officer misconduct doesn’t make it go away
It was a brisk Virginia morning. Dressing quickly, your blogger rushed to the hotel conference center, eager to grab a good seat for what promised to be the most interesting panel at NIJ’s 2009 conference. Entitled “The View From the Street: Police Leaders Share Their Perspective on Urgent Research and Policy Issues Facing Law Enforcement in 2009 and Beyond,” the session featured six police chiefs, among them the President of the International Association of Chiefs of Police, Algonquin (Ill.) chief Russell Laine. Nashville chief Ronal W. Serpas, co-chair of the IACP Research Advisory Committee served as moderator. Chief Serpas began by mentioning that in a recent survey, police chiefs identified their top three concerns as leadership, personnel management and -- one of your blogger’s favorite topics -- ethics. Alas, after that promising start it took ninety minutes for ethics to come up again. Only moments before the session ended, a panelist mentioned that, by the way, “ethics and discipline, holding people accountable” were just as important as all the nuts-and-bolts concerns that had dominated the discussion. That conduct issues got such short shrift was somewhat surprising, as in 1997 the IACP had itself stated that “ethics is our greatest training and leadership need today and into the next century.” In September 2008 the IACP, in conjunction with NIJ, published the “National Law Enforcement Research Agenda” (NLERA). A representative survey of 1,000 IACP members yielded eight issues that police executives consider most worthy of research:
Ethics is nowhere to be found. In fact, the only conduct-related concern is “use of force.” But once response data was incorporated into a formal agenda, things changed. Use of force went inexplicably AWOL, while ethics was mentioned -- once, in the “Leadership” category, shoved in between “transparency” and “accountability”. Ethics also came up twice in the text: near the end of
Other than for these pitifully brief mentions, the IACP’s research agenda for the 21st. century literally ignores officer behavior. That seems an awfully shallow approach. Given the occasionally tragic consequences of even the best police work, law enforcement executives desperately need to know what makes cops cross the line, and why. If you don’t believe that studying the causes of misconduct is all that important, here are some recent examples that’ll curl your hair: Two Hollywood (Fla.) police officers, a sergeant, a CSO and a civilian are being investigated for allegedly falsifying an arrest report to cover up a car wreck. A Federal monitor spent nearly a decade supervising LAPD’s adherence to the provisions of the Rampart consent decree. A just-released Minnesota investigative report accuses members of a defunct Minneapolis gang strike force of appropriating seized valuables for their own use. A recent, high-profile arrest in Cambridge not only brought an officer’s truthfulness into question but precipitated a major inquiry into police-community relations. The Orange County (Calif.) Sheriff’s Department faces a Federal inquiry about jailhouse abuses that could lead to the imposition of a Rampart-like monitoring scheme. At least fourteen Customs and Border Protection agents have been arrested so far this year for taking bribes from drug traffickers. Cuyahoga County’s long-serving Sheriff resigned after a newspaper reporter exposed alleged misdeeds ranging from working only one day a week to giving donors rich contracts. Five Birmingham police officers were fired for kicking and beating a suspect with a club and fists after a 22-minute pursuit. Their acts are under Federal investigation. Orange County’s (Calif.) D.A. openly accused several sheriff’s deputies of lying on the stand to keep a colleague from being convicted for misusing a Taser. A recent report by the California Attorney General slammed the Maywood Police Department for hiring unqualified cops, illegally detaining citizens and using excessive force. An L.A. County deputy sheriff was charged with perjury for falsely testifying about the circumstances that led him to arrest a suspected drug dealer. FBI agents are investigating twelve Philadelphia officers for knowingly using false information from an informant to secure numerous search warrants. In Bellaire (Tex.) a police officer was arrested for needlessly shooting and killing a man who was mistakenly thought to be driving a stolen car. LAPD officers have been awarded multi-million dollar jury verdicts against the City for alleged discrimination and sexual harassment by colleagues and superiors. Montague County’s (Tex.) former Sheriff, nine guards and four inmates were indicted for turning a jail into an “animal house” of drugs and sex. Hundreds of felony cases were dismissed because Louisville cops failed to attend court hearings. Many missed their appearances on purpose; few were disciplined. Tenaha (Tex.) police and prosecutors are accused of coercing black citizens driving through town to turn over cash and valuables on pain of being prosecuted for money laundering. The St. Louis (Mo.) D.A. dropped 47 cases and is reviewing 986 convictions after a cop confessed that he and his partner planted evidence and stole money from a drug dealer. Several LAPD officers face a civil rights investigation for allegedly lying on the stand. One was recorded advising a colleague to be “creative” on the arrest report. Orange County’s (Calif.) ex-Sheriff, Mike Carona, faces six years in Federal prison after his conviction for jury tampering. These episodes, which were culled from news clips posted in Police Issues between January 2009 and the present, constitute only a small fraction of the instances reported in the media. No, we’re not claiming that policing is hopelessly awash in evildoing. But burying our heads in the sand -- and that’s what IACP’s proposed research agenda amounts to -- is precisely the wrong approach. However uncomfortable honest self-assessment might be, there is a pressing need to dispassionately study why cops cross the line. Yet given the short shrift accorded to ethics and misconduct at the NIJ Conference (the chief’s panel wasn’t the only “violator”), whether anything can be accomplished through the present system seems questionable. Well, this concludes our posts about the 2009 NIJ Conference. We hope that you’ve found the series useful! Did you enjoy this post? Be sure to explore the homepage and topical index! OTHER POSTS IN THE 2009 NIJ CONFERENCE SERIES DNA’s Dandy, But What About Body Armor? Science is Back. No, Really! Slapping Lipstick on the Pig Part I Part II Part III Home Top Permalink Share this post Posted 8/16/09 HE SAID THAT SHE SAID...BUT DID SHE? Does the Cambridge PD report truthfully reflect what a witness said?
REPORTER 1: [at 7:10] Did you ever talk to Sergeant Crowley? On July 29 the woman whose 911 call precipitated the encounter between Cambridge PD Sgt. James Crowley and Henry Gates met with reporters to counter the “scorn and ridicule because of the things I never said.” Our prior post, “When Very Hard Heads Collide,” analyzed the interaction between the cop and the prof. This time we’re interested in what happened when Sgt. Crowley, having just arrived at the scene, contacted Lucia Whalen, the Harvard fund-raiser who made the 911 call. Let’s start by examining Sgt. Crowley’s report, which was released a few days after the July 16 incident: When I arrived at [17] Ware Street I radioed WCC and asked that they have the caller meet me at the front door to the residence. I was told that the caller was already outside. As I was getting this information, I climbed the porch stairs towards the front door. As I reached the door, a female voice called out to me. I turned and looked in the direction of the voice and observed a white female, later identified as Lucia Whalen, who was standing on the sidewalk in front of the residence, held a wireless telephone in her hand and told me that it was she who called. She went on to tell me that she observed what appeared to be two black males with backpacks on the porch of [17] Ware Street. She told me that her suspicions were aroused when she observed one of the men wedging his shoulder into the door as if he was trying to force entry. Since I was the only police officer on location and had my back to the front door as I spoke with her, I asked that she wait for other responding officers while I investigated further. With the 911 tape under wraps for another week, the public had no reason to suspect that Ms. Whalen might have been incorrectly quoted. Had her purported depiction of “black males with backpacks” proven accurate it wouldn’t have raised an eyebrow. But it was wildly off the mark: while Gates was black, his taxi driver wasn’t, and the backpacks were really suitcases. Whalen instantly became a target of the blogosphere. Here’s an extract from one of the loonier postings: Lucia Whalen goes down in history as the woman who showed the world that racism is alive in America today. Lucia Whalen goes down in history as the woman who almost started a race riot, and international incident. She goes down as the woman who led President Obama to be reminded by bigoted white folks that even though he is President he is still an n-word! Thanks to Lucia Whalen, a stellar police sergeant is now labelled, Sgt. Jim Crow, while Prof. gates is labelled Prof. Uppity! Now there's a new saying, "Being home while black!" Yes, it was her actions that started the tsunami of emotion and polarization. Even more “respectable” sites couldn’t wait to unleash their poison. Here’s a sliver from John Cook’s piece in Gawker: Harvard's star African-American studies professor Henry Louis Gates got hauled to jail by the cops for breaking into his own house because the lock was broken. That's racist. So is the lady who called them, who also works for Harvard. Cambridge police released the 911 tape a week later. That proved the biggest shock of all. In her conversations with the 911 dispatcher, Whalen, who happens to be of Portuguese descent, had actually taken great care to portray her observations as accurately as possible. She said “suitcases,” not “backpacks.” Her only mention of race was in response to a prompt, and only to suggest that one of the men (as it turns out, the taxi driver) might have been Hispanic: DISPATCH: Ok what's the problem? Can you tell me exactly what happened? The 911 operator accurately passed on Ms. Whalen’s remarks to the beat officer. Nothing was said about black persons or backpacks. (Sgt. Crowley, an administrative officer who happened to be in the area, soon offered to take the call.) 911: Control to Car 1, 18-4-0. Journalists immediately jumped on the clash between what Ms. Whalen said to the dispatcher (one possible Hispanic and suitcases) and what she reportedly told Sgt. Crowley (two blacks with backpacks.) Contacted by a journalist, the officer affirmed that the report was correct. “Obviously, I stand behind everything that’s in the police report. It wouldn’t be in there if it wasn’t true.” But his chief didn’t seem quite as certain. Interviewed the night before the 911 tapes were released, Commissioner Robert C. Haas implied that the police report shouldn’t be taken too literally: In an interview last night, Cambridge Police Commissioner Robert C. Haas said it was accurate that Whalen did not mention race in her 911 call. He acknowledged that a police report of the incident did include a race reference. The report says Whalen observed “what appeared to be two black males with backpacks on the front porch’’ of a Ware Street home on July 16. That reference is there, said Haas, because the police report is a summary. Its descriptions - like the race of the two men - were collected during the inquiry, not necessarily from the initial 911 call, he said. Is that what police reports really are? Summaries? While they often condense what witnesses and suspects say (much like the above two paragraphs condense what the Commissioner supposedly told the journalist) police reports are critical documents that form a basis for further inquiries and are frequently referred to in charging documents and in court. Officers know to keep them factual. Of course, how much to include depends on the circumstances; for example, Sgt. Crowley, who was enmeshed in a ticklish situation, depicted his actions in excruciating detail. No matter how the cops may choose to spin it, it’s painfully obvious that “she went on to tell me that she observed what appeared to be two black males with backpacks on the porch...” is intended to convey the thoughts of a single person, not a collective. But for the sake of argument let’s assume that Cambridge police operate in a parallel universe where “she” really means “they” and officers are free to summarize accordingly. Where might have Sgt. Crowley “collected” information that there were two black suspects with backpacks? Having ruled out the 911 operator we’re left with three possible sources: other officers or civilians who had reason to believe that a pair of black males with backpacks were committing burglaries, the older woman who originally alerted Ms. Whalen to the odd goings-on at 17 Ware Street, and Ms. Whalen herself. As to the first two we simply don’t know (the elderly lady wasn’t identified on the police report or in known media accounts of the case.) As for Ms. Whalen; well, it’s easy to understand why she might have felt compelled to speak out. Forget the 911 call: if the police report is accurate, she’s still morally on the hook for making incorrect, racially-charged statements to Sgt. Crowley. What’s Cambridge PD doing to resolve the dilemma? According to the Boston Herald, very little. A spokesperson for Crowley and the Cambridge police union refuses to comment any further than to say that both “stand by” the police report. Meanwhile Commissioner Haas appointed a panel to look into the incident and is pressing to put the whole mess behind him. In the end, either Ms. Whalen told Sgt. Crowley “that she observed what appeared to be two black males with backpacks on the porch of [17] Ware Street” or she didn’t. If the latter’s true -- that’s what Commissioner Haas apparently thinks, and that’s how it seems to this blogger -- then Sgt. Crowley’s report is glaringly incorrect. After all, unless Ms. Whalen saw something new -- and there’s no indication that she did -- it strains credulity to think that her account would have shifted so drastically during the brief interval between her 911 call and Sgt. Crowley’s arrival. Did he make an honest mistake, and if so, how did it come about? Was he pressured to tweak the facts? Did he purposefully lie? Resolving these questions is of great importance. Citizens are entitled to have confidence in the integrity of their police. Sgt. Crowley’s career and effectiveness could also be on the line. Lying on a police report can create criminal liability. Under the Brady rule it also makes an officer’s testimony perpetually subject to challenge, thus rendering a cop essentially worthless in the field. On August 10 the blogger e-mailed a set of questions to Frank Pasquarello, Cambridge PD’s public information officer, and Sgt. Silverio Ferreira, its professional standards officer. As of yet there’s been no response. Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED POSTS When (Very) Hard Heads Collide Good Cop / Bad Cop To Err is Human UPDATES 9/29/09 In Massachusetts, Boston Police Commissioner Edward F. Davis is pushing a new policy to fire any officer caught lying. 8/17/09 Sgt. Crowley gets hero’s welcome at Fraternal Order of Police convention in Long Beach (Calif.), thanks members for their support. 7/24/09 TV interview of Sgt. Crowley Police audio archives Home Top Permalink Share this post Posted 7/26/09 WHEN (VERY) HARD HEADS COLLIDE A professor and a cop revive the race debate. But was it really about that?
It’s about a quarter to one in the afternoon of a sunny spring day in Cambridge, Massachusetts. Police sergeant James Crowley is driving an unmarked car near Harvard Square. No, he’s not on patrol or a stakeout. Crowley’s an administrator who normally oversees functions like the property room. He probably just had lunch. Not far away Harvard Professor Henry Louis Gates Jr. is struggling to get into his house. A renowned black scholar who specializes in issues of race, Gates has just returned from an overseas trip. His front door is badly stuck and he asks the cab driver to help get it open. Watching from a short distance away, Lucia Whalen, 40, a white Harvard professor, grabs her cell phone and dials 911. Sgt. Crowley hears the call go out. Since he’s close by he grabs the mike and announces he’ll respond. Finally, a chance to do some real police work! Quickly arriving, he talks with Ms. Whalen. According to the police report she says that two black men with backpacks were trying to get in a house, and that one shouldered the door “as if he was trying to force entry.” (According to her lawyer, Ms. Whalen has supposedly denied saying the men were black.)
Not a patrol cop, Sgt. Crowley is unfamiliar with the rhythms of the neighborhood. But there is a credible witness. Residential burg’s, he knows, usually happen during the day, when folks are at work. And there’s always a whiff of danger. It hasn’t been that long since three Pittsburgh (Penn.) police officers were shot dead responding to a domestic disturbance. From a distance Sgt. Crowley spots a black man through a window. Sure enough, at least one got in! Tired from the trip, irritated with the balky door, Dr. Gates gets off the phone with the Harvard fix-it crew just in time to hear someone in a police uniform yelling. A cop -- a white cop -- is ordering him to step outside. The professor’s temper flares.
What happened next is in some dispute. Everyone agrees that Sgt. Crowley announced he was there to investigate a break-in and asked Dr. Gates to step out, and that Dr. Gates replied it was his house and he wasn’t coming out. (According to the police report, the professor’s response was “Why? Because I’m a black man in America?” Dr. Gates conceded that he brought up race but denied doing so offensively.) By the time that Sgt. Crowley entered the home other officers had arrived, including the beat cop, officer Carlos Figueroa. Sgt. Crowley asked Dr. Gates for ID. But the sergeant says Dr. Gates only gave him his Harvard ID, which doesn’t include residence information, while the professor insists he also gave up his driver license, which does. Either way, as Sgt. Crowley concedes, it was soon apparent that Dr. Gates was the bonafide resident. Instead of snaring a burglar Sgt. Crowley was facing an infuriated man who seemed convinced that police were picking on him because he was black (“This is what happens to black men in America” is what officer Figueroa reportedly heard.) Sgt. Crowley thought he was done. But Dr. Gates followed him outside, ranting about his treatment and attracting attention from curious neighbors and a small armada of police. That’s when a once-obscure officer in a once-obscure agency made a very bad decision. Instead of fleeing to Starbucks, Sgt. Crowley chose to engage. He warned Dr. Gates that if he kept it up he would be arrested for disturbing the peace. It didn’t work. Having driven himself into a self-righteous tantrum, the scholar hollered all the louder. Might either have backed down had there been no audience? It’s possible. But there was, and they didn’t. As they say, the rest is history. (Dr. Gates was booked, and the charges were quickly dismissed.) Many years ago, when your blogger was an ATF agent in Helena (Mont.) he got word that members of a film crew near the Canadian border had a local resident buy them handguns that they intended to take to their homes in New York City. It was irritating to travel on a Friday to tidy up the situation, and when the producer refused to have the guilty parties come in your blogger threatened to shut down the set and get a search warrant. Fortunately, his partner (who was only in training!) calmed things down and got the producer to collect the guns himself and turn them over. And there was still time to enjoy the weekend! Every minute of every day hard heads of assorted colors and ethnicities collide. Regrettably, some of these skulls belong to cops. Officers aren’t superhuman and occasionally fall prey to provocation. That’s when we depend on their peers and superiors to step in, and they almost always do. So here’s a question: where were Sgt. Crowley’s colleagues when he tangled with an irate Harvard prof? Here’s the answer: at the police station, where administrators normally roost. In the field, Sgt. Crowley from the property room was the Lone Ranger, and without Tonto. According to his report he alone decided to arrest Dr. Gates. There’s no indication that he consulted beat officers, on whose shoulders such decisions normally fall. Once he slapped on the handcuffs they might well have decided that keeping their distance was the wisest approach. Dr. Gates is preoccupied with matters of race so it’s not surprising that he detected racial animus from the very start. Race may indeed have had a lot to do with how he behaved. But the outcome seems much more the product of two very hard heads knocking, compounded by the absence of safety nets for Dr. Gates, whose family wasn’t around, and for an overheated cop who was well outside his normal comfort zone. Considering all the rhetoric that the episode has spawned let’s hope that these simple factors aren’t overlooked. Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED POSTS He Said That She Said, But Did She? Good Cop / Bad Cop To Err is Human UPDATES 8/21/09 Inquiry panel to “identify lessons to be taken from the circumstances surrounding the incident,” not conduct an internal investigation into what police did. 8/10/09 Another black Harvard professor, S. Allen Counter, claims that he was mistreated by Cambridge police three years ago, and that “the word around Harvard is never step outside your house with these guys,’’ meaning the police. 7/30/09 President Obama, Vice-President Biden, Harvard professor Henry Louis Gates Jr. and Cambridge PD Sgt. James Crowley had a beer at the White House. After the meeting Sgt. Crowley said “what you had today was two gentlemen who agreed to disagree on a particular issue.” 7/29/09 Lucia Whalen publicly denied mentioning race to Sgt. Crowley, directly contradicting what he wrote in his report. 7/27/09 911 tapes reveal that caller (Lucia Whalen) did not mention race other than to say that one person might be Hispanic. She also said “suitcases”, not “backpacks” as Sgt. Crowley wrote on the police report. Transcript of 911 tapes 7/26/09 Cops differ on whether they would have arrested Gates Home Top Permalink Share this post Posted 4/12/09 No longer a Senator or felon, Ted Stevens chuckles as prosecutors feel the heat
Why was Ted Stevens smiling? Known until his recent electoral defeat as the grumpy old man of the Senate, the 40-year veteran could hardly contain himself as the judge who presided over his trial appointed a special investigator to determine if Government lawyers up to and including the chief of DOJ’s Public Integrity Section should be held criminally accountable. Granting an unprecedented request by Attorney General Eric Holder, the judge also set aside Stevens’ October 2008 conviction for failing to disclose $250,000 worth of gifts. This surprise, extra-innings ending to what most assumed was a slam-and-dunk case is the latest twist in a pay-for-play scandal that has roiled Alaska politics and sent a handful of bribe-taking Alaska legislators to the Federal slammer. Two, former House Speaker Pete Kott and former Representative Vic Kohring are currently serving six and three and one-half years respectively. Stevens’ son Ben, a former president of the Alaska Senate is also under investigation but has not been charged. Stevens had been in the Feds’ cross-hairs for a long time. As the longest-serving Republican member of the United States Senate, and until 2005 chair of the all-important appropriations committee, he was the go-to guy for politicians looking to finance their pet causes and for lobbyists seeking to advance their clients’ interests. To make their case the Feds turned to William J. Allen, one of Stevens’ Alaska businessman friends and the same guy whose testimony sunk the others. An oil millionaire whose cash reserves set politicians’ hearts aflutter, Allen had pled guilty to bribery and was awaiting sentencing. Notably, the plea bargain stipulated that the Government would leave his children and assets alone. In July 2008 Stevens was indicted on seven counts of the general Federal lying statute, Title 18, U.S. Code, section 1001, for submitting Senate disclosure forms that left out gifts of a vehicle, home improvements and furniture amounting to $250,000. To demonstrate that these weren’t innocent omissions the indictment mentioned that Allen had asked Stevens to help on matters ranging from a National Science Foundation grant to building an oil pipeline. Defense attorneys vigorously objected, as Stevens had not been charged with bribery. But in the first of a series of timid rulings, the judge allowed the material in to demonstrate the defendant’s motive. Indeed, allusions to favors were critical to the case. As a Washington insider aptly put it, “no one is going to convict [Stevens] for just failing to file his financial reports.” Suggesting that there had been a quid-pro-quo was Job #1. As the trial got underway one of Allen’s former employees flew in from Alaska (against the wish of defense attorneys, the trial wasn’t held there but in Washington D.C.) Summoned by prosecutors, he was summarily sent home without taking the stand. Stevens’ lawyers, who were eager to question the man, were angry. They later found out that the witness would have testified, if asked, that Allen’s remodeling bills had been inflated to benefit another client. Stevens, everyone agreed, contributed $160,000 to a renovation that prosecutors argued was worth another $188,000. But how much of that had been padded? The defense moved for a mistrial. After scolding prosecutors, the judge accepted that dismissing the witness was an innocent mistake and let the trial proceed. Defense lawyers then homed in on Allen. If there was a balance, why didn’t he press Stevens for payment? Hadn’t the senator sent notes asking that he submit all bills? Well, yes, Allen conceded, but Stevens’ close friend, Bob Persons, told him to ignore the messages. Then the other shoe dropped. After the first faux-pas the judge reminded prosecutors of their obligations under Brady v. Maryland, which requires that the Government turn over all potentially exculpatory information to the defense. Defense lawyers were given an FBI agent’s notes. Allen told him that had Stevens been billed, he would have probably paid. How did the judge react? With another scolding. On the next day Allen’s account of his conversation with Parsons was more detailed. Stevens was only pretending that he wanted to be billed to cover his back. These devastating remarks totally surprised the defense. During trial both sides are supposed to exchange their witnesses’ statements in advance. By tailoring their star witness’s testimony on an ongoing basis prosecutors were making it impossible for the defense to prepare let alone investigate. Each time that Allen took the stand promised another got’cha. Stevens’ lawyers again moved for a mistrial. Again it was denied. In this court three times was not a charm. At trial’s end the judge told the jurors that they could consider the government’s misconduct while deliberating. Whatever good that did was probably outweighed by the poor performances of Stevens and his wife on the stand (she came off as haughty and he kept losing his temper.) No one was surprised when Stevens was found guilty on each count. And that would have been that except for a remarkable event. One of the FBI agents on the case, Chad Joy, filed a Federal whistleblower complaint alleging that the prosecutors’ inadvertent “mistakes” (e.g., sending the witness away, concealing exculpatory evidence) were very much on purpose. Joy also accused other FBI agents of accepting gifts from Allen, and a female agent of having an inappropriate relationship with Allen, visiting him alone and purposely wearing a skirt when he testified, a gesture that she called a “present.” The judge had finally heard enough. Realizing that he had been made the fool, he promptly held the entire prosecution team in contempt. The wheels of accountability finally began spinning. More withheld documents surfaced, including prosecutor notes that said Allen didn’t remember speaking with Parsons about why Stevens asked for the bills. It’s entirely possible that before this is over several prosecutors and FBI agents may find themselves without a job, perhaps even their liberty. CBS News on internal Justice Department inquiry
On April 3, five and one-half months after America’s newspaper of record demanded that Stevens resign his seat, an opinion piece on the trial entitled “Prosecutors Gone Wild” graced the New York Times op-ed pages. In an eloquent essay, former New Jersey attorney general John Farmer reiterated what every first-year law student knows: a prosecutor’s ultimate job isn’t to convict but to seek justice. (For an earlier post on this subject, see “Justice Was His Client.”) Still, after bad-mouthing Stevens for the better part of two years the Times couldn’t just let it go. On the same date that Farmer’s article appeared the Times editorialized that however grievous the Government’s behavior, “the prosecutor’s bad acts do not necessarily mean that Mr. Stevens was innocent of misusing his office.” In an adversarial system there are no “ties”: one side must by definition lose. When careers depend on winning, truth can suffer. High-profile investigations like the Stevens case are particularly likely to provoke agents and prosecutors to cross the line. With their futures and their agencies’ reputations at stake, one can only imagine the pressures they must have felt to make sure that Stevens was convicted. There’s a greater point to be made, and it’s not about Stevens, who hardly cuts a sympathetic figure. It’s about defendants who don’t have the resources to battle teams of Federal gumshoes. Consider a case that you’ve probably never heard of. In 1980 Tom Goldstein, a down-and-out California man was convicted of murder. Evidence against him included an eyewitness and a jailhouse informant who swore that Goldstein confessed to the killing. It later turned out that the eyewitness had been coached by detectives and that the informant, who denied getting a “deal” for testifying, in fact had a long string of such deals, a key point that prosecutors never disclosed. Goldstein served 24 years before he was exonerated. Our vaunted adversarial system is responsible for many such goofs. Yet we’re so convinced that it’s the best way to get at the truth that contrarians are likely to get a scolding. As the trial wound to its conclusion, a Times writer, in an example of baiting worthy of Walter Duranty, accused Brendan Sullivan, Stevens’ principal lawyer, of cynically exploiting Government missteps: The principal tactic used by Mr. Sullivan has been to present a surplus of outrage after finding examples where prosecutors failed to live up to their obligations, first laid out in a 1963 Supreme Court opinion, to disclose to defense lawyers any information that could help disprove the charges. Discovering one such instance of withheld information, Mr. Sullivan threw down his papers on the lectern. “I can’t do my job,” he complained, assuming the expression of someone whose recent meal of bad oysters had just made itself known. Justice isn’t a game where you’re supposed to hide your hand. Yet thanks to human nature that’s often how it’s played. Let’s hope that exposing the system’s dark underbelly spurs some long-needed reform. Perhaps it’s fortuitous that Stevens was a rich guy. This could be that one time when benefits really do trickle down. Did you enjoy this post? Be sure to explore the homepage and topical index! UPDATES 6/19/09 Stevens, other debacles seriously disrupt DOJ public integrity prosecutions 6/5/09 DOJ says corruption sentences of two Alaska State legislators tainted by same failure as in Stevens case; asks for their release 5/18/09 Prosecutors often fail to disclose exculpatory information 4/28/09 Montana Federal judge berates prosecutors for purposely withholding evidence favorable to defense. (5/8/09) Everyone acquitted. 4/15/09 Reacting to this case, Attorney General orders prosecutors retrained on rules about sharing evidence 4/14/09 Prosecutors accused of hiding exculpatory evidence in case against female astronaut 4/13/09 Time pressures and lack of supervision cited for prosecution’s downfall Home Top Permalink Share this post Posted 2/8/09 YOU CAN TAKE THE MAN OUT OF CHICAGO... President Obama’s appointments belie his reformist message Who says that life doesn’t afford second chances? With a one-time tax delinquent, Timothy Geithner, installed as Treasury secretary, and Eric Holder, the former Justice official who helped Marc Rich get a pardon confirmed as Attorney General, no one can say that our God-fearing new President doesn’t believe in the power of redemption. Geithner’s troubles date back to the period following his service as a Treasury undersecretary in the Clinton administration. In 2006 an I.R.S. audit revealed that Geithner had not remitted required self-employment taxes in 2003 and 2004. To settle things he coughed up more than $20,000. In fact, Geithner was liable for more, but the I.R.S. couldn’t force him to pay because absent proof of fraudulent intent the law limits imposing back taxes to three years. And as one might expect, Geithner didn’t volunteer. When nominated to Treasury’s top spot Geithner experienced a remarkable transformation. Within days a check for $25,970, covering taxes and penalties for 2001 and 2002 was in the hands of the I.R.S. As one might expect, he explained the lapses -- as well as $4000-plus he incorrectly claimed in dependent care credits -- as innocent errors of omission. Thanks to a forgiving boss, Geithner now leads a department whose employment standards (as your writer, a former Treasury man well knows) would instantly disqualify any ordinary applicant with delinquencies an iota as serious. Although the blunder that reddened Eric Holder’s face is different, its implications are remarkably similar. For reasons that either did or didn’t have anything to do with Marc Rich’s contributions to the Democratic Party and the Clinton library, President Clinton was anxious to grant a pardon to the indicted tax cheat, then in his second decade of living it up in Switzerland while thumbing his nose at the Feds. Holder declared himself “neutral, leaning towards favorable” on the question, a sleigh of words that he later explained meant that he had been neither for nor against granting an incalculable benefit under circumstances that would make a Chicago alderman blush. Or not. Everyone out of diapers knows that Holder’s new boss is an experienced hand at Windy City politics. President Obama is also a lawyer, which to some may sound like a frightful combination. To his credit, he came in with a reformist zeal the likes of which we haven’t seen since Jerry “Moonbeam” Brown was squiring Linda Ronstadt. Now, though, we’re left wondering. Does the President agree that our nation’s chief financial and law enforcement officers should be held to the highest possible standards? Or does our popular new leader suffer from the same moral blind spot that nearly brought down his Democratic predecessor? These are important questions. Treasury and Justice are responsible for enforcing the bulk of our nation’s laws. If we even half-expect tax sleuths and G-men to follow the straight and narrow their leaders must be men and women of irreproachable integrity, indisposed to draw fatuous, lawyerly distinctions between right and wrong -- distinctions, one might add, without which Secretary Geithner and Attorney General Holder could have never been confirmed. Maybe the message is finally getting out. Only a day after President Obama declared his wholehearted support for Tom Daschle’s confirmation, the ill-starred nominee for Health and Human Services bowed out. Suffering from serious bouts of taxitis and multiple personality (he couldn’t make up his mind whether he had been a lobbyist or not) the former Majority Leader apparently concluded that his web was too tangled for even Obama’s talented spinners to successfully parse. Our promising new President’s missteps are a shaky start for someone who led the world to believe that in his Administration, “I” wouldn’t stand for the selfishness that led to the present crisis but for the integrity that is the cornerstone of American democracy. It’s the reason why millions of new voters proudly marched to the polls and why an old white guy gave him two-hundred bucks. Please, President Obama, don’t let us down. You’re not in Chicago anymore. Did you enjoy this post? Be sure to explore the homepage and topical index! Home Top Permalink Share this post Posted 9/14/08 WHAT DOES IT TAKE TO GET FIRED? When citizen review panels overrule the Chief, discipline suffers In a busy hospital emergency room in August 2005, a 60-year old stabbing victim sat in a wheelchair, yelling and cursing. Maybe he didn’t think that he was being treated quickly enough. Nurses asked police to intervene. A uniformed officer obliged, handcuffing the man to his wheelchair and then whaling on him with a sap. It was all caught on videotape. After an internal investigation the Chief fired the officer and referred the matter to city prosecutors. In time the cop pled guilty to misdemeanor battery and got eighteen months probation. Case closed? Hardly. In Chicago, where the incident occurred, a panel of nine citizens known as the Police Board has the last say on police discipline. Despite the officer’s on-duty assault conviction it set aside his discharge, instead suspending him for a mind-boggling two years. Why? The Board wouldn’t say -- by law, it doesn’t have to. However, the officer had thirteen years of experience and until this dreadful incident his record was supposedly “unblemished.” Earlier this year the cop’s record acquired another blemish when the Feds charged him with civil rights violations for beating the handcuffed man. That case is pending. Meanwhile the officer remains suspended. It’s not the first time that the Chicago Police Board overruled a firing decision. According to the Chicago Sun-Times, between 2003 and 2007 only twenty-one out of eighty officers canned by the Superintendent were actually let go. Put another way, a bunch of amateurs overruled the “Sup” three times out of four. Cops whose jobs they saved include a diagnosed “alcoholic and manic-depressive” who returned to duty from a suspension drunk and belligerent (his original offense was to handcuff a bartender who refused to serve him); an officer who gave a friend photographs of a woman from a police database (the friend then tried to kill her); a cop who ignored a bank robbery in progress while buying bottled water in a convenience store (she did say she dialed 911); and a Lieutenant with a recent misdemeanor conviction for harassment who hounded a woman whose particulars he got from a police report, then reportedly lied about it. Citizen review panels are byproducts of the sixties and seventies, when episodes of unimaginable corruption (think Serpico) and repeated tangles between officers and minorities led the Justice Department to use civil rights and other laws to fight police brutality and misconduct. Federal policing of the police continues to the present. (One recent example, the Rampart scandal, led to Federal oversight of the Los Angeles Police Department, which is still in effect.) Yet something odd happened on the way to the Forum. Injecting citizens into the disciplinary process was intended to counter the “take care of our own” mentality prevalent in policing. It was meant to stiffen discipline, not relax it. But to the glee of those who bitterly fought civilian review, it turns out that many citizens are disinclined to mete out harsh sanctions to police officers, even when they grievously overstep. Why is that so? Citizen reviewers are normally appointed by politicians, giving local power structures, including powerful police unions, great influence over the authority and composition of the panels. Lacking personal knowledge of the police workplace, citizens may be unduly influenced by the accounts of men and women who do an often unpleasant and risky job. What happens on the streets is complex and nuanced, and over time a Stockholm-like syndrome may set in, transforming board members (even those who didn’t begin as “pro-police”) into champions of the accused. Deciding whether a cop should be fired is also a sobering task. So it’s no surprise that when given a choice Chicago’s panel invoked punishments of as long as three years suspension in lieu of termination What does Chicago’s top cop think? Jody Weis was brought in to clean up a department racked by abuse and misconduct. A retired FBI official, he’s clearly no fan of the Board, whose second-guessing he says undercuts his authority and hurts morale, in effect making officers accountable to no one: “At the end of the day it is the department which is often looked at as accountable for our personnel. We have to make sure we can discipline our folks in a manner that is fair and consistent. I can’t overstate how seriously we take separation cases....I should be the final decision-maker.” Chicago’s example may be extreme, but it has a parallel in the West. In Los Angeles allegations of serious police misconduct are heard by an awkwardly named “Board of Rights” (guess whose rights that means) comprised of two command officers and, since Rampart, a private citizen. Their punishment decisions can be modified by the Chief, but in only one direction: down. What’s worse, California law keeps police disciplinary matters (but not criminal cases) private, meaning that even the most serious accusations are handled in secret. Only days ago the Orange County (Calif.) Sheriff’s Department refused to say whether a Deputy who left after a widely-publicized jail fiasco resigned or was fired. In Federal law enforcement agencies and in most State and local police departments decisions whether to retain or fire an employee rest with their chief executives. (External appeals, say, with a city personnel commission or the courts are always possible.) Not in Chicago and Los Angeles, where Chiefs are denied the equivalent of a last word. There’s no doubt that in practice these arrangements reduce the respect and -- let’s face it -- the fear that officers have of their Chiefs. And as every parent knows, a little bit of fear can be a very good thing. Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED POSTS What Should it Take to be Hired? UPDATES 4/14/09: Prosecutors accused of failing to disclose exculpatory evidence in case against female astronaut Home Top Permalink Share this post Posted 9/7/08 Saying “no” costs Alaska’s top cop his job
In his second year as Alaska’s public safety commissioner, Walt Monegan thought that his meeting with Governor Sarah Palin’s chief of staff would be about security for her forthcoming picnics. Instead he was asked to take over the Alcoholic Beverage Control board. When he politely declined -- after all, he already had his dream job -- he found out that, no, he didn’t. Monegan, a former Anchorage police chief, was hired by the new Governor shortly after her 2006 election. By all appearances he took to his duties well, even earning plaudits from the police union. So what happened? According to Palin’s flacks she just wanted to move the department “in a new direction.” But within days the Anchorage Daily News was reporting another reason: Monegan was let go because he refused to fire the Governor’s ex-brother in law, a State Trooper who was going through a nasty custody battle with Palin’s sister. Palin instantly denied it. “To allege that I, or any member of my family, requested, received or released confidential personnel information on an Alaska State Trooper, or directed disciplinary action be taken against any employee of the Department of Public Safety, is, quite simply, outrageous.” Skeptical journalists began looking into the story. In a series of eye-popping exposes, reporters discovered evidence of a vendetta against the trooper dating back to the days when Sarah Palin was a small-town mayor. A year before her election to Governor she, her husband and family had accused the trooper of misdeeds ranging from drunken driving (a crime that Palin’s hubby was once convicted of) to zapping a son with a Taser. In March 2006, following an inquiry that the Daily News characterized as befitting a homicide investigation, the trooper was suspended for ten days, later reduced to five. As for the trooper, he remains on the job. His only public comment came recently, when he told a CNN news crew that he doesn’t harbor Palin any ill will but feels “extremely stressed” that confidential personnel actions were revealed and that his past is now fodder for gossip. Evidence of shenanigans continues to mount. Palin was recently forced to place one of her top aides on leave for pressuring a Trooper lieutenant to move against her ex-brother in law (she denies being the instigator.) Palin, now a vice-presidential candidate, doesn’t seem worried. Deferring to the demands imposed by her new status, the Alaska legislative body investigating Monegan’s firing decided not to subpoena Palin, leaving her to be questioned by investigators. Even that seems uncertain, as the private lawyer the State hired to defend the Governor has challenged the legislature’s authority to look into her conduct, claiming that it’s only a personnel squabble. Meanwhile Alaska still lacks a permanent top cop. Monegan’s replacement, former Kenai police chief Charles Kopp only lasted two weeks, when revelations of an alleged past incident of sexual harassment forced him to resign. At this writing Palin’s appointed a panel to search for her third public safety commissioner in three months. Whomever they select, the underlying problem won’t go away. To Governors and their staffs top cops are just like any other political appointees, who are expected to cooperate and do what’s asked. An excellent example of what can happen when State police chiefs “go along to get along” is last year’s Troopergate imbroglio, where disgraced former New York Governor Eliot Spitzer got former State Police Superintendent Preston Felton to use his officers to try to dig up embarrassing information against Spitzer’s arch-nemesis, Senate majority leader Joseph Bruno. Although Troopergate wasn’t what led Spitzer to resign from office this past March (his downfall was a big bucks call girl), it precipitated a wide-ranging investigation by the State Commission on Public Integrity, resulting in heavy fines and the end of several careers, among them Superintendent Felton’s, who retired. Lest one think that the West is above such problems, consider the travails of the celebrated California Highway Patrol. In 2008, following a three-year tenure charitably described as “troubled,” Commissioner Mike Brown resigned. He had replaced Dwight “Spike” Helmick, whom Governor Schwarzenegger elbowed aside amidst allegations that command officers were taking unearned medical retirements. Brown was then done in by scandals involving conflicts of interest and the improper awarding of millions of dollars in contracts. After bringing in the failed leader’s deputy, Joseph Farrow, to run the CHP, Schwarzenegger promoted Brown to be deputy secretary for public safety of California’s Business, Transportation and Housing agency, which oversees the CHP. Naturally, Brown got a raise. Hubert Acevedo must be laughing his head off. Now police chief in Austin, Texas, Acevedo recently settled a lawsuit against the State of California for $995,000. Who authorized the payment? Shwarzenegger. He had little choice, as an investigation by the State Personnel Board confirmed that Acevedo, once the CHP’s number two man in Los Angeles, had been mercilessly harassed for blowing the whistle on the shenanigans that forced Hemlick to resign. Among those cited for acting “to cause maximum stress, embarrassment and damage to [Acevedo’s] reputation” was Helmick. One could go on, but the point’s been made. Most of the academic attention on police misconduct and corruption has been focused on local cops. But it seems that there may be equal reasons to be concerned about supposedly more “professional” State agencies, and particularly at the top, where political considerations can nurture corruption and self-dealing. Just how far this problem extends is an issue that needs to be addressed. Did you enjoy this post? Be sure to explore the homepage and topical index! Full disclosure: this writer contributed $200 to Senator Obama’s presidential campaign Home Top Permalink Share this post Posted 7/20/08 LYING: THE GIFT THAT KEEPS ON GIVING Deceiving suspects to get them to confess can backfire In 2003 a sixteen-year old girl was shot in the face by a gang member. Five years later it’s revealed that a few months before her killing an LAPD homicide detective told another member of the same gang that she fingered him for a murder. Except that she hadn’t. "It became clear that we needed to add more pieces to our training," said LAPD’s new chief of detectives, Charlie Beck. What made it “clear” wasn’t the department’s own digging but a remarkable article in the Los Angeles Times that revealed the detective and his then-partner altered a photospread to make it look like someone had identified hardcore gangster Jose Ledesma, 19. Then these officers did the incredible. To get Ledesma to confess, they showed him the doctored six-pack and said that sixteen-year old Martha Puebla was the one who circled his face and wrote “those is the guy who killed my friends boyfriend.” All that managed to accomplish was to get Ledesma to put a “hit” on the girl the next evening from the jail pay phone. How is all this known? The call was recorded. Unfortunately, this particular conversation wasn’t listened to until after the young woman’s murder. Forget CSI. In many shootings (think walk-up and drive-by) there’s hardly any physical evidence left behind. There are no fingerprints or DNA. Although there is a bullet, the gun that fired it must usually be found through other means before a comparison is possible. Witnesses will always be a detective’s best friend. But for the very reason demonstrated by Martha Puebla’s murder, witnesses to gang crimes are often too scared to come forward. According to the Police Executive Research Forum, an organization sponsored by the nation’s largest police departments, witness intimidation is the main obstacle in solving violent crime. Boston’s police commissioner was particularly blunt, claiming that fear of retaliation is why his city cleared less than four in ten homicides in 2006. There is no greater pressure to make an arrest than in gang-related homicides. Citizens and politicians are unlikely to let police off the hook just because there are no witnesses or physical evidence is lacking (no one who watches TV crime shows would believe that, anyway.) In large, busy departments the demands on detective time are so great that should a viable suspect be developed the rush is on to get a confession. It’s precisely at that point when professionalism is most at risk As we’ve mentioned elsewhere (for example, see Rampart), pressures to produce can easily distort how police work gets done. Taking shortcuts such as lying to suspects to get them to confess places forces into play whose consequences may be impossible to contain or predict. Lying can lead innocent persons to confess and falsely accuse others, distracting investigators and delaying or preventing the capture of the real perpetrator. For an example look no further than David Allen Jones, a mentally retarded man who under pressure from LAPD detectives falsely confessed to raping and killing two prostitutes. After serving eleven years Jones was freed when another detective used DNA to prove that the real murderer of these two women, and at least eight others, was Chester D. Turner, then in prison on a rape charge. Turner was convicted of the ten murders in 2007. Many detectives feel that lying to suspects is beneath them. Others turn to it as a last resort. Commonplace lies include false claims that fingerprints were recovered or than an accomplice confessed. Drawing in innocent citizens is, as Deputy Chief Charlie Beck asserts, rare. But simply because "we have never had this issue arise before” begs the question of what other kinds of lies detectives tell, what consequences they might have, and whether his intention to train detectives to do a cost-benefit analysis before lying (police always like to “train” out of problems) is a realistic solution or just a way to get outsiders off the LAPD’s back. One thing’s for sure. Once a lie’s told, the professionalism of an investigation and the investigator are instantly thrown into question. Even the most “acceptable” lies can prove embarrassing and make police look inept, so they’re seldom if ever mentioned in reports. Naturally, pretending like nothing happened presents its own set of ethical and legal dilemmas. Should ruses be kept from the defense? the Court? Juries? Must they be documented and preserved just like the confession itself? There is a simple solution: DON’T LIE. Many fine detectives stick to that rule throughout their careers. Maybe it’s time to consider it at the LAPD. Did you enjoy this post? Be sure to explore the homepage and topical index! Click here to view the lawsuit filed against the LAPD on the Martha Puebla case. RELATED POSTS Home Top Permalink Share this post Posted 6/28/08 A prosecutor chooses between what’s right and what’s expedient Twenty-one years as a prosecutor in the Manhattan D.A.’s office had left Daniel Bibb with little patience for law school abstractions. He was there for one reason, and one only: to serve the citizens of New York. And until this particular day in 2005 he had never questioned his purpose, nor those of his colleagues. In 1990 a bouncer was shot and killed and his supervisor was wounded at the Palladium nightclub in New York City. Suspicion quickly fell on two men, David Lemus and Olmedo Hidalgo. Despite witnesses who swore that the accused were elsewhere both were convicted and got twenty-five to life. Evidence of their innocence continued to accumulate, and by the time that they passed their fifth anniversary in prison (“celebrate” seems the wrong word) it seemed far more likely that the real killers were two local gangsters, Joseph Pillot and Thomas Morales, aka Jimmy Rodriguez. Eventually the Feds got involved, and as the episode turned into a cause célèbre the D.A. himself, the famous Robert Morgenthau, put Daniel Bibb on the case. Spend all the time you need, he was told, and get to the bottom of this mess. Let the hammer of justice fall where it might. That’s exactly what he did. And as he sat in his superiors’ office two years later, he was certain as could be that the wrong men were in prison. The evidence against them had been thoroughly debunked. What’s more, Pillot had confessed and implicated Morales, and his confession was corroborated. Far from being happy at his good work, Bibb’s bosses were appalled. Freeing the men would be a major embarrassment. Lemus and Hidalgo had asked for a new trial. Go to the hearing, the prosecutor was told, and fight against their release. Remember who you represent! Lawyers are sworn to zealously pursue the interests of their clients. For criminal defendants that’s to avoid conviction, or if convicted to minimize any penalty that might be imposed. But Daniel Bibb felt caught in a bind. Just who was this “client” whose interests would be served by leaving innocents in prison, and, not incidentally, letting the guilty go free? No, he decided, this was an injustice that must be corrected. Worried that if he stepped aside another prosecutor might succeed in keeping the wrong men locked up, Bibb remained on the case. He had decided to throw the fight. Bibb started helping Lemus’s and Hidalgo’s lawyers however he could. He in effect became Defense Lawyer Bibb, finding new witnesses and suggesting strategies to counter the prosecution’s case -- his case. In time his bosses let him dismiss the charges against Hidalgo, but they stubbornly insisted on proceeding against Lemus. Bibb had had enough. He quit and became a defense attorney. His transformation was complete. Lemus got his new trial. When he was acquitted in December 2007 Bibb finally felt free to come forward with his story. Then the arrows started flying. From his comfortable office at New York University a professor of legal ethics accused the veteran prosecutor of failing to represent his “client”: “He’s entitled to his conscience, but his conscience does not entitle him to subvert his client’s case. It entitles him to withdraw from the case, or quit if he can’t.” That might make sense if prosecutors really had “clients.” One thing’s for sure -- they’re not ordinary lawyers. Unlike defense attorneys, prosecutors must share exculpatory and mitigating evidence with the other side (Brady v. Maryland). Ethical guidelines also require them to correct miscarriages of justice. According to the American Bar Association’s Model Rules of Professional Conduct, prosecutors who learn of “new, credible and material evidence” that reasonably suggests someone was wrongly convicted must investigate, and should evidence of innocence become “clear and convincing” they must act. Prosecutors are different. They’re charged with doing justice regardless of what their superiors, the police or the public want. More than two decades earlier, it was that transcendent goal that encouraged a young man fresh out of law school to take on the role. That he had to leave it to remain true to its precepts was the final irony of this sad affair. Did you enjoy this post? Be sure to explore the homepage and topical index! UPDATES 3/31/09: Wrongfully imprisoned for nearly 14 years, Olmedo Hidalgo gets $2.6 million 3/5/09: NY State Bar clears Daniel Bibb of misconduct for throwing the case Home Top Permalink Share this post Posted 6/22/08 Pornography, a Federal judge discovers, is in the eye of the beholder Once upon a time (actually, May 2001) Judge Alex Kozinski of the U.S. Ninth Circuit Court of Appeals was terribly angry. Federal court employees around the country had been downloading large, naughty files from porn sites, so to stop them the pinheads in Washington installed filters and remote monitoring devices. This enraged the good judge, who insisted that his staff -- naturally, including himself -- be able to cruise the Internet unmolested. Judge Kozinski again made news in 2003. This time it was because of his unusual relationship with Michael W. Hunter, a California inmate on death row for murdering his father and stepmother. Hunter read an article that Kozinski wrote about the death penalty and they started corresponding. Kozinski later visited Hunter. They discussed other death row prisoners, including James Richard Odle, for whom Kozinski had ordered a competency hearing. Hunter (he was eventually re-sentenced to life without parole) later told California State investigators that Kozinski asked him whether Odle was “really crazy.” That worried then-California Attorney General Bill Lockyer enough to file a motion asking that Kozinski be barred from ruling on capital appeals in California. This got the good judge mad. Lockyer’s actions were “crazy”! Three years later Judge Kozinski got -- you guessed it -- mad as a hornet. Mary Schroeder, then Chief Judge of the Ninth Circuit, had twice dismissed a disciplinary case against Los Angeles Federal District Court Judge Manuel Real. Judge Real, a controversial jurist, had allegedly interfered in the bankruptcy case of a “comely” female probationer whom he had been personally supervising. Judge Kozinski’s dogged pursuit of the matter eventually got Judge Real censured (Congress even began an impeachment process against Real. It went nowhere.) Having established his reputation as a square-shooting disciplinarian, Kozinski became Chief Judge of the Ninth Circuit Court of Appeals in November 2007. In this position he oversees the Court’s business side, assigns the writing of opinions and supervises its judges. Everything was going swimmingly until that fateful day when he took a swing at being a trial judge. According to the L.A. Times Appeals Court Judges fill extra time on their hands hearing regular cases. That’s how Judge Kozinski recently wound up presiding over the trial of Ira Isaacs, an accused pornographer whose product is supposedly so vile that it even offends the citizens of SoCal. (Isaacs insists that the videos he makes and markets are “art,” thus exempt from regulation. Even so he’s been quoted as saying “I think I’d freak out if I had to watch six hours of the stuff.” He’s referring to the rancid displays of bestiality and defecation that twelve lucky jurors will get to see.) On June 11, 2008, only a couple of days into the trial, Judge Kozinski called a halt to the proceedings. He had learned that the L.A. Times was about to publish an article suggesting that he had more than a professional interest in sexually titillating materials. Marcy Tiffany, the judge’s wife for more than thirty years and a respected attorney in her own right, jumped to her husband’s defense. In a long letter to a popular blog she called the Times article “riddled with half-truths, gross mischaracterizations and outright lies.” So what really happened? Well, like other tech-savvy families the Kozinskis have their own web-enabled storage device, allowing them to view and upload data from wherever they are. (Judge Kozinski told the Times that he occasionally shared files with others.) Among the materials were stills and videos depicting sexual, um, stuff, some of which the judge suggested might have been posted by an adult son. If you believe the Times, the materials were offensive and pornographic (one, a step-by-step “instructional video” shows a woman shaving her public hair.) If you believe Judge Kozinski, some were offensive but “funny.” If you believe Mrs. Kozinski, what little there was, was “comic-sexual”: “The fact is, Alex [her husband, not the son] is not into porn -- he is into funny -- and sometimes funny has a sexual character. The tiny percentage of the material that was Whatever their educational value, how did the files get out? The villain, according to Mrs. Kozinski, is Cyrus Sanai, a Beverly Hills lawyer whose bitter dispute with the Ninth Circuit supposedly led him to target her husband for retaliation. Whether he gained access through reverse engineering (as Mrs. Kozinski wrote) or, as seems more likely, because the directories weren’t password-protected, Sanai did the natural thing: he called the Times. Their article stunned prosecutors, who immediately filed a motion asking Judge Kozinski to recuse himself. Against the defendant’s wishes (Isaacs praised the judge during a radio interview) Kozinski not only called a mistrial but referred the whole mess to, yes, those pinheads in Washington. They in turn dumped it on a panel of Federal judges in Philadelphia’s Third Circuit. As such things are handled confidentially, unless Kozinski is prosecuted or impeached we may never know what they decide. Did he violate Federal law or the canons of his office? Did his acts discredit the judiciary? Taking at face value Judge Kozinski’s statements that he wound up on the porn case strictly by chance, one would think that given his personal interest in salacious material he would have declined the assignment. It’s not only defendants who are entitled to a fair trial. Had Mr. Sanai not come forward, would the People have gotten a fair shake in court? Judge Kozinski is not your average jurist. After graduating with honors from UCLA Law School he clerked at the Supreme Court, then served in the Reagan White House and at the Federal Claims Court before being appointed to the Ninth Circuit at the ripe old age of 35. A prolific writer with an eclectic taste, he’s published in everything from staid law reviews to Forbes (on building computers) and the New Yorker (on the death penalty). During his distinguished career Judge Kozinski has developed something most jurists decidedly lack: a fascinating public persona. We’ll have to see how well it serves him in this latest challenge. Did you enjoy this post? Be sure to explore the homepage and topical index! Pre-2008 accounts from L.A. Times Historical on ProQuest (9/20/2001, 2/16/03, 12/23/06) UPDATES 10/27/09 Kozinski apologized again, this time for sending crude and raunchy jokes to persons on his Internet “gag list”. A panel of judges said that his apology was enough and closed the case. 7/2/09 Closing its investigation, a panel of judges formally admonished Kozinski for embarrassing the judiciary by carelessly allowing sexually explicit materials to be available over the Internet. They took into account his extensive apologies over the matter. Order Home Top Permalink Share this post Posted 5/18/08 FOLLOWING THE RULES OVER A CLIFF Legal ethics aren’t an end: they’re a means Imagine that you’re a defense attorney. What do you do if your client, who is facing murder charges, tells you that he did it and that his alleged accomplice, who has a different lawyer, wasn’t involved? "I never told nobody that I was an angel,” says Lee Hunt, who has insisted for twenty-two years that he is innocent. In 1986 Hunt and Jerry Cashwell were separately tried and convicted for the execution-style killings of a North Carolina man and his wife, supposedly over a drug deal gone sour. Evidence against Hunt consisted of testimony by two witnesses who got deals on unrelated cases and an FBI forensic scientist who matched the lead of bullets removed from the victims to an ammunition box tied to Cashwell. Cashwell got the death penalty; Hunt, life in prison. What Hunt’s jurors didn’t know was that his alleged accomplice told his lawyer that he shot the victims during a quarrel that had nothing to do with drugs. Hunt, he insisted, wasn’t involved -- he wasn’t even there. But to protect Cashwell, his lawyer kept mum. Think that’s rare? In 1982 Alton Logan was convicted of killing a security guard at a Chicago-area MacDonald’s. He was identified by three witnesses who picked him out of a photo lineup. There was no other evidence. Meanwhile, a man named Andrew Wilson who was awaiting trial for killing two police officers and had no connection to Logan told his lawyers that he was the one who murdered the guard. Deciding that they couldn’t break Wilson’s confidence, attorneys Dale Coventry and Jamie Kunz told no one. Luckily, Logan got life instead of the chair. In 2003, seventeen years after Lee Hunt was unjustly locked up, Cashwell, the real double-murderer, told his attorney that “he felt bad about what happened to [Hunt].” Not long after he committed suicide in prison. In 2007, twenty-six years after Alton Logan was unjustly locked up, Wilson, the security guard’s real killer, died in prison from natural causes. After Cashwell died his lawyer came forward. It did little good. Not only was Hunt’s bid for freedom denied, but the judge referred the lawyer to the State bar for violating his dead client’s confidence. (The complaint was recently dismissed.) Hunt’s only remaining hope lies with the State Supreme Court. Logan had better luck. Wilson’s lawyers had their client sign a waiver allowing them to reveal his story when he died. Based on this and other factors a judge set aside Logan’s conviction and released him on bail. Amazingly, Logan’s current lawyer agrees that the cop-killer’s attorneys were right to keep quiet. “I wish there had been a way this could have come out earlier,” he said. “Under the…Illinois ethics code, I think the only way would have been if [the real killer] had released his lawyers earlier.” Logan’s new trial date hasn’t been set. Let’s look at this “ethics code” that lawyers seem so keen to obey. Are its rules really that strict? Here’s what the Illinois Supreme Court’s Rules of Professional Conduct say about confidentiality: Rule 1.6. Confidentiality of Information (a) Except when required under Rule 1.6(b) or permitted under Rule 1.6(c), a lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure. (b) A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm. (c) A lawyer may use or reveal: (1) confidences or secrets when permitted under these Rules or required by law or court order; (2) the intention of a client to commit a crime in circumstances other than those enumerated in Rule 1.6(b); or (3) confidences or secrets necessary to establish or collect the lawyer's fee or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct.... Illinois’ rules are commonplace. Lawyers may breach a confidence with their client’s consent. Lacking that, they may only violate confidentiality to prevent a new crime from occurring (mandatory disclosure if death or serious bodily harm may result, optional otherwise), to help collect their fees, or to defend against a lawsuit. On first blush it seems that the bad guys’ lawyers were right to keep mum. Yet confidentiality doesn’t trump everything. Other rules forbid attorneys from making “a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false.” Lawyers must also disclose to the court “a material fact known to the lawyer when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.” Surely there’s some wiggle room in all this! But let’s not quibble. If we must cross a double-yellow to avoid a horrible accident, we do it. If we must bend a rule to avoid consigning an innocent to decades of imprisonment, we do it. Ethical rules are supposed to further justice, not frustrate it. They’re means, not ends. There are plenty of talented lawyers who could put their heads together and craft solutions that would keep the legal system on an even keel while helping avoid the calamities that befell Lee Hunt and Alton Logan. Wrongful convictions have shaken citizen confidence in the criminal justice system. And now we know that the problem is even worse than it appears, with the system enshrining behavior that inevitably leads to corrupt outcomes. How can we in good conscience ask judges and jurors to render decisions while hiding from them the fact that they might be dooming an innocent person? When interviewed by “60 Minutes” one of the cop-killer’s lawyers said that “there may be other attorneys who have similar secrets that they’re keeping.” That’s a frightening thought. For humanity’s sake, would they please speak up? Did you enjoy this post? Be sure to explore the homepage and topical index! UPDATES 01/19/10 As the FBI continues reviewing 2,500 cases where analysts used a now-discredited bullet lead comparison technique, judges continue releasing persons convicted on their testimony. Home Top Permalink Share this post Posted 11/13/07 (EX-)COMMISH LEAVES CARONA IN THE DUST How law enforcement executives are selected is crucial With his indictment for secretly pocketing more than a half-million dollars from a mob-tainted waste disposal firm and a New York City developer, former Big Apple police commissioner Bernard Kerik has bumped our very own Sheriff Mike Carona from the #1 spot in this year’s allegedly-crooked-top-cop sweepstakes. According to the Feds, Kerik’s income tax bloopers date back to 1999 when he was in charge of the New York City Department of Corrections. Kerik, a former NYPD detective, was appointed to this position by Rudy Giuliani after serving as the Mayor’s driver/bodyguard. Pooh-poohing doubts about Kerik’s qualifications, Giuliani then promoted him to be the city’s Police Commissioner, a post the protégé held until December 2001 when his benefactor left office. And there was more. Three years later, under pressure from -- yes -- Giuliani, President Bush nominated Kerik to head the Department of Homeland Security. Kerik had to withdraw when word leaked that he had employed an illegal alien as a nanny. Sadly, he didn’t get his application form back, leading to another count in the indictment, accusing him of perjury for not disclosing his under-the-table earnings. What are Kerik’s prospects? His ability to mount a convincing defense is complicated by his 2006 plea of guilty to misdemeanors for leaving out a loan and a gift from the same sources cited by the Feds on his New York City conflict-of-interest reports. Despite everything, his friendship with Giulani seems unaffected, and to this date the Presidential contender dismisses his buddy’s infractions as harmless oversights. The selections of Kerik and Carona for high-level law enforcement jobs reflect an appalling unconcern for the skills and experience required by such lofty positions. Both were plucked from obscurity: Carona, by the Orange County Republican Party; Kerik, by an influential politico. Neither had to submit to questioning by independent experts. And neither endured a rigorous pre-employment investigation (well, not until Kerik got tripped up by Homeland Security.) And just what were their backgrounds? Kerik had been a street cop and detective. He lacked a bachelor’s degree, a requirement for promotion to NYPD management slots. Before running for Sheriff, Carona’s entire career was served in the Orange County Marshal’s office, a now-defunct agency whose functions were limited to process service and courtroom security. (Carona’s lack of law enforcement experience was pointedly noted in the campaign bio of his rival, Santa Ana Police Chief Paul Walters: “27 years of real experience, leading real cops, and fighting real crime”.) It’s true that exhaustive nationwide searches, the normal practice when hiring a major city chief, don’t always produce ideal results. Consider, for example, Willie Williams, whose tenure at LAPD many think a disaster. Still, rigorous screening is vastly preferable to its alternative. After suffering through the abortive nomination of Harriet Miers to the Supreme Court and the disastrous appointment of Alberto Gonzalez as Attorney General, Americans are ready for a President who doesn’t need to pack his chums around him to feel secure. Are you listening, Rudy? Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED POSTS Mission Not Accomplished Carona Five, Feds One (But the Feds Won) UPDATES 11/05/09 Kerik pleads guilty to tax frauds and false statements, faces two years in Federal prison 10/21/09 As Federal trial looms, Kerik’s bail revoked for leaking sealed information 12/29/08 Kerik faces new charges Home Top Permalink Share this post Posted 11/6/07 Supervisors’ refusal to exercise oversight leaves the Sheriff unaccountable Upstaging our spineless Board of Supervisors, which decided 3-2 against forcing him to take as much as a temporary powder, Orange County Sheriff-under-Federal-indictment Mike Carona placed himself on sixty-day hiatus, leaving Undersheriff Jo Ann Galisky in charge of the anxious and demoralized agency. What’s wrong with this picture? Plenty. With the Sheriff in limbo and two former top aides sucking wind (Assistant Sheriff George Jaramillo in the slammer; Assistant Sheriff Don Haidl, who recently pled guilty to Federal corruption charges, packing his lunch) it’s not enough to pass the baton to the most senior officer not facing prosecution and hope that the strong odor in the executive suites simply goes away. We desperately need a thorough, no-holds-barred investigation of the department’s entire command staff; after all, it was Carona who promoted them: where do you think their loyalties lie? That, as Supervisor John Moorlach and Board Chair Chris Norby (the only good guys in this picture) probably realize, is not something that can happen from within. In any competent organization the penthouse would have already been sealed and its occupants placed on paid leave while knowledgeable outsiders come in to interview underlings, review records and get a handle on exactly what’s been going on during the last few years. How was the agency run? How were its leaders selected? Are there other instances of misconduct? Meanwhile the department can be run by a competent retired Chief without a stake in the outcome (no offense, Paul Walters, but everyone knows you want to be Sheriff.) Where’s the beef, you ask? How about the California Constitution? Article 5, section 13, implemented in Government Code section 12560, places Sheriffs under the “direct supervision” of the Attorney General. Not that our sorry board would dream of exercising it, but Government Code section 25303 also gives county supervisors authority over all county officials, sheriffs included, and even requires that they assure these officers “faithfully perform their duties.” Now that the Federal attorney general has had his say, we need California’s to exercise his Constitutional authority and send a crew of Cal DOJ agents post-haste to turn off the shredders, lock the cabinets and shut the doors and windows before all potential evidence of mismanagement or criminal activity disappears. Earth to Jerry Brown...come in, please. We’re waiting! Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED POSTS Carona Five, Feds One (But the Feds Won) Ex-Commish Leaves Carona in the Dust Home Top Permalink Share this post Posted 11/1/07 FLASH: WHITEHOUSE TORTURES MUKASEY! For the would-be Attorney General, waterboarding isn’t torture, unless it is Q: “Is waterboarding Constitutional?” A: “I don’t know what’s involved in the technique. If waterboarding is torture, torture is not Constitutional.” Q: “‘If waterboarding [is torture]’, that’s a massive hedge. I mean it either is or isn’t. Do you have an opinion on waterboarding, which is the practice of putting someone in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning. Is that Constitutional?” A: [Long pause] “If it amounts to torture, it is not Constitutional.” Q: [Looking grim] “I’m very disappointed in that answer, I think it is purely semantics.” A: “Sorry.” As we know, this Orwellian conversation between Senator Sheldon Whitehouse (D - RI) and Judge Michael Mukasey took place in the chambers of the United States Senate during the second day of hearings on the judge’s nomination to be Attorney General (click here to watch the video). After spending the opening day vowing the committee with promises to run an independent ship, the Judge apparently suffered an overnight conversion, leading at least two Senators to ask whether he had been warned to get back in line. Mukasey said no, but the happy talk went away and his confirmation was placed in serious jeopardy. Realizing that the dodge was poorly received, Mukasey wrote the committee a letter explaining that it was important to avoid prejudging the lawfulness of techniques he knew little about and might well be used by American authorities in one form or another. Having already dropped a bombshell, that in his opinion the President’s authority as commander-in-chief supersedes all laws short of the Constitution, his attempt to mollify the committee with double-talk only made a lousy situation worse. Did the judge really intend to keep a firewall between the White House (the building, not the Senator) and the Department of Justice? Was he to be America’s chief law enforcement officer, or the President’s? Keep in mind that the job wouldn’t even be vacant but for the prior incumbent’s bumbling. When Alberto Gonzalez was White House counsel he was rightfully Bush’s toady, for that was his role, but when he moved over to Justice one expected a lot more. The rules changed, the man didn’t, and the rest is history. Would Mukasey be a re-run? Let’s rewind. Say that Mukasey has another epiphany and shows up ready to declare every interrogation technique short of back rubs illegal. Was he right in the first place? Should he insert himself into a process that might best be left for the courts to decide? That is a resounding...maybe. The Attorney General’s obligation is twofold: to enforce the law, and to supervise its agents of social control. If a practice is so well defined (like, by Senator Whitehouse) that it cannot be but torture, we need to know that Mukasey is smart enough to recognize it and brave enough to say so, no matter whose ox gets gored. Unlike the White House counsel, the Attorney General’s primary loyalties are not to individuals or agencies but to the Constitution and the laws of the land. When the writer was a Federal agent he was sued twice (both times unsuccessfully) by criminal defendants for alleged civil rights violations. Although the AG came to my defense, he was not obligated to do so, and had he deemed my actions sufficiently egregious I could have been prosecuted! Back to the present. Mukasey has a chance to redeem himself, but after all the “water” that’s flowed under this bridge it’s hard to picture how. Because of the dreadful consequences should they do the wrong thing, our law enforcement officers must be more than technicians -- they must be moral agents as well. Should we trust someone who hides behind legalese to lead our pre-eminent agency of justice? Having heard all his evasions, what kind of example would he be? Let the good judge go back to writing contracts, drafting wills or just sunning himself on the beach, thinking about what might have been. Or rather, what he might have been. Did you enjoy this post? Be sure to explore the homepage and topical index! Home Top Permalink Share this post Posted 10/30/07 ACCOUNTABILITY? NOT IF YOU’RE A SHERIFF Popularity contests are no way to select law enforcement officers Considering the many scandals that have rocked his administration, news that Orange County Sheriff Mike Carona faces Federal corruption charges comes as no great surprise. Perhaps the best known faux pas during his watch was the arrest of his former pal, Assistant Sheriff George Jaramillo for taking bribes to promote an auto immobilizer. Carona quickly distanced himself from his friend, firing him and, however improbably, disavowed any inkling that department resources might have been used for private gain. (Jaramillo, who had vaulted to the number two spot in the OCSD after a troubled tenure as a Garden Grove lieutenant, pled guilty and got a year in the slammer.) But the Sheriff soon became embroiled in his very own controversy when it was revealed that the “Hispanic Education Endowment Fund,” a charity he set up when taking office, reported outlays that amounted to only a tiny fraction of the hundreds of thousands of dollars that came in from donations. Proving that Hell hath no fury like an Assistant Sheriff scorned, Jaramillo then stepped in with allegations of his own, claiming, among other things, that with the Sheriff’s knowledge he had laundered a $200,000 contribution to Carona’s re-election campaign by attributing it to multiple donors. Despite all the rumors, Carona has been only slapped down twice: once, when the State Department of Justice revoked his grants of badges, guns and full police powers to dozens of unqualified friends, relatives and campaign supporters, and again, when he agreed to a $15,000 civil fine for billing his campaign committee for thousands of dollars in undocumented “loans”. Although many Republicans supported Lieutenant Bill Hunt, Carona’s opponent during the 2006 election, the Sheriff won a third term, proving if nothing else that incumbency is not one thing: it’s the only thing. Carona then patched up things his way, demoting Hunt for daring to bring up his superior’s integrity as a campaign issue. Hunt resigned and sued. America’s infatuation with a decentralized, fragmented police answerable to local politicos has led to a legacy of corruption. “Serpico” didn’t become part of the popular lexicon just because it was a terrific movie. Even so, serious misconduct at the very top is thankfully rare, in no small part because most cities select Chiefs through a rigorous, public process that leaves little room for those with questionable resumes to sneak in. Electing top police officials holds no such promise. Before rising to head one of the largest law enforcement agencies in the country, Carona was an obscure player in charge of security for the Orange County courts. Ordinary citizens are hardly in a position to examine an applicant’s bonafides, and turning the hiring of Sheriffs into a popularity contest bypasses the rigorous vetting process that we should expect for all law enforcement executives. Worse, it instantly makes incumbents dependent on contributors and others with selfish stakes in how justice is administered. Sheriffs like to say that they’re accountable to the voters, yet in practice that means being accountable to no one. All that a Board of Supervisors can do to rein in an independent agency like a Sheriff’s Department is strangle its finances, an indirect and imprecise measure that only punishes the public. To avoid problems such as those we now face with “America’s Sheriff” (that’s what authority-on-everything Larry King once christened Carona) some areas -- for example, Nassau County, New York -- have adopted County police models with appointed, professional chiefs who report to elected executives, who are in turn answerable to the public. It’s high time for a like remedy throughout California. We need to assure that all top cops are subject to real rather than pretend oversight. Our citizens deserve no less. Either that, or we can keep leaving it to the Feds. Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED POSTS Carona Five, Feds One (But the Feds Won) Ex-Commish Leaves Carona in the Dust Home Top Permalink Share this post YOU CAN’T “MANAGE” YOUR WAY OUT OF RAMPART Pressures from above and a drive to succeed can distort officer behavior New York City. Washington, D.C. New Orleans. Los Angeles. What do these four cities have in common? Police misconduct. Since inception of the first regularized force in the U.S., in New Amsterdam, later New York City, cycles of what criminologist Lawrence Sherman termed "scandal and reform" have plagued the police in urban On each occasion, civilian and police investigating commissions conducted thorough probes. And after much chest-thumping and self-flagellation, each pointed to the same list of “usual suspects”: poor hiring practices, lax supervision, ineffective internal inspection mechanisms, the absence of executive leadership, and so on. Assistant Attorney General Bill Lee’s recent ultimatum to the City follows this tradition: “Serious deficiencies in LAPD policies and procedures for training, supervising, and investigating and disciplining police officers foster and perpetuate officer misconduct.” Other than for his rankling insistence on external oversight, Mr. Lee’s dicta that more management is better management mirrors the conclusions of LAPD’s own, exhaustive Board of Inquiry report, at present the mea culpa to beat. Why is the needle still stuck on the same track? What has been the benefit of extending police training so that rookies now endure academies lasting six months or more? Of spending hundreds of millions to support the National Institute of Justice? Of millions spent on police executive training at the FBI Academy and elsewhere? Of the proliferation of college criminal justice curricula, where it is now possible to earn everything from an A.A. to a Ph.D.? And yes, of raising police salaries from mere subsistence to a level that allows a majority of police to enjoy the perquisites of the middle class? Adopting ever-more stringent standards seems sensible. Sometimes we need to rearrange the deck chairs. But how far should we go? Install a Sergeant in the back seat of every patrol car? Um, no, he might get co-opted. How about a Lieutenant instead? Better yet, let’s clone the Chief and… As every parent knows, merely tightening the screws cannot, in the long haul, overcome the forces that impel misconduct. This is equally true for policing. Thirty years ago, political scientist James Q. Wilson's landmark study, "Varieties of Police Behavior" suggested that police work is shaped by the environment. Simply put, we get the style of law enforcement that the community - or at least its politicians and more influential members - expects. So-called "aggressive" policing could not have taken place in New York City in the absence of a demand to stem street crime. Abuses at Rampart did not start with a conspiracy between rogue officers. They began with a problem of crime and violence that beset Pico-Union. Into this web of fear and disorder we dispatched officers - members of the ineptly named CRASH - whose mission it was to reclaim the streets for the good folks. Did we supply officers with special tools to help them accomplish their task? Of course not, since none exist. Yet our expectations remained high. Police officers gain satisfaction from success. Their work is also judged by superiors, who are more interested in numbers of arrests than in narrative expositions, the latter being difficult to pass up the chain of command and virtually impossible to use in budget fights at City Hall. Officers who volunteer for specialized crime-fighting assignments want to do more than take reports - they want to make a difference. For some, the poisonous brew of inadequate tools and pressures to produce can have predictable consequences. Their dilemma is characterized by criminologist Carl Klockars as the "Dirty Harry" problem: given a lack of means, how to achieve good ends. Harry solved this problem by adopting bad means. Real officers on a What is to be done? By all means, apply whatever management remedies are available. But for a long-term solution, look to the environment of policing, and particularly to the self-induced and agency-generated pressures that can spur vulnerable practitioners to cross the line. For example: * Examine the mission. If it cannot be done - and done well - with the resources at hand, reconsider the approach. Emphasize conventional tactics, particularly uniformed patrol, and lobby forcefully for lasting remedies such as economic, social and educational investment. * To reduce the pressure to breach ethical boundaries, set realistic objectives. Quantitative measures can corrode officer ethics and distort the nature of their work. Instead of just counting "numbers" employ qualitative measures of performance. It may be less convenient than checking boxes on a form, but in policing there is no satisfactory alternative. * Don't exaggerate. Chiefs and command staffs must insure that they and their fellow decision-makers in City government are educated about policing and have realistic expectations about what the police can accomplish. Yes, critical self-study is a good thing. But failure to attend to the forces that drive police work only promises to deliver an even thicker set of "mea culpas" the next time around. Did you enjoy this post? Be sure to explore the homepage and topical index! Home Top Permalink Share this post There’s a big difference between working mistakes and willful misconduct Crime is up, arrests are down. While Feds bay at the door, Mitzi Grasso, president of the police union, calls for citizens to take charge of LAPD’s disciplinary process. Joe Domanick cites Rodney King, Rampart and Commissioner Chaleff’s firing as evidence that neither the Chief nor the Mayor support institutional change. What’s going on? * The Union. As Mitzi replays the rhetoric of civilian review, stressing its benefit of increased public confidence, she also mentions another goal: “fairer decisions for our officers”. But civilian review did not grow from a concern about abused cops. Its primary goal was always to redress abuses against citizens. Do her remarks indicate that she and her peers have undergone an epiphany? Or is this just another shot across the Chief’s bow, reflecting the anger that officers feel about his seemingly rigid and heavy-handed approach to discipline? Many cops - perhaps a majority - want Parks administratively handcuffed, and if civilian review is what it takes, so much the better. * Reform. Although Domanick agrees that crime fighting and adding more officers is important, he feels that neither “can even be remotely considered police reform.” Joe dismisses the department’s and the Independent Commission’s reports as insubstantive. In his view, “fixing a broken culture” and “getting the troops to respect the public and the Constitution” is a “battle” that can only be won by throwing the rascals out and “democratizing” departmental oversight. What both leave out, though, is any mention of the police workplace. As Mitzi, Joe and all the lawyers on all the commissions fiddle with the control side of the equation, no one seems particularly interested in what police actually do. In fractured Los Angeles, reeling from economic disparity, a large, restless underclass, a decaying infrastructure and grossly underfunded schools and public services, cops face inordinate challenges. And the demands keep piling on. When our City threw Rampart CRASH into the cauldron of Pico-Union, did they know the risks of asking police to solve crimes when options (such as cooperating witnesses) are unavailable? At a political fundraiser weeks ago, my family listened to an enraged father complain that his daughter was hit with a rubber bullet during protests at the Democratic convention. His view - that police should carefully calibrate their every response so that only optimal results are achieved - is an integral part of the progressive agenda. But given the realities of urban policing, imagine the confusion that such demands provoke. L.A.’s allegedly demoralized cops were widely criticized for letting rampaging fans burn vehicles at Staples Center. Had the out-numbered officers stepped in and been forced to shoot a few temporarily crazed Laker boosters, would they have received our support? Unreasonable demands set up cops to fail. They also ignore the fact that in most cases it is citizen behavior that needs to be “reformed”. Spend a few months on the street taking calls, and you will be convinced that we might carry Palm-Pilots in our pockets, but we are Cro-Magnons at heart. If we want kinder and gentler cops, we need kinder and gentler citizens. Achieving that difficult end calls for a dynamic social and economic agenda, which is hopefully where L.A.’s new leadership - once it stops obsessing over the cops - will go. Of course, adequate oversight over the police is necessary. But it cannot be accomplished by simply cranking up controls. We must learn enough about police work to distinguish between working mistakes and willful misconduct. As Mitzi Grasso knows, police who work under civilian review boards quickly discover that once citizens learn about policing, they are more likely than managers to come down on the side of the cops. Reacting disproportionately to errors causes officers to lie. It also breaks bonds between the line and supervisors, further eroding management control. A preoccupation with avoiding controversy can even encourage officers to adopt the passive, “drive by and wave” style of policing that has supposedly overtaken our formerly proactive LAPD. Communities ultimately get the law enforcement they deserve. If we work towards an economically and intellectually vibrant, inclusive Los Angeles, the best police force will come. Or we can continue to ignore the disparity and hopelessness and suffer the consequences. Here is a promise - and a warning - that we cannot afford to ignore. Did you enjoy this post? Be sure to explore the homepage and topical index! |
