TestiLYING
#11
‘No Fear of Being Caught’
Many police officials and experts express optimism that the prevalence of cameras will reduce police lying. As officers begin to accept that digital evidence of an encounter will emerge, lying will be perceived as too risky — or so the thinking goes.
“Basically it’s harder for a cop to lie today,” the Police Department’s top legal official, Lawrence Byrne, said last year at a New York City Bar Association event, noting that there were millions of cellphones on the streets of New York, each with a camera. “There is virtually no enforcement encounter where there isn’t immediate video of what the officers are doing.”

As more police encounters are recorded — whether on the cellphones of bystanders or the body-worn cameras of officers — false police testimony is being exposed in cases where the officer’s word might once have carried the day. That is true for run-of-the-mill drug cases as well as for police shootings so notorious that they are seared into the national consciousness.
Yet interviews with officers suggest the prevalence of cameras alone won’t end police lying. That’s because even with cameras present, some officers still figure — with good reason — that a lie is unlikely to be exposed. Because plea deals are a typical outcome, it’s rare for a case to develop to the point where the defendant can question an officer’s version of events at a hearing.
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“There’s no fear of being caught,” said one Brooklyn officer who has been on the force for roughly a decade. “You’re not going to go to trial and nobody is going to be cross-examined.”
The percentage of cases that progress to the point where an officer is cross-examined is tiny. In 2016, for instance, there were slightly more than 185 guilty pleas, dismissals or other non-trial outcomes for each criminal case in New York City that went to trial and reached a verdict. There were 1,460 trial verdicts in criminal cases that year, while 270,304 criminal cases were resolved without a trial.
To be sure, officers are sometimes called to testify before trial at so-called suppression hearings in which the legality of police conduct is evaluated. But those are rare. In Manhattan, about 2.4 percent of felony criminal cases have a suppression hearing, according to data from the Manhattan district attorney’s office. The rate for non-felony cases is slightly more than one-tenth of 1 percent.
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#12
A Crucial Court Decision
Several officers, all working in the Bronx and Brooklyn, candidly described in interviews how the practice of lying runs like a fault line through precincts. “You’re either a ‘lie guy’ or you’re not,” said the Brooklyn officer. Speaking on condition of anonymity, he described how he avoided certain officers and units in his precinct based on his discomfort with the arrests they made.

Earlier in his career, he said, a supervisor and a detective had each encouraged him to lie about the circumstances of drug arrests. Another time, he said, he had worked with an officer who, after discovering drugs while searching a suspect without cause, turned to the other officers present with a question — “How did we find this?” — and sought their help devising a false story.
Countless police officers have struggled with that question — “How did we find this?” — ever since 1961, when the Supreme Court ruled, in Mapp v. Ohio, that state judges must throw out evidence from illegal searches and seizures. Before this ruling, New York City officers could stop someone they thought might be dealing or using drugs, search their pockets and clothing, describe the encounter truthfully, and not worry that a court would throw out the drugs that they had discovered, even though the stop and search had been, strictly speaking, illegal. That changed with the Mapp decision, which greatly expanded the reach of the Fourth Amendment.
Immediately after the Mapp case, police officers saw many narcotics cases be dismissed. Then they made what one judge called “the great discovery.” If they testified that the suspect had dropped a bag of drugs on the ground as the police approached, courts would generally deem those arrests legal.
Within a year of the Mapp decision, courts in New York City were seeing a marked increase in what became known as “dropsy” testimony — in some units “dropsy” cases increased more than 70 percent, according to one 1968 study.
There was little reason to think drug users had grown more skittish. Rather, the influx of these cases was understood to be a sign that police officers were lying in a substantial number of cases. Ever since, courts in New York have been plagued with officers lying about how they came to discover that a suspect was carrying drugs or guns.
By 1994, a commission appointed to investigate police corruption noted that lying to make cases stick was common enough for “testilying” to become a well-known portmanteau.
The report by the Mollen Commission noted a few established patterns of falsehoods. Officers who illegally searched a car might later say they discovered contraband in “plain view.” Or an officer who found a gun or drugs in someone’s clothing during an illegal search might falsely claim to have seen “a bulge in the person’s pocket.”
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#13
Just like the dropsy testimony a few decades earlier, these stories of “plain view” and “suspicious bulges” became scripts that many police officers stuck to. They were rarely challenged, not even as officers in New York City began repeating them tens and then hundreds of thousands of times as police stops of mainly black and Latino men skyrocketed during the years Michael R. Bloomberg was mayor.
Embellished Narratives
In recent years, the number of times police stopped and frisked pedestrians has declined precipitously. But certain plainclothes units, such as the so-called anti-crime teams, still engage in an aggressive style of policing that relies heavily on stop-and-frisk tactics. These teams make a disproportionate number of gun arrests, but they are also responsible for a substantial number of dubious stops of pedestrians and drivers, police officers and legal experts said in interviews.
Several uniformed patrol officers said they have long suspected that the track record of plainclothes anti-crime teams for making weapons and drug arrests was bolstered by illegal searches and a tolerance for lying about them.
These officers described a familiar scene: a group of black men ordered out of a vehicle for little reason and made to sit on the curb or lean against the bumper, as officers search the vehicle for guns and drugs.
“Certain car stops, certain cops will say there is odor of marijuana. And when I get to the scene, I immediately don’t smell anything,” said Officer Serrano, one of the few officers interviewed who was willing to speak on the record. “I can’t tell you what you smelled, but it’s obvious to me there is no smell of marijuana.”
Mr. Serrano’s testimony about a secret station-house recording he made was crucial evidence in a landmark stop-and-frisk trial in 2013. He and nearly a dozen other current and former officers are suing the Police Department over what they describe as arrest quotas.
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#14
“It’s the anti-crime teams, the plainclothes officers, everyone knows they will violate the law, get what they want and then write it to fit the narrative,” said Edwin Raymond, a police sergeant who is also a plaintiff in the arrest-quota case. “The narratives will be embellished to fit the parameters of probable cause, if need be.”
‘A Surreal Journey’
To be sure, there are other motives for lying, other than to cover up illegal searches.
Some police officers have said they faced pressure from commanders to write more tickets or make more arrests. A decade ago, narcotics detectives were found to have falsely accused people of dealing drugs in order to meet arrest quotas.
And there is pressure to solve — or at least close — cases. That may have motivated Officer Martinez’s gun-in-the-laundry-bag-in-the-doorway story.
What appears to have actually happened is that Officer Martinez and other officers searched inside the apartment for evidence from a nearby shooting. They had good reason to focus on that apartment. The victim, after being shot, had rushed there, along with others. Crime-scene photos taken by the department’s Evidence Collection Team suggest that a gun was found inside the apartment, in or near a laundry bag on the floor.
But whose gun was it? That was not clear. A number of people had been in the apartment in the preceding hours. And Ms. Thomas, who lived more than a mile away and arrived about an hour after the shooting, was one of the few people there when Officer Martinez showed up.
There is little, if any, evidence tying Ms. Thomas to the gun other than Officer Martinez’s false testimony that placed her in the doorway with the laundry bag in her arms. Prosecutors acknowledged that DNA testing indicates that Ms. Thomas did not handle the gun. Moreover, court papers that prosecutors filed after the case fell apart noted that the police appear to have focused on Ms. Thomas while ignoring other potential suspects. Several other people had entered the apartment shortly before Ms. Thomas — “none of whom are questioned by the police,” the prosecutors’ papers noted.
As for Officer Martinez’s false story of the laundry bag in the doorway, the prosecution’s legal papers noted only that “there are clear inconsistencies” between Officer Martinez’s “recollection of events and the video.”
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#15
“At no time in this video is there a laundry bag in the defendant’s hands,” the prosecution’s legal papers noted. “Neither is there a bag in the doorway of the apartment, and at no time is the arresting officer observed moving a bag before entering the apartment.”
By the time prosecutors officially dropped the case in November 2017, Ms. Thomas had already appeared in court 16 times, according to a tally of appearances kept by one of her lawyers, Alexandra Conlon, of the Bronx Defenders. On the last appearance, Ms. Thomas, 39, asked to address the court. “For 396 days I have been fighting for my life, my freedom and my sanity,” she said. “This has been such a surreal journey that I don’t wish on anyone.”
Officer Martinez remains in good standing at the 41st Precinct. Shortly after the case was dismissed, he was promoted to detective and given his gold shield. When a reporter tried to interview him in January about his testimony in the case, he declined to comment, saying, “That’s not something I can speak about directly with you.”
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