Controlling the Cops; Accomplices To Perjury
By ALAN M. DERSHOWITZ;As I read about the disbelief expressed by some prosecutors at the Mollen Commission's recent assertion that police perjury is "widespread" in New York City, I thought of Claude Rains's classic response, in "Casablanca," on being told there was gambling in Rick's place: "I'm shocked -- shocked!"
For anyone who has practiced criminal law in the state or Federal courts, the disclosures about rampant police perjury cannot possibly come as a surprise. "Testilying" -- as the police call it -- has long been an open secret among prosecutors, defense lawyers and judges.
Irving Younger, a onetime New York City Criminal Court judge, described police testimony in search and seizure cases this way: "When one . . . looks at a series of cases, [ it ] then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them."
Judge Younger concluded that the solution to this pervasive problem was "prosecutors' work," since the "courts can only deplore" while the prosecutors can refuse to put perjuring policemen on the witness stand and can prosecute them if they lie.
He was correct in identifying the problem and in arguing that prosecutors bore considerable responsibility for its persistence. But he let the courts off the hook too easily: the central villains in the perjury scandal are precisely judges who, for decades, have pretended to believe the tallest tales told by lying cops in the face of overwhelming evidence of pervasive perjury.
Without the complicity of judges, police perjury would be reduced considerably. Officers know that in many courtrooms they can get away with the most blatant perjury without judicial rebuke or prosecution.
I have seen trial judges pretend to believe officers whose testimony is contradicted by common sense, documentary evidence and even unambiguous tape recordings. And I have seen appellate judges close their eyes to such patently false findings of fact. Judicial acceptance of obviously false testimony sends a subtle yet powerful message of approval, if not encouragement, to perjurers.
In Boston, the police routinely made up imaginary informers to justify searches and seizures, and the judges believed them.
In a Federal case in New York, a judge credited the testimony of a policeman even though he was caught on tape telling an informer that if he testified truthfully, he would run him over "with a truck" and that if the informer ever said "that I said it, I'm gonna deny it." The cop then denied saying it, and despite the tape the judge pretended to believe him.
In Nassau County, a policeman showed a key witness photographs of a suspect before the witness was asked to pick the suspect out of a lineup, and then denied under oath that he had done so.
Many trial judges were prosecutors, and they know perjury when they hear it -- and they hear it often enough to be able to do something about it. Yet many tolerate it because they think most victims of police perjury are guilty of the crimes for which they stand charged.
Some judges refuse to close their eyes to perjury, but they are the rare exception to the rule of blindness, deafness and muteness that guides the vast majority of judges and prosecutors.
The Mollen Commission includes a former judge and prosecutor; unless it broadens its focus to include judges and prosecutors who subtly encourage perjury, nothing will change.
A few cops will be prosecuted, and a quarter-century from now yet another blue-ribbon commission will be "shocked -- shocked" at the pervasiveness of police perjury in the criminal justice system.
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