By the time of the shooting on my Brooklyn block, I had had many more encounters—nearly daily ones–with the police; I had become a public defender. I learned that police officers were not all the same. Some cops were smart and some dumb; some were defensive and some forthright; some were engaged and some apathetic; some had empathy and some did not; some were nice and some were assholes They weren’t all the same, but still “the police” as an entity applied.
Although they were individuals, it was always clear that they belonged to a particular tribe—the police—that separated them from everyone else. That was most apparent in their dealings with prosecutors. We might have said that prosecutors and defense attorneys were on opposite sides of the fence, but we also knew that police saw us as just variations on a theme. The barrier between prosecutor and defender was a temporary, professional thing. We might be drinking together in the evening, and we might switch sides in the future. To the outsider, the police and the prosecutors appeared to be on the same side, but both police and prosecutors knew better. Both had the job of enforcing the law, but the police held themselves apart. Police officers are individuals, but they share a life that is different from the lives of lawyers—and doctors, teachers, plumbers, construction workers, and computer programmers. The police are a tribe distinct from the rest of us.
My early work as a lawyer was defending drug cases. The prosecution’s primary witnesses were invariably police officers, and often the only chance of winning an acquittal was to convince the jury that the arresting officers were not telling the truth. Jurors seldom wanted to believe that, and it was easier for them to think that a cop was mistaken rather than that he was lying. Sometimes, however, the only possible way to an acquittal (which did not happen regularly) was to argue that the cops were liars. Did they lie? Probably not as often as I suggested, but without a doubt they did.
For example, when a defendant was first brought to court, I would go into the holding cells and inform him of the charges. I might say, “The officers said that you had in your jacket seventy-two glassine envelopes containing what looked like heroin, but we will have to wait for the lab report about the envelopes’ contents.” This was sometimes met with the shout, “That’s a lie. I had over 150 bags!” I would look him in the eyes and say, “So let me understand. You want me to tell the judge that you had even more drugs than what you are charged with?” First a look of bewilderment, then one of understanding, and then one that recognized the uncomfortable reality of his predicament. And then a look of even greater hatred for the police.
Maybe on rare occasions unvouchered drugs were for the cop’s use or for sale, but often they would go for the maintenance and development of informants who often had a drug habit. Enforcement of drug laws has always been a messy, dirty business. On the other hand, there have been famous instances of police corruption in which cops did profit from seized drugs. One of my first big cases involved a special narcotics unit best known for the French Connection case that ended up in a movie in which vouchered drugs went missing. In my own case, pounds of heroin had been seized, analyzed, weighed, and sent to the police office where evidence was kept. Before the trial, which was several years after the seizure, the white powder, which was in several packages, was analyzed and weighed again. Package A weighed more than it had twenty-eight months before. I questioned the police lab guy about this discrepancy, and he said that a powdery substance, even though sealed in layers of police plastic, could draw water out of the air and, thus, weigh more now than it did years ago. He loved saying “deliquescent.” I asked about Package B which, we (and the jury) were told, was secured and stored precisely the same as Package A. I then went back to the lab reports. Package B, treated the same as Package A, now weighed less than it had when it came into police custody. So I asked how it could that the powder in one package had drawn water from the air but the other had apparently lost water to the air. The lab tech had no explanation. He didn’t use the words, but in essence he said, “It is what it is.”
Underlying this was a basic fact about the drug laws. We might have said informally that the police had seized “two pounds of heroin,” but in fact, the true legal terminology was “two pounds of powder containing heroin.” Whether the two pounds contained one percent heroin or fifty percent heroin, it was the same crime. The level of the crime was set by the total weight of the powder, not the proportion of drugs in the powder. Cutting the powder was not unknown. Take two pounds of the powder, remove one pound, and fill the package back up with Gold Medal flour. (For reasons I never knew, the flour cutting agent was always said to be Gold Medal, not Robin Hood or Hecker’s or some other flour.) There would still be two pounds of a powder containing heroin. I don’t know if this had happened in my case, but something odd was going on and I said so. The jury was skeptical of the police and acquitted my client of the heroin charges. (He was convicted of possessing a sizeable amount of marijuana—I think it was nine pounds—and went to jail for nine years, which was a lot less than the life sentence he would have received for possessing kilograms of heroin.)
Money was also undercounted. I might tell the defendant at that first court appearance, “The criminal complaint says that you had 28 bags of heroin and $742 in small bills.” Sometimes the defendant would reply, “That’s a lie. I had over $1,500!” And I would say, “You say you don’t have a job. You can’t explain how you had $742 much less twice as much.” The defendant would absorb this, and it was not mentioned in court. I never believed that the pilfered money was going to informants. I only hoped that it made the cops’ kids’ lives better.
So, yes, cops lied. Whenever there is enforcement of what might be called lifestyle crimes—drugs, prohibition, prostitution—lying and corruption too often follows, but the lack of the truth is not confined to these areas. What were called “turnover arrests” also caused lying. In New York City, an arrest required paperwork and custody. This was the job of the arresting officer, but if the arrest happened late in the shift, the duties might carry on past the scheduled quitting time. Often the officer was happy for this (and this could affect the timing of arrests) because overtime pay was involved. But the officer might have been tired and needed sleep or had family obligations or whatever, and the officer wanted to leave on time. The officer might then turn this arrest over to a colleague coming on duty or who wanted overtime. The arresting officer would explain why the person had been arrested, and the second officer would do the paperwork as if he had wielded the handcuffs. Of course, this was not the truth, but most often there was little risk that the lie would come out. Almost always the defendant took a plea bargain. However, once in a while, such a case went to trial, and interesting situations could arise.
One sticks in my mind. A man with many previous convictions was charged with possessing a loaded handgun in Times Square. On the evening before jury selection was to begin, I got a call from my prosecutorial counterpart who told me that the “arresting” cop was lying. It had been a turnover arrest. I was almost amused. I had not had a viable defense before the call. The defendant, because of his prior convictions, would not be offered a meaningful plea bargain. His sentence was going to be the same as if he went to trial and lost, and thus a miracle verdict, unlikely as it was, was the only possible hope. “Great,” I thought. “For the first time, I can actually prove the police are lying, but if the real arresting officer comes into court and explains everything, I am still facing seemingly irrefutable proof that my client possessed the gun. I can prove the cops were lying, and we are still going to lose.” My lawyerly ass was saved, however, because the District Attorney decided to dismiss the case. (I was told later that the prosecutors went through a good deal of soul searching as to whether the cops should be charged with crimes. They were not.)
In these turnover cases, and even when a lesser amount of drugs was vouchered than seized, the police were not trying to frame an innocent person. They felt that they had a guilty person and that that guilty person would still be prosecuted and punished. Even if officers were not telling the full truth, I could understand why and was not sure how I would have reacted had I been in their shoes.
However, it is not this level of police misconduct that has drawn the recent ire, protests, and calls for reform. It is unnecessary or wrongful police violence.
(Continued October 5)