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Posted 9/14/08

WHAT DOES IT TAKE TO GET FIRED?

When citizen review panels overrule the Chief, discipline suffers

     For Police Issues by Julius (Jay) Wachtel.  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.

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     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.

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     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.

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Are Civilians Too Easy on the Police?     Role Reversal     What Should it Take to be Hired?

TROUBLES AT THE TOP

Saying “no” costs Alaska’s top cop his job

     For Police Issues by Julius (Jay) Wachtel.  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.

Click here for the complete collection of conduct and ethics essays

     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.

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    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.

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LYING: THE GIFT THAT KEEPS ON GIVING

Deceiving suspects to get them to confess can backfire

     For Police Issues by Julius (Jay) Wachtel.  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.

Click here for the complete collection of conduct and ethics essays

     "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?

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     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.

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When Should Cops Lie?     Why do Cops Lie?     See No Evil, Speak No Evil

JUSTICE WAS HIS CLIENT

A prosecutor chooses between what’s right and what’s expedient

     For Police Issues by Julius (Jay) Wachtel.  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.

Click here for the complete collection of conduct and ethics essays

     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.

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     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.

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Never Having to Say You’re Sorry

HOISTED BY HIS OWN PETARD

Pornography, a Federal judge discovers, is in the eye of the beholder

     For Police Issues by Julius (Jay) Wachtel.  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.

Click here for the complete collection of conduct and ethics essays

     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
sexual in nature was all of a humorous character.  For example, the “women’s crotches”
[referring to what the Times described as bared pubic hair and genitalia] was one
of the “camel toe” series that is widely available on the net.”

     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).

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     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.

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Pre-2008 accounts from L.A. Times Historical on ProQuest (9/20/2001, 2/16/03, 12/23/06)

FOLLOWING THE RULES OVER A CLIFF

Legal ethics aren’t an end: they’re a means

     For Police Issues by Julius (Jay) Wachtel.  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.

Click here for the complete collection of conduct and ethics essays

     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.

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     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?

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(EX-)COMMISH LEAVES CARONA IN THE DUST

How law enforcement executives are selected is crucial

     For Police Issues by Julius (Jay) Wachtel.  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.

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     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”.)

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     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?

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Accountability?  Not if You’re a Sheriff

MISSION NOT ACCOMPLISHED

Supervisors’ refusal to exercise oversight leaves the Sheriff unaccountable

     For Police Issues by Julius (Jay) Wachtel.  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.

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     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.”

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     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!

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Ex-Commish Leaves Carona in the Dust     Accountability?  Not if You’re a Sheriff

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.”

     For Police Issues by Julius (Jay) Wachtel.  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.

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     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!

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     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.

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Means, Ends and 9/11

ACCOUNTABILITY?  NOT IF YOU’RE A SHERIFF

Popularity contests are no way to select law enforcement officers

     For Police Issues by Julius (Jay) Wachtel.  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.)

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     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.

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     Either that, or we can keep leaving it to the Feds.

UPDATES (scroll)

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Ex-Commish Leaves Carona in the Dust     Mission Not Accomplished

YOU CAN’T “MANAGE” YOUR WAY OUT OF RAMPART

Pressures from above and a drive to succeed can distort officer behavior

     For Police Issues by Julius (Jay) Wachtel.  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
America.

     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.

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     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
crusade have rationalized virtually anything that promised to secure the desired outcome, including brutality and planting evidence.  As their moral decay progressed, many even justified clearly self-serving behaviors such as stealing money and evidence.

     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.

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     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.

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Role Reversal

WE GET THE COPS WE DESERVE

There’s a big difference between working mistakes and willful misconduct

     For Police Issues by Julius (Jay) Wachtel.  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?

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*  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.

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     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.

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Words Matter     Intended or Not, a Very Rough Ride

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