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Posted 10/25/09

TRUTH OR CONSEQUENCES

A Sheriff needlessly entangles himself, and his agency, in a web of deceit

     For Police Issues by Julius (Jay) Wachtel.  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:

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     “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.

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     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)

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IGNORANCE IS NOT BLISS

Playing ostrich about officer misconduct doesn’t make it go away

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

Click here for the complete collection of conduct and ethics essays

       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 the definition for leadership (“Finally, the chief is expected to set the standard for professionalism, accountability, and ethical conduct in his or her agency”), and in the middle of a massive to-do list (“How well does the Internal Affairs department function address the core issues of accountability, transparency, and ethics/integrity?”)

     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.

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     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!

UPDATES

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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

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?
WHALEN:  As I said the only words I exchanged were “I was the nine-one caller” and he pointed to me and said “stay right there.”
REPORTER 1:  Nothing more.
WHALEN:  Nothing more than that.
REPORTER 2:  Did you find any inaccuracies in the police report given that he’d said he’d spoken to you directly and that you had said that they were African American...
WHALEN’S LAWYER:  She’s not going to answer questions about the police report.

     For Police Issues by Julius (Jay) Wachtel.  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:

Click here for the complete collection of conduct and ethics essays

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?
CALLER:  Uhm, I don't know what's happening. I just had a, uh, older woman standing here and she had noticed two gentlemen trying to get in a house at that number 17 Ware Street. And they kind of had to barge in and they broke the screen door and they finally got in and when I (inaudible) and looked, I went closer to the house a little bit after the gentlemen were already in the house I noticed two suitcases. So I'm not sure if these are two individuals who actually work there or maybe live there.
***
DISPATCH:  Were they white, black, or Hispanic?
CALLER:  Uhm, well they were two larger men. One looked kind of Hispanic but I'm not really sure. And the other one entered and I didn't see what he looked like at all. I just saw her from a distance and this older woman was worried thinking someone's breaking into someone's house. They've been barging in and she interrupted me and that's when I had noticed otherwise I probably wouldn't have noticed it at all to be honest with you. So I was just calling because she was a concerned neighbor. I guess.

     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.
OFFICER: O-R
911: Respond to 17 Ware Street for a possible B-D in progress, two S-P's barged their way into the home. They have suitcases. (inaudible) S-P. Standby. Trying to get further.
OFFICER: 52-0. Ware Street right now, 17?
911: 17 Ware Street, uhm, both S-P's are still in the house, unknown on the race. Ah, one may be Hispanic I'm not sure.

     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.

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     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.

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When (Very) Hard Heads Collide       Good Cop / Bad Cop       To Err is Human

WHEN (VERY) HARD HEADS COLLIDE

A professor and a cop revive the race debate.  But was it really about that?

     For Police Issues by Julius (Jay) Wachtel.  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.

Click here for the complete collection of conduct and ethics essays

     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.

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     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.

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When (Very) Hard Heads Collide (II)     He Said That She Said, But Did She?         Good Cop / Bad Cop

To Err is Human

REVERSAL OF FORTUNE

No longer a Senator or felon, Ted Stevens chuckles as prosecutors feel the heat

     For Police Issues by Julius (Jay) Wachtel.  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.

Click here for the complete collection of conduct and ethics essays

     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.

     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:

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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.

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Never Having to Say You’re Sorry

YOU CAN TAKE THE MAN OUT OF CHICAGO...

President Obama’s appointments belie his reformist message

     For Police Issues by Julius (Jay) Wachtel.  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.

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     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.

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     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.

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