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Posted 12/20/20

SELECT – DON’T “ELECT”

When top cops are elected, controls fly out the window

     For Police Issues by Julius (Jay) Wachtel. Forgive us for claiming prophecy, but one of our very first posts concluded that electing Sheriffs virtually guarantees poor endings. So a recent news account about the seemingly irreparable riff between Los Angeles Sheriff Alex Villanueva and several members of the County Board of Supervisors, who vociferously demand that he resign, comes as little surprise.

    It’s not the first time that the L.A.S.D.’s executives have come under fire. Remember that catchy “those mother-f------! Who do they think they are? F--- them!”? As we mentioned in “Orange is the New Brown,” these memorable words were uttered in 2011 by then-Undersheriff Paul Tanaka. You see, he and his boss, Sheriff Lee Baca, had just discovered that an inmate was using a secretly acquired cell phone to convey, in real time, the dastardly behavior of “abusive and corrupt” jail deputies to his pals at the FBI.

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     It’s not as though the Feds were on to something new. As we pointed out in “LASD Blue,” problems at the L.A. County Jail had festered openly for years. What the ACLU termed a “Savage Gang of Deputies” ran rampant, dispensing serious beatings and, when challenged, lying about what happened. Reports by the County’s oversight agency had also repeatedly warned of serious lapses in jailer performance and conduct.

     Baca promised to tighten things up and implement reforms. But when he and Tanaka found out what the Feds were up to they orchestrated a massive cover-up. Deputies hid away the jailed snitch, openly discouraged other prisoners from becoming involved, and even tried to intimidate an FBI agent by popping in at her home. Those ham-handed attempts ultimately led to the 2014 Federal conviction of six deputies, including a Lieutenant.

     Sheriff Baca resigned. But once his former underlings found themselves on the wrong side of those nasty bars they predictably turned on their bosses. Baca and Tanaka were in an impossible fix. In 2016 Baca pled guilty to lying to Federal agents. His original deal for a six-month prison term fell through, and it took a couple trials before he was finally convicted. (He began serving his three-year stretch earlier this year.) Tanaka, who admitted nothing, was tried and convicted of obstruction. He drew a stern five years and reported to Federal prison in 2017.

     But let’s not just pick on L.A. Its next-door neighbor, Orange County, has had plenty of troubles with its cops as well. Two of our earliest essays – “Accountability? Not if You’re a Sheriff” and “Carona Five, Feds One” – described the inglorious, troubled tenure of Orange County Sheriff Mike Carona. In 1998, after a decade-long stint as county marshal, responsible for court security and such, Carona was elected Sheriff. He actually became quite popular, and his re-election in 2002 led TV Host Larry King to proclaim him “America’s Sheriff.” Carona was re-elected in 2006.

     And just like his L.A. counterpart, he didn’t mess up all by himself. Carona had brought in two buds from the start: George Jaramillo, a lawyer and ex-cop, and Don Haidl, a wealthy businessman with no law enforcement experience. Both were promptly appointed Assistant Sheriffs; in effect, Carona’s number two’s. All seemed peachy until twin disasters hit in 2014. State agents nailed Jaramillo for using County resources to promote a private business (taking bribes to peddle a car immobilizer) while police arrested Haidl’s son for a rape that he and his friends allegedly committed at daddy’s home.

     Carona kept out of it. He fired Jaramillo. Haidl, embittered by his boss’s lack of support, promptly resigned.

     Payback came three years later. Facing Federal tax charges, Jaramillo and Haidl testified that they laundered gifts and cash that campaign contributors gave Carona in exchange for reserve badges and gun permits. Although that case mostly fell apart, Carona was ultimately convicted of witness tampering. The evidence? Secret recordings of conversations between FBI stoolie Haidl and Carona, in which the beleaguered Sheriff begged his once good bud to lie to the Feds.

     Carona got five and one-half years. Reportedly battling Alzheimer’s, he was released in May 2015, about a year early.

     It’s not only about jails. “Los Angeles” is a mix of incorporated areas patrolled by LAPD and unincorporated communities watched over by the Sheriff. Both officers and deputies must deal with low-income neighborhoods beset by street gangs. Over time, their unforgiving atmosphere rubbed off on more than a few lawkeepers. “Two Sides of the Same Coin” described the nefarious activities of long-standing deputy cliques, among them the East L.A. station’s “Little Devils,” the Lynwood station’s “Vikings,” and a special enforcement team that dubbed itself “The Jump Out Boys” and whose members sported tattoos depicting human skulls.

     LASD’s badge-carrying deputy/gangsters tried to live up to their evocative monikers, glorifying the use of force, celebrating killings as “rites of passage” and harrassing pesky superiors by tying dead dogs to their cars. Falsifying reports and “making things up” were also on the plate. That last approach was also favored by some members of LAPD’s elite “Metro” unit, who boosted their “numbers” by falsely claiming that nearly everyone they stopped was a gang member.

     To be sure, cops and deputies have both engaged in some serious mischief. Still, it matters whether their leaders are appointed chiefs or elected sheriffs. LAPD Chief Michel Moore reports to a Police Commission and a Mayor. When aggrieved citizens and interest groups groused about his underlings, he had little option but to investigate. His inquiry has so far yielded the indictement of three Metro officers and the tossing of many cases against citizens they arrested while on patrol.

     On the other hand, L.A. Sheriff Alex Villanueva – you know, the one ostensibly in charge of the Little Devils, the Vikings and the Jump Out Boys – has steadfastly resisted efforts to clean house. And something seems called for, as lawsuits over his deputies’ excessive use of force and other misdeeds have sucked a tidy $149 million from the County’s coffers over the last five years.

     But Sheriff Villanueva’s fellow elected officials lack a ready lever to pull. Unless Los Angeles County amends its Charter to institute a procedure for removing the Sheriff, his or her tenure will continue to be decided by the voters. Given such constraints, several flustered members of the L.A. County Board of Supervisors recently demanded that Villanueva resign:

With a sheriff that is unwilling to demand accountability for deputy misbehavior, lawsuits will continue to be filed against the sheriff, and it is the county’s taxpayers who will continue to pay for the consequences.

     Well, good luck with that. Interestingly, unlike defrocked O.C. Sheriff Mike Carona, whose actual experience was reportedly limited to guarding courthouses, Sheriff Villanueva sports extensive creds as a patrol deputy and field supervisor. So when he was first elected in 2018 (on the Democratic ticket, no less) law enforcement professionals cheered. Finally, here’s someone who knows full well what can happen when fallible humans pin on a badge. Alas, the new Sheriff may have turned out to be more of a pushover than one might have hoped for. He also faces hordes of strong-willed deputies and their union. So the impasse continues.

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     How might it be resolved? There is one possibility. California Government Code sec. 12560 stipulates that “The Attorney General has direct supervision over the sheriffs of the several counties of the State.” Nothing in the text, though, defines “supervision” or how it can be exercised. But Sheriff Villanueva’s intransigence recently led California to enact a law that lets counties create civilian “sheriff oversight boards.” Los Angeles County supervisors promptly took advantage. And only last month, a judge ordered Sheriff Villanueva, who refused to appear voluntarily, to honor the new board’s subpoena. So we’ll see.

     Meanwhile, as we wait for all of La-La land’s cops and managers to take the high road, is there a real, permanent fix? Of course. Change State laws and Constitutions so that Sheriffs are appointed officials and report to County executives. Given that nearly all are presently elected, though, doing so would require a national reassessment. But nothing good comes easy, right?

     So keep wearing those masks and we’ll see you in 2021. Happy New Year!

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Punishment Isn’t a Cop’s Job (II)     Want Happy Endings? Don’t Chase     A Recipe for Disaster

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TURNING COPS INTO LIARS

Keeping score can distort what officers do

     For Police Issues by Julius (Jay) Wachtel.  What do “Adrian Flores, Jasean Carter, Dontae Kelly, Juan Garcia, Lamonte Jenkins, Jameis Beatrice, Wilford Jones, Jammeal Quaran, Rapaul Winston, Marquis James, Devon Canzalez, Ramon Gutierrez, Hector Amaya, Wilmer Francisco, Julio Espinosa, Gerald Matthews and Jorge Rodriguez” have in common?

     If you guessed “they don’t exist!” give yourself a pat on the back. A massive complaint filed by the L.A. County D.A. alleges that these seventeen characters were “fictional persons” brought to life by three LAPD officers who during the period March 2018 to January 2019 submitted field interview cards falsely claiming that each had been stopped and duly identified as a gang member.

     So what do “Jaron P., Angelo M., Chris C., Kivon W., Alden O., Isiah B., Lawrence J., Antonio M., John S., Gadseel Q., Jose Q., Justin H., Emmanuel B., Bryan G., Jose J., Billi J., Alejandro R. and Andres A.” have in common?

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     If you guessed “they’re real, but not gang members” have one on us! According to the complaint, these were real people whom the officers falsely labeled as belonging to a street gang. Officers had helpfully supplied each one’s purported moniker (e.g., “Dub Bird”) and, for most, described their gang tattoos.

     Natch, once the jig was up each F.I. card became a separate felony count of “Preparing False Documentary Evidence” (Calif. Penal Code section 134.) Officers also included false gang affiliations in crime reports; each became a felony count of “Filing a False Report” (P.C. 118.1.) Including conspiracy (P.C. 182[a][5]), the cop who apparently led the enterprise was charged with fifty-nine counts. One of his partners was included in thirteen; another in five.

     In all, the damage done seems substantial. In addition to influencing enforcement and prosecutorial decisions, the bogus data was entered into the statewide Cal Gangs database, becoming a source of misleading information and saddling dozens with unearned “gang” labels that could, among other things, make them vulnerable to enhanced sentencing should they be convicted of crimes in the future. Concerns about abundant falsehoods recently led the State Attorney General to strip all LAPD contributions from the database.

     As things stand, there won’t be any more. In “Recipe for Disaster” we discussed how the mess first came to light. According to a January 7 LAPD news release, an internal inquiry began when a mother contested the accuracy of an official letter informing her that her son was a gangster. As they compared officer body-cam videos with field interview cards – the technique that prosecutors say underpinned the charges – internal affairs investigators came to believe that as many as twenty members of LAPD’s elite “Metro” group had been  exaggerating their productivity by simply making things up. While some of the inconsistencies were ultimately attributed to errors and such, there was no mistaking a fifty-nine count criminal complaint. And once that lid blew LAPD Chief Michel Moore decided to withdraw his agency from CalGangs altogether.

     By this point, complaints from Black citizens that they were being unfairly targeted had led the chief to reorient Metro from stop-and-frisk to other approaches (see Scapegoat, Part I.) But it’s not as though LAPD can simply back off from crime-fighting. Major-city violence has definitely taken a turn for the worse. Through July 11 LAPD reported 151 homicides compared with 134 during the same period last year. An even sharper increase has beset New York City. Through July 12 its portal reports 203 murders and 634 shootings compared with 165 and 394 during that period in 2019. Commenting on the spike, NYPD Commissioner Dermot Shea blamed areas “overrun by gangs”:

There is a lot of gang activity, a lot of drug activity. It's bad people with guns, and it doesn't get any simpler than that. People settling scores, spraying a crowd.

Ditto Chicago. Its Compstat pages report 385 murders and 1541 shootings in 2020 through July 12 compared with 260 and 1059 during the same period in 2019. (Click here for the Tribune story.) As  academics occasionally concede, intensively policing troubled areas (i.e., “hot spots”) can tamp down violence. So while the Windy City’s Black police chief, David Brown, says he’s sensitive to the concerns of the post-George Floyd era, the appalling forty-eight percent increase in killings led him to revisit the concept of a citywide violence suppression team that could prevent and if necessary deal with flare-ups. Um, a  “Metro” group, so to speak.

     New York City, Los Angeles and Chicago maintain public Compstat portals that offer detailed statistics on crimes including murder, sexual assault, robbery, aggravated battery, burglary, theft and motor vehicle theft. Data is aggregated weekly, and the manner of its display enables ready comparisons over periods as long as four years. Bottom line: these are the numbers, and numbers don’t lie! Although aggregate crime statistics obscure the fact that many neighborhoods remain disproportionately impacted by violence (see, for example, “Place Matters”) New York and Los Angeles are fond of bragging about their “crime drops.” Police brass inevitably feel judged (and undoubtedly are judged) by crime numbers, their change over time, and how their cities compare with other places. Should they feel discontent, subtle and not-so-subtle pressures to assign serious crimes to lesser categories can flow through the ranks (see, for example “Cooking the Books”). Transforming “aggravated” assaults into “simple” assaults – or, even better, not reporting them altogether – can help everyone’s prospects, from a lowly precinct Captain all the way to the chief. And, come election time, even the mayor!

     Such tricks have their limits. It’s a lot tougher to ignore bodies as they pile up. So even in today’s atmosphere, when calls for the police to back off seem pervasive, the “bluest” of the media will jump on the cops should things spin murderously astray. Consider, for example, this July 16 piece in the New York Times: “Shootings Have Soared. Is the N.Y.P.D. Pulling Back?” Here’s a small slice of its pan:

Arrests have declined drastically this summer, falling 62 percent across the board for the last four weeks compared with the same period last year, police data show…Gun arrests have dropped 67 percent during the same four weeks compared with last year, even as shootings have continued to spiral upward.

Despite its reputation as a police scold, the Times is sparing no effort to disparage officers for supposedly  doing less. For a bit of whiplash, keep in mind that it was criticism from the “blues” that drove NYPD to disband a citywide anti-crime unit that focused on getting guns off the street. A mere month later, the same commissioner who pulled the plug is planning to reverse course.

     He’ll discover what police well know. To have a real effect on violence requires more than filling out cards. It calls for smartly targeted stops that yield a substantial increase in desirable outcomes such as gun seizures and arrests. But making more such stops legally – that is, with adequate justification – can prove challenging under the best of circumstances. Now consider the charged, production-oriented environment officers faced in Metro:

Multiple law enforcement sources told NBCLA’s I-Team that Metro Division officers had been pressured by their commanders to show that their patrols were productive. Officers assembled daily statistics about the number of people they stopped and questioned, the number of contacts with gang members, the number of arrests, and other metrics.

     While the LAPD hierarchy “denied there was pressure to produce any particular type of statistics,” the potentials for abuse are obvious. Your blogger was well aware of pressures to produce throughout his law enforcement career. Indeed, they became fodder for his doctoral dissertation, “Production and Craftsmanship in Police Narcotics Enforcement” (for an article based on this work click here.) What he discovered wasn’t exactly new: doing a “quality” job in policing is like doing “quality” work in any other craft. Say, woodworking. It requires attention to detail and a commitment to do one’s best without cheating or taking shortcuts. Should outcomes prove less than perfect good cops own up to their mistakes, do what they can to fix things, and hopefully use what they learned to prevent flub-ups in the future.

     Where to start? We must define precisely what “quality” means for each task, from patrol to the chief. If counting has a place – after all, for duties such as traffic enforcement, numbers can be useful – its role must be clearly articulated. One could use the process your blogger recently articulated in Police Chief magazine (“Why do Officers Succeed?” Click here and scroll to p. 26. Or contact the writer and ask for a .pdf).

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     In this numbers-obsessed, Compstat-driven era, “productivity metrics” have reached absurdist heights (for an example click here.) They’ve provided officers so inclined an impetus for out-and-out lying, as exemplified in the accusations against LAPD Metro’s “three bad apples.” More broadly, society’s  obsession with counting, which we’ve traced to a late defense secretary’s obsession with counting “bombs dropped, acres deforested and enemy killed” during the Vietnam war has displaced other, far more worthy objectives. Like building safe planes. And dispensing the right drugs. And, in policing, properly arresting the truly deserving. Let’s quote one of the narcotics detectives we interviewed for that long-ago dissertation (article, p. 269):

Make cases, put people in jail, numbers. Our department right now is heavily into numbers. It’s not so much the quality of the case but it’s how many cases you do…because there are stat’s being taken through the chain of command.

     Imploring officers to do quality work while our fingers are crossed behind our backs can only contribute to the cynicism. Management’s commitment to do “well” instead of “more” must be genuine. As that old Ford ditty goes, let’s truly make quality “Job #1”!

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GOLD BADGES CAN BE THE PROBLEM

“Ordinary” cops often know what’s best. They should act on it.

     For Police Issues by Julius (Jay) Wachtel. It wasn’t Buffalo’s best weekend. On Saturday evening, May 30, protesters besieged Niagara Square, the city’s government center. Vandals quickly capitalized on the disorder. After setting a bail bonds van on fire they tried (albeit, unsuccessfully) to torch City Hall, then went on a looting spree.  Two days later an S.U.V. “barreled through” a group of cops, striking three.  A state trooper was seriously injured, suffering a broken leg and shattered pelvis.

     Lamenting that lawful protests were being used as “a cover to loot, to vandalize, to throw rocks, to try to injure,” Mayor Byron Brown declared an 8 pm curfew, to remain in effect through the following Sunday. He also implored his constituents to tone it down:

Protest with a purpose, and peacefully. If you don't have a purpose to protest, if you don't have a message to protest with, stay home…please do not protest unnecessarily…the message is out. We get it. We feel it…as a black man who happens to be mayor, or a mayor who happens to be black, I feel the sting and pain of racism every single day myself.

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     His heartfelt message had little effect. Two days later, on Thursday, June 4, demonstrators blockaded City Hall. Police cleared the front of the building, making several arrests. Hours later, as curfew began but deomnstrations continued, the city’s nearly-60 strong tactical team moved in on protesters who remained in Niagara Square.

     That’s when “it” happened again. As often happens, “it” was captured on video. As Buffalo’s specially-formed riot squad marched towards the non-complying delinquents, Mr. Martin Gugino, a septuagenarian “peace activist” walked right up holding “what appears to be a phone in his right hand and a helmet in his left.” A pair of officers positioned directly in front of their commander (he’s the one with the gold badge) promptly pushed Mr. Gugino away, by all appearances not very forcefully.
 

Alas, the elderly activist lost his balance and fell backwards. His head forcefully struck the ground, and a pool of blood promptly formed. While the formation kept going, one of the officers who shoved him knelt to render aid. But the one with the gold badge pushed him away. After all, the old-timer wasn’t their objective. Keep moving!
 

Alas, the officer obeyed. Without as much as kneeling to check the man’s pulse, his superior placed a quick radio call (assumedly, to summon medical help) and quickly rejoined the team. He in effect abandoned a stricken citizen. Momentarily officers at the front encountered a picketer and handed him down the line. The “job” was on!

     A couple weeks ago in “Punishment Isn’t a Cop’s Job” we commented on the “impassivity,” the “look of indifference” on that long-serving Minneapolis cop’s face as he pressed his knee against a citizen’s neck. Two rookies were present, and at least one expressed concern that maybe – just maybe – George Floyd really couldn’t breathe. But the training officer ignored him.

     Something very much like that happened again. Why?

     Perhaps because Buffalo P.D. conflated its team with a military unit. That identity likely took hold when the riot squad was conceived and was carried over into training, then into the field. Whatever the one with the gold badge wants, they get. And when a misguided leader abandoned the seriously injured man and relentlessly kept his “troops” moving towards their objective, the silver badges obeyed. So it’s their fault, too. After all, it’s not as though the cops were under attack. They were rounding up curfew violators! There was no reason that the team couldn’t have paused or that several members couldn’t have fallen out to carry out the core function of the police – their raison d’etre: helping citizens, even elderly truants.

     But they didn’t. That “lack of concern” (the words of State Attorney General Letitia James) deeply troubled Erie County Executive Mark Poloncarz:

The officer who pushed the individual down, I think he realized right away the gentleman was severely hurt, and it looked like he was reaching down to help him. And then his superior seemed to push him to go forward. That one action, I hope, does not destroy the efforts of so many to reach that agreement for all, that we can work together.

     Bottom line: a gold badge directed his officers away from their real job. And as in Minneapolis, the underlings went along. In other times there might have been little blowback. Not this time. Exploding in the media, the incident ricocheted through a deeply polarized landscape and provoked even more antagonism towards the ruling class. As in Minneapolis, worried politicians instantly reacted. Calling the episode “fundamentally offensive and frightening,” Governor Andrew Cuomo promptly urged that the two Buffalo officers be fired and criminally investigated.

     He got his wish, and more. Within one day of the episode Buffalo’s mayor suspended both officers suspended without pay. (His action led every member of the team to resign from the unit.) And merely one day after that, both cops found themselves under arrest for 2nd. degree felony assault. To make the case stick Erie County prosecutors will have to prove that the officers intended to injure a person over the age of 65 and at least ten years older. Both cops pled not guilty and were released pending their next court date, on July 20.

     Well, Mr. Gugino is seventy-five, so the age thingy isn’t at issue. (At this writing he’s thankfully improved and is in “serious but stable condition.”) Yet we’ve repeatedly watched the video and can’t fathom how the State intends to prove “intent to injure.” Both officers were marching directly in front of (and assumedly protecting) their commander. Mr. Gugino clearly interfered with the team’s progress, and that shove to get him out of the way doesn’t seem violent. For a prosecutor to argue that the officers intended to make him fall and crack his skull seems a very big stretch. Beyond a reasonable doubt? No way. On the other hand, third-degree assault, which can be satisfied by reckless conduct alone, is a misdemeanor. Natch, in these ideologically charged times, county prosecutors – they’re politicians, after all – are unlikely to risk being accused of favoring rogue cops. Whether jurors might, who knows?

     To be sure, what the silver badges did was nonetheless troubling. A recently updated page of DOJ’s “law enforcement misconduct” section points out that officers who fail to intervene when colleagues are violating someone’s Constitutional rights can be held civilly and criminally liable. That’s not news to the police, for whom such regulations are relatively commonplace. For example, here’s an extract from the LAPD manual:

210.46 EMPLOYEE'S DUTY TO REPORT MISCONDUCT. The reporting of misconduct and prevention of the escalation of misconduct are areas that demand an employee to exercise courage, integrity, and decisiveness. Department Manual Section 3/813.05 requires that when an employee, at any level, becomes aware of possible misconduct by another member of this Department, the employee shall immediately report the incident to a supervisor or directly to Internal Affairs Group. Furthermore, an employee who observes serious misconduct shall take appropriate action to cause the misconduct to immediately cease. The fact that a supervisor is present and not taking appropriate action to stop the misconduct does not relieve other employees present from this obligation.

Minneapolis has had a like policy on the books for several years:

5-303.01     DUTY TO INTERVENE (07/28/16) (A-D)

A.    Sworn employees have an obligation to protect the public and other employees.

B.     It shall be the duty of every sworn employee present at any scene where physical force is being applied to either stop or attempt to stop another sworn employee when force is being inappropriately applied or is no longer required.

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Ditto, Buffalo (General Order 2019-010, Section 6.2E):

DUTY TO INTERVENE

Any officer present and observing another officer using force that he/she reasonably believes to
be clearly beyond that which is objectively reasonable under the circumstances shall intercede to
prevent the use of unreasonable force, if and when the officer has a realistic opportunity to
prevent harm.

     Thanks to current events, “duty to intervene” policies are being quickly adopted by agencies that lack them (for Dallas, click here.) Yet our reading suggests that both existing and new policies tend to focus on use of force, not on rendering aid. They also fail to articulate that the obligation to help citizens in distress overrides supervisory directions. Of course, authorizing underlings to decide whether to obey orders is fraught with complications. Until police management experts untangle that issue, agencies ought at a minimum to abandon the military approach to police operations. They should also explicitly direct officers and supervisors to immediately stop and provide aid should someone appear to be in even moderate distress. And to remain there until, say, the medics arrive.

     And yes, as far as we know, the (disbanded) unit’s leader still has that gold badge.

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Punishment Isn’t a Cop’s Job

PUNISHMENT ISN’T A COP’S JOB

An officer metes out his brand of discipline. He then faces society’s version.

This post now has its own section. Click here.

WHEN SHOULD COPS LIE?

NYPD detectives tweak an old approach. But lying is still lying.

     For Police Issues by Julius (Jay) Wachtel. When it comes to the human costs of violent crime it doesn’t get much worse than what happened in a Harlem-area park during the evening hours of December 11, 2019. Three young hoodlums – one only thirteen, his accomplices a mere fourteen – approached a college freshman, Tessa Majors, 18, and demanded she give up her cell phone. And when she refused, one of the 14-year olds stabbed her to death.

     Park video images depict three boys trailing a man, and, later, running off. Using additional videos detectives tracked the suspects to their homes. Officers subsequently spotted the youngest on the street, and when he tried to elude them by darting into a nearby building they arrested him for trespassing. After consulting with prosecutors, police summoned the boy’s uncle. In his presence they questioned the teen on video.

     He initially denied everything. “I don’t know about the stabbing. I don’t know about the stabbing,” the youth protested. So the detective told some fibs:

Then Detective Wilfredo Acevedo leans over and says the police have video footage and other evidence that puts the boy and two middle school friends at the park when Ms. Majors was killed. “I’m going to be asking questions,” Detective Acevedo says. “I already know the answers.”

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Detective Acevedo didn’t simply act the tough guy. He reassured the boy that he didn’t consider him “a bad kid” and asked whether his uncle had taught him right from wrong. Lying to police, he cautioned, would bring on “a lot, a lot of trouble.”

     In time the artfulness paid off and the boy talked. He and two classmates, both fourteen, went to the park to rob someone. But he didn’t stab the victim: one of the fourteen-year olds did that. Throughout, his confession was directed at the uncle. That, as Detective Acevedo later testified, was reassuring. “His response was to his uncle, not to me. I felt it was more forthcoming, more truthful.” That proved of scant comfort to the boy’s public defender, who protested that the uncle was ill-suited to oversee the interrogation, as he couldn’t be expected to know that the detective could legally lie. But the officer brushed concerns about the voluntariness of the statement and the child’s credibility aside. “I just wanted him to tell me what occurred in the park. That’s all. We can lie, yes.”

     After two months of accumulating a veritable “trove of evidence,” including the murder weapon, a DNA match, and of course, an evildoers’ own words, prosecutors charged the three boys with robbery and murder: the 13-year old, as a juvenile, and his 14-year old companions as adults, as New York law allows in exceptional cases. Trials are pending.

     This isn’t the first time that New York’s finest lied to kids to get them to fess up. A particularly notorious episode, the “Central Park Five,” took place in 1989. In the end, five teens ranging in age from fourteen to sixteen were convicted of assaulting and brutally raping a woman who had been jogging through the landmark Manhattan park. We reported on the fiasco nearly six years ago, on the same day that the City of New York awarded the five wrongfully convicted boys a total of $41 million, “about $1 million for each year of their imprisonment.”

     No, the five weren’t total innocents. They were among several dozen young miscreants who were roaming the park that evening, assaulting and robbing innocent persons. Several of the five were also convicted in a couple of those crimes. But none were involved in the woman’s brutal rape and beating. As it turns out, the real culprit remained unmolested and went on to commit other rapes and a murder. It was only years later, after he was caught, convicted and sentenced to life on those crimes, that a guilty conscience led him to admit he alone committed the Central Park rape. He had no connection with any of the five boys, and his confession was confirmed through DNA.

     Given the lack of witnesses or physical evidence tying them to the crime, how were the five convicted? By their own false admissions, in which they falsely pointed fingers at each other. Interrogators exerted subtle and not-so-subtle pressures to fess up. One boy was told that his cooperation might bring on leniency or even transform him from a defendant into a witness. Raymond Santana, the youngest, was told that police “had evidence” against fifteen-year old Kevin Richardson. But they wanted more, and if Santana “just helped them build a case against Richardson by placing himself into the crime scene, he’d get to go home.”

     Officers also flat-out lied about the evidence they had. During the trial of Yusef Salaam, NYPD Det. Thomas McKenna testified that when the youth was first questioned he repeatedly denied having been in the park. So Det. McKenna warned him that if the “satiny and smooth” fingerprints found on the jogger’s pants matched his, “you're going for rape.” That lie – in fact, no fingerprints were found – changed Salaam’s tune. “Yes, I was there but I didn't rape her,'' the fifteen-year old said.

     Over the years, psychological methods of interrogation have become increasingly sophisticated, employing ever-more subtle forms of manipulation, deception, and coercion. It’s no longer as apparent why innocent persons may falsely confess to crimes that carry the possibility of lengthy prison sentences or execution. New York’s detectives took an approach that closely resembles the popular “Reid” interrogation technique that we wrote about in “False Confessions Don’t Just Happen.” Among other things, Reid encourages officers to suggest “themes or reasons” that allow suspects to retain a sense of self-worth as they confess. Far removed from the nasty, old-fashioned “third degree” of T.V. and the movies, this method’s subtlety helps further the belief that the confessions it produces must be true.

     As one might expect, detectives investigating the more recent Harlem attack quickly tried to distance their case from the Central Park fiasco. Prosecutors were promptly called in, and interrogators didn’t wait for arrestees to change their tune before they turned on the tapes. So we should feel better about this case. Right?

     Perhaps. This time, jurors will actually hear the police lies and blandishments and have a better basis for considering any possible ill effects. There is also a lot of other evidence suggestive of the boys’ guilt. On the one hand, that’s a relief. On the other, it complicates things, as the corroborative effects of other evidence could distract jurors from considering the possible ill effects of manipulative questioning.

     What does the law have to say about lying to suspects? According to the Supreme Court, deceptive questioning may not by itself be enough to render an otherwise admissible confession involuntary. In a leading case on point, the Court affirmed a murder conviction even though police “falsely told petitioner, who was reluctant to talk, that Rawls [his cousin] had confessed.” (Frazier v. Cupp, 394 U.S. 731, 1969). According to the Court, voluntariness isn’t determined by a single factor but by the “totality of the circumstances” (Schneckloth v. Bustamonte, 412 U.S. 218, 1973):

In determining whether a defendant's will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation [such as] youth of the accused…low intelligence…lack of any advice to the accused of his constitutional rights…length of detention…repeated and prolonged nature of the questioning…use of physical punishment such as the deprivation of food or sleep.

     States are of course free to adopt stricter standards. In State v. Eskew (207 MT 36, 2017) the Montana Supreme Court reviewed the conviction of a mother who allegedly shook her infant to death. During a protracted interrogation, detectives got her to mimic shaking a baby after suggesting it was the only way she could help her child, whom they knew was no longer alive. Setting aside the conviction, the justices ruled that “confessions or admissions like the ones in this case, induced by deliberate psychological coercion, lies, and material misrepresentations to the suspect are not voluntary and should be excluded from evidence.” (Click here for the National Registry of Exonerations entry.)

     Confronting an eerily similar set of facts, New York’s high court ruled in 2014 that local police went too far when they told a father that he could save his son by confessing. Their opinion in part reflected a state law that defines as involuntary “any promise or statement of fact [which] creates a substantial risk that the defendant might falsely incriminate himself.” Well, that seems pretty stern. We’ll have to see how it plays out in the Harlem case.

     On the opposite coast, legal controls seem substantially weaker. California follows the Federal “totality of the circumstances” standard.” Here’s an extract from the California Supreme Court decision in People v. Farnam (28 Cal.4th., 2002):

Defendant…contends the following circumstances established the involuntariness of his confession: he was young; he had a low intelligence; he was left overnight in a cell; he was distraught; he had been smoking marijuana; and the police psychologically coerced his confession by falsely telling him his fingerprints were found on Mr. N.'s wallet…That [detective] Huff and his partner falsely informed defendant his fingerprints had been found on Mr. N.'s wallet did not render defendant's subsequent confession to the N. and Griswold crimes involuntary… Viewing the totality of the circumstances, we are satisfied that defendant's confession was the product of a rational intellect and a free will.

What’s the problem with that? “Your Lying Eyes,” one of the very first posts in our “Wrongful Conviction” section, recounts the exoneration of David Allen Jones (for his National Registry entry, click here):

A mentally retarded man with an IQ of 62, [Jones] was talked by LAPD detectives into confessing to murdering four prostitutes in 1992. Although DNA recovered from the victims was not his, Jones was nonetheless tried and convicted….Nine years later, an LAPD detective working cold cases matched the four rape/murders attributed to Jones plus six more to another man already in prison for rape.

And for a real head-shaker check out “Lying: the Gift That Keeps on Giving,” an early post in our “Conduct and Ethics” series. In 2003, LAPD homicide detectives used a purposely altered photospread to convince a murder suspect – he wasn’t in custody – that one of his acquaintances identified him as the killer. (She hadn’t.) So he killed her.

     Switching gears, let’s leave the law behind and take an ethical perspective. Ought law enforcement officers ever lie? Ever manipulate? Ever bluff? Your blogger, who spent two decades as a Fed, can offer no easy solution. His post-arrest interrogation style – and that of most his colleagues – was factual and direct. But we didn’t lie, use the “Reid” technique or employ any other special approaches; for example, such as the FBI says it uses with “high value detainees.” Our work, though, was mostly about gun trafficking. We didn’t investigate murders. It wasn’t our job to catch rapists and killers before they struck again.

     Still, it seems best to not lie. And especially, to avoid pressuring individuals most likely to falsely confess, such as children and the grief-stricken. On the other hand, if someone’s safety is at risk, such as a kidnap victim who’s still missing, then lie and cheat to your heart’s content.

     Police lying doesn’t just happen during interrogations. Your blogger spent a couple years working undercover, posing as a buyer of stolen property, including guns. (He was known as “Jay,” and the nickname stuck.) Jay’s job was intrinsically as a deceiver, and the better his lies, the better the results. If there was a saving grace ethics-wise, it lay in the inducements. Instead of wielding the interrogator’s hammer of the state, Jay was offering a reward – cash – to persons who were ostensibly exercising free will.

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     Yes, that too is morally complicated. (For more about this, check out “From Morals to Practice,” Jay’s article about the ethical dilemmas of undercover policing.) But don’t just take his word for it. Three years ago, in “You Can’t Handle the Truth: A Primer on False Confessions,” Craig J. Torcino warned, eloquently and in great detail, about the consequences of police manipulations:

There are measures to be taken to stem the tide of false confession in American courts and they are well documented. From mandatory videotaping of all interrogations to more enlightened means of interrogation beyond the Reid Technique. The causes of false confessions and their damage are known. Now is the time to stimulate efforts for remedial action.

     Well, that’s it for this round. From our home in Orange County, California, where Linda and I have hunkered down against that implacable microscopic foe, we send our best wishes. Stay well!

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Guilty Until Proven Innocent     Wrongful and Indefensible     False Confessions Don’t Just “Happen”

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From Morals to Practice: Dilemmas of Control in Undercover Policing

A RECIPE FOR DISASTER

Take an uncertain workplace. Toss in a “mission impossible”
and pressures to produce. Voila!

     For Police Issues by Julius (Jay) Wachtel. Early last year a mother received a letter from LAPD informing her that her son was a gang member. Shocked by the news, the parent promptly marched off to a police station where she vehemently insisted that her kid had nothing whatsoever to do with gangs. LAPD apparently took her complaint to heart. After reviewing the reporting officer’s bodycam footage and “finding inaccuracies in the documentation,” a supervisor contacted the parent and assured her that the teen would not be identified as a gangster.

     To its credit, LAPD launched an expansive inquiry. During the following months many members of the agency’s specialized “Metro” division came under investigation. Twenty were ultimately stripped of their official duties. Their alleged misconduct – incorrectly reporting on field interview cards that persons they stopped were gang members – had seriously compromised the agency’s gang database. One of eight regional systems that comprise the state’s “Cal Gang” intelligence network, its use is governed by State law. Only specially certified law enforcement officers can access the system, and adding entries is strictly regulated. Among other requirements, targets for inclusion must meet at least two of eight specified criteria, such as admitted gang membership or displaying a gang tattoo, and must have been contacted not just once but “on multiple occasions.”

Click here for the complete collection of conduct and ethics essays

     An August 2016 report by the California State Auditor revealed widespread noncompliance with these rules. LAPD, in particular, was singled out for serious and persistent lapses. Yet its problems apparently persisted. Public blowups over LAPD’s controversial stop-and-frisk campaign (see, for example, “Scapegoat,” Part I) recently led Chief Michel Moore, a veteran officer who took the helm in June 2018, to publicly announce his determination to right the ship:

I don’t mean this to go on for months or years. I will make a finding on the basis of the completed investigation as to appropriate disposition — whether that be sustained acts of misconduct, including the potential criminality....

     “Criminality”? Well, fudging the facts so that a stopped person meets the criteria for inclusion into a gang database sure seems like a purposeful falsification of official records. But why would an officer do that? L.A.’s a busy place, and it’s not as though its street cops lack for things to do. Chief Moore’s angst, though, wasn’t directed at ordinary badges but members of the elite “Metro” group, which had been assigned to conduct “intensive patrol” – meaning, of course, stop-and-frisks – in neighborhoods beset by gangs and gunplay.

     We’ve suggested in a string of essays (for example, “Driven to Fail” and “Good Guy/Bad Guy/Black Guy, Part II) that get-tough campaigns inevitably lead to a profusion of “false positives.” That’s created major angst among members of minority groups, and not just in Los Angeles. Still, given the high rates of violence that characterize many lower-income areas, their police feel obliged to do something. How the outcomes of that “something” get assessed and measured presents some complex dilemmas.

     In a new, thought-provoking article, the L.A. Times reported that managers evaluated Metro’s cops on sixteen criteria, from arrests and citations to “field interviews of gang members.” As we mentioned in “Driven to Fail,” Metro’s teams were unfamiliar with their assigned areas’ patterns and worthy inhabitants. So they adapted, in part, by focusing on pre-identified “chronic offenders.” Finding and discreetly following noteworthy prey until there’s enough to justify a “Terry” stop, though, proved no easy task. Targets of opportunity became a fallback strategy.

     Whether cops free-lance or shadow known targets, the uncertain environment of policing virtually guarantees a profusion of error. Let’s self-plagiarize:

Policing is an imprecise sport. And when its well-intended practitioners target geography, meaning, by proxy, racial and ethnic minorities, the social impact of this “imprecision” can be profound. NYPD stopped nearly six times as many blacks (2,885,857) as whites (492,391). Officers frisked 1,644,938 blacks (57 percent) and 211,728 whites (43 percent). About 49,348 blacks (3 percent) and 8,469 whites (4 percent) were caught with weapons or contraband. In other words, more than one and one-half million blacks were searched and caught with…nothing.

     Not every unproductive encounter reflects an error of judgment. There were likely more than a few worthy characters among those whom Metro had to ultimately let go. How many? Lacking clear data, it’s impossible to know. Yet the abundance of apparent “false positives” created an ideal platform for critics unfamiliar with the vagaries of the police workplace to jump to the conclusion that cops are racists. That, along with relentless pressures to produce measurable outcomes, created a vicious cycle well known to cops who have participated in get-tough-on-crime campaigns. Fudging someone’s gang involvement is a lie, period. But given the intrinsic difficulties of their “mission impossible,” Metro’s officers might have thought it the surest way to score enough “hits” to satisfy superiors while keeping nettlesome citizens, reporters and civil libertarians off their agency’s backs.

     Pressures to produce aren’t just a problem at LAPD and NYPD. They’re endemic to policing. Demands from the top to “give us numbers,” which ultimately land on the shoulders of those who occupy the bottom of the flow chart, were obvious to the blogger throughout his law enforcement career. So much so that it inspired the topic of his dissertation. Entitled “Production and Craftsmanship in Police Narcotics Enforcement,” it explored the tension between quantity and quality in street drug enforcement. (For an article based on this work, click here.) Here’s just one of the many memorable quotes from a “worker bee”:

Make cases, put people in jail, numbers. Our department right now is heavily into numbers. It’s not so much the quality of the case but it’s how many cases you do…because there are stat’s being taken through the chain of command.

     Not even your blogger, who’s obsessed with the notion of craft, would suggest that numbers are wholly irrelevant. Citation counts, for example, can be one valid measure (hopefully not the only measure) of the quality of an agency’s traffic enforcement effort. Yet counting can easily distort what takes place. That’s not only true in policing. Unholy pressures to produce quantifiable miracles pervade government, commerce and industry. (In education, your writer’s second career, it was “how many graduates did we have this year?”) But let’s take a really long reach. Consider the Boeing 737 fiasco. Is there any doubt that pressures to maximize profits impaired the quality of engineering? Here’s an extract from the New York Times account of an official report filed by former senior engineer Curtis Ewbank:

…Ray Craig, a chief test pilot of the 737, and other engineers wanted to study the possibility of adding the synthetic airspeed system to the Max. But a Boeing executive decided not to look into the matter because of its potential cost and effect on training requirements for pilots. “I was willing to stand up for safety and quality,” Mr. Ewbank said in the complaint, “but was unable to actually have an effect in those areas. Boeing management was more concerned with cost and schedule than safety or quality.”

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     All lies aren’t equal. “Why do Cops Lie?” and other posts in our Conduct and Ethics series offer eye-popping examples of bias, selfishness and greed. Perhaps some of these qualities apply to a few of Metro’s officers as well. But it seems to us that the relentless characteristics of the workplace might have led some otherwise honest, hard-working cops to justify seemingly unproductive stops by fudging their subjects’ gang affiliations. Given the circumstances, these might have seemed like only “little white lies.”

     Of course, in policing there is no such thing.

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Special topics: Craft of Policing     Stop-and-Frisk

Wrong Place, Wrong Time, Wrong Cop     When Worlds Collide     Punishment Isn’t a Cop’s Job (I) (II)

Massacres, in Slow-Mo     Regulate. Don’t Obfuscate!     Is the “Cure” Worse Than the “Disease”?

Cop? Terrorist? Both?     Select – Don’t “Elect”    Turning Cops Into Liars    Urban Ship    Place Matters

Scapegoat (I) (II)     Driven to Fail     Mission Impossible?     Why do Cops Lie?

Good Guy, Bad Guy, Black Guy (Part II)     A Very Hot Summer     The Numbers Game

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The craft of policing     Production & craftsmanship in police narcotics enforcement

Improving policing by integrating craft and science (Willis & Mastrofski, Policing and Society, 2018)

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