Prosecutorial Misconduct And Police Lying Need To Be Part Of Criminal Justice Reform
We all know that there is a two-tiered justice system in this country. It’s what allows Don Jr. and Ivanka to essentially buy off the Manhattan DA and avoid a fraud prosecution. It’s what allows Harvey Weinstein to buy off that same Manhattan DA and avoid prosecution for sexual assault. But there is a flip side to that justice system and it is prosecutorial and police abuse.
In New Orleans, a new report shows that local prosecutors in that city routinely sent out fake subpoenas in order to coerce witnesses into testifying. “Topped with the word ‘subpoena’ and the seal of the district attorney in New Orleans, the documents carried an air of authority. They instructed people to appear before prosecutors ‘to testify to the truth,’ and they warned that ‘failure to obey’ the missive could lead to a fine and imprisonment. But the personalized documents were never endorsed by any court. Instead,…the papers that were disguised as subpoenas were central to a sustained and fraudulent effort by local prosecutors to coerce witnesses”. As one ACLU lawyer said, “Creating their own templates that are purported to be valid legal documents to secure private meetings with witnesses is really on another level.”
Apparently, this had been relatively common practice in New Orleans since 1999. The practice increased when Leon Cannizzaro became the DA for Orleans Parish. Mr. Cannizzaro is not new to controversy. When a 20-year old murder conviction was overturned in 2014 because the Innocence Project uncovered clear evidence that exonerated the defendant, evidence that prosecutors withheld from the defense in the original trial, Mr. Cannizzaro refused to give up on the case. It order to retry the case, he would have to get the two original witnesses who had testified against the convicted to testify again. But those witnesses had been coerced by the police and prosecutors to gain their original, false testimony and refused to do so again. But, again, that did not stop Mr. Cannizzaro. He then charged the two witnesses with perjury, saying they had either lied in the original trial or when they recanted their original testimony in the proceeding that led to the overturned conviction in 2014. Rather than investigate the original coercion and prosecutorial misconduct twenty year earlier, Cannizzaro sent a very clear message to any other witnesses who might want to recant their false and coerced testimony in the future – do so at your own peril.
What is even more appalling about the fake subpoenas is that some witnesses who ignored the illegal subpoenas, often on direction from lawyers, were detained and held by prosecutors. According to the NY Times, “In one instance, according to the lawsuit, a woman was jailed for eight days after she refused to meet with the authorities about a murder case. In another episode, a victim of domestic violence was held for five days after defying the district attorney’s request.” The fact that these subpoenas that provided the basis for these individuals being held were entirely and knowingly illegal made no difference.
Of course, it now appears that prior cases where witnesses that were contacted using these fake subpoenas and then spoke to investigators under that threat may now be challenged in court. And that would probably open up an even bigger can of worms.
Meanwhile, in New York, the even more prevalent problem of police lying may finally be addressed by the courts. It all started with a typical case of petty drug dealing outside of a bodega. Cops arrested the buyer but were unable to catch the seller who had re-entered the store. A little while later, however, police went back into the bodega and arrested the cashier, despite testimony from another bodega employee that he had been in the store the whole time. They strip-searched him and found nothing. Eventually the charges were dropped.
The cashier did not drop it, however. He filed a lawsuit that accused the police officers of purposely coming back to the bodega and arresting him near the end of their shift so that they could rack up some more overtime. The judge handling the lawsuit noted that one of the officers had been already been suspended for reporting overtime work he did not perform. The two officers involved in the case managed to pad 22 hours of overtime on just this one arrest.
According to the NY Times, the judge has said that “after holding a trial on Mr. Cordero’s case early next year, he would, if Mr. Cordero proved his case, hold a second proceeding — to examine the prevalence of police lying and whether false arrests were being carried out to generate overtime. That second hearing, Judge Weinstein said, would focus on whether the Police Department has a policy of not taking ‘reasonable steps to control lying by police officers.'” I would imagine that it will be pretty hard to be able to limit a hearing on police lying to only those incidents that generated overtime and may expand into police lying in general.
Now this case is a minor case of police lying. We’ve seen far more egregious acts such as police planting drugs in Baltimore or innocent black men and women being shot down in cold blood where the video and ballistic evidence directly contradicts the police testimony. But the fact that these New York officers were simply lying to boost their overtime pay shows just how prevalent police lying has become.
Criminal justice reform is certainly important, especially sentencing reform for non-violent drug offenders. But the rot in the criminal justice runs far deeper than that. Prosecutors and police feel they can act with impunity. Prosecutors are protected by the law from being sued for their criminal acts that put innocent people behind bars. Police are rarely disciplined. Until that changes, we will still have a seriously flawed, but still two-tiered, justice system.
