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Conundrum

How Should a Judge Act If She Suspects Two Police Officers Have Testified Falsely?

March 28, 2004|Katherine Mader | Katherine Mader is a Los Angeles Superior Court judge who was the first LAPD inspector general from 1996-1999. Her last essay for the magazine was about tracing the history of relatives who disappeared during World War II.

The Rampart corruption scandal in the Los Angeles Police Department has been blamed partially on judges tolerating false testimony by police officers in criminal cases. Critics suggest that inaction by judges allowed bad officers to frame innocent suspects, and perpetuated corruption within the LAPD. "Not on my watch," I vowed. I became a judge three years ago and believed that I would have little difficulty recognizing problem testimony or knowing what to do about it.

I have since heard the testimony of hundreds of officers and generally have been favorably impressed. But one day I questioned the candor of two testifying officers involved in a drug bust -- and came to appreciate the difficulty of the situation for a judge.

The two officers, dressed in plainclothes, had been watching apartments where there had been complaints of narcotics activity. They testified at a preliminary hearing that they were walking by a second-story apartment when the door swung open and a 40ish woman clutching a piece of pizza said, "Want a slice?" She gestured toward a pizza box in the living room. The officers, members of a specialized narcotics task force, said they refused but accepted the woman's invitation to enter her apartment. Minutes later, they said, the woman requested a private chat in her bedroom with the senior officer, whom she knew from previous encounters was a police officer she could trust. Her bedroom floor was littered with zippered plastic bags, a clear message to a narcotics cop: This is where I package my dope for sale. A subsequent search of the apartment found illegal drugs, and the woman was charged with possession of narcotics for sale. She sat glowering in my courtroom during the testimony.

On smooth days, all actors in a courtroom drama seamlessly glide through their respective roles. But something was wrong, I thought, glancing from prosecutor to defense counsel to the bailiff and other court staff. Everyone had a quizzical look. Why would someone who had anything that screamed of narcotics involvement invite a police officer into her bedroom to observe the items?

After the hearing, I saw the prosecutor watching the second officer as he left the courtroom. The prosecutor announced that he would not argue that the apartment search was legal. That meant the narcotics could not be admitted into evidence, and the case fell apart. I dismissed it.

I remained on the bench, perplexed as to my next step. Court personnel agreed with me that something seemed awry in the testimony, but none could put a finger on the problem. I recalled my experience as a prosecutor in a different courthouse, where prosecutors, defense attorneys and even judges knew a particular narcotics officer as "The King of Consent." His sarcastic nickname derived from his oft-repeated testimony that suspects gave him consent to enter and search their homes. During court hearings, however, defendants often contradicted the officer, saying he had entered without permission. Over time, several judges told prosecutors that the officer would never again be allowed to testify in their courtrooms. They didn't believe him. Nonetheless, the officer continued to testify in other courtrooms.

Perhaps the judges who banned the officer were searching for a sensible solution to an ethical dilemma. After all, it's one thing to suspect that a police officer has lied, but proving it is a different matter.

In the "pizza" case, what was my next step? Reporting impressions rather than facts to a police agency could unfairly taint the careers of the officers. Yet if all of us in the courtroom had similar suspicions, should they be ignored?

I consulted my judicial ethics handbook. It spoke about my duty to report misconduct by attorneys, by other judges, even by me. It said nothing about possible misconduct by a police officer. The book did discuss my duty to report a potential crime, but the standard was vague.

A judge has a duty to promote integrity in the judicial process. Citizens will lose confidence in the legal system if they believe judges ignore crimes they observe from the bench. On the other hand, judges are required to be impartial. If a judge takes steps that could result in perjury charges against a police officer, is the judge choosing sides?

Yes, I had a strange feeling about the officers' testimony. But without further investigation, it was just a feeling, not perjury. I could understand why a judge might let the issue slide.

I asked whether prosecutors intended to talk with the officers' supervisors. "No," I was told. The misconduct was not clear. The D.A.'s office would not report the officers based on a hunch.

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