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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.

I ordered a transcript of the hearing. It sat on the corner of my desk for months, beseeching me silently to either do something or put it away. Then five months after the "pizza" hearing, while reviewing motions scheduled for my court the following day, I saw a case questioning the legality of a drug search conducted by the same two officers. The details were similar.

I knew that I could not remain neutral. This decision was clear. I excused myself from the case, announcing that I might be biased against the officers, and I offered both sides an opportunity to review the "pizza" hearing transcript. Each side made a copy. The new case went to a different judge.

How did it turn out? I don't know. Once a case is moved from my courtroom, ethically it was no longer my business. Were I to have followed the case, or talked to the new judge, I might later have been accused of "embroilment" -- a fancy word for a judge becoming too interested in the outcome of a case. Judges are often cautioned to maintain professional distance and not become embroiled.

I do wonder how that case ended, but I didn't write down the defendant's name and I don't know where it was transferred. But at least both sides were now aware of doubts about the credibility of the two officers. Once a prosecutor's office becomes aware of negative information about the credibility of a witness, it is legally required to communicate it to defense attorneys in future cases. So now there is an institutional memory about these two officers, one I hope does not unreasonably jeopardize their careers.

In balance, this may be a conundrum with no right answer. But perhaps raising this issue is a small first step that will stimulate discussion. And that, I have learned, is how a system might best be transformed: cautiously and incrementally.

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