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LAW ENFORCEMENT MISCONDUCT RECORDS ARE SHIELDED FROM THE PUBLIC

 

Recently New York Public Radio station WNYC profiled an in-depth investigation on police misconduct in the New York Police Department. The investigation revealed hundreds of incidents of misconduct by NYPD officers, including stealing and assaulting New York City residents. The investigation revealed that some of the officers were found to use excessive force by internal affairs, others of firing their gun unnecessarily, and that is just a sampling of the offenses the internal affairs department of the NYPD found officers committed. Most of these officers did not lose their job and many are still on the beat.

Sometimes officer misconduct can ruin an innocent person’s life. For example, recently a New York Police Department officer was convicted of fabricating drug evidence. His false evidence sent an innocent man to prison. Another NYPD homicide detective, once renowned for his investigation skills, is accused of tampering with evidence, prompting the district attorney to review over 40 cases the detective was involved in, which has already resulted in the court overturning 7 of the cases. This is similar to the Baltimore scandal where numerous cops were found to be planting evidence. The worst part is: innocent people end up losing their freedom because of bad cop behavior and often the public is completely oblivious.

In New York, as well as in California (and the only other state being Delaware), law enforcement misconduct records are shielded by law from disclosure to the public. May we reasonably infer that California law enforcement records contain similar incidents of misconduct?

Say you are in Los Angeles and an officer detains you on the street. Maybe he thinks you are a criminal suspect he is looking for but he holds you longer than necessary to determine that you are not that suspect. Because the officer is having a bad day, he gets a bit rough with you. You, in turn, get a little mouthy with the officer and before you know it, he tasers you. Next thing you know, you are arrested for resisting arrest (Penal Code §148(a)) and for obstructing an officer from doing his duty (Penal Code §69.)

Maybe this officer has a history of misconduct, but you don’t know that. Your criminal defense attorney’s first step might be to file what is called a Pitchess motion; a motion that asks the court to disclose an officer’s record of misconduct. But the burden is on the defendant to show good cause why an officer’s personnel record should be disclosed. That can be a difficult hurdle to clear when the conduct files have been kept secret and maybe the only “evidence” the defendant has is the that the officer’s conduct surrounding the defendant’s arrest was excessive.

We want to believe most officers are honest and fair-minded and in my experience, that is mostly true. But as we have seen in Baltimore and other cities, some law enforcement officers are dishonest and worse and some even join in a conspiracy of corruption. This leaves an innocent person who is arrested and charged by a crooked cop very vulnerable. While the district attorney is required to produce any exonerating evidence, if the police planted evidence or otherwise lied, that requirement is of little use.

It takes a very skilled and experienced criminal defense attorney to pull out all the stops when a defendant has been framed or when law enforcement lies about the circumstances surrounding the arrest. It is rare in my practice to have a client who is a victim of blatant law enforcement corruption, but slight shades of gray are not uncommon. For example, I have seen police officers outright lie during testimony or the district attorney withhold favorable evidence. Even more insidious are the occasions when police detectives use devious tactics to get a “confession” or when the cops make up part of the evidence so that the story will fit together. There are tools in the criminal defense attorney’s tool box to get to the bottom of it, but like any other tool, you must know how to use them.

Orange County criminal defense attorney William Weinberg is very good at using defense tools; he’s been honing those skills for 25 years. He is available for a free consultation about your criminal matter. You may reach him by calling 949-474-8008 or by emailing him at bill@williamweinberg.com.