Just Say No to Searches - California's Big Secret

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California's Big Secret

vanliewal writes "Matt Lait and Scott Glover follow up in today's LA TIMES ("Privacy risk to police unclear") on the
failure of a bill (SB 1019) in the California state legislature which would have reopened to public
view administrative hearings on officer misconduct. The hearings have been closed since a
recent California Supreme Court decision.

Lait and Glover tracked down legislators who justified their votes on the grounds that making the
hearings public -- as they had been for decades -- would put officers' lives at risk. The TIMES
asked for examples of officers who had ever been harmed, or even threatened with harm, as a
result of the public hearings in the past. Answer: none.

This is because whatever the problem is, it's a new one, which wouldn't be reflected in the prior
history of these hearings.

That new problem is the internet. The police union's general counsel provided this questionable,
but helpful statement: "Once you have that name, it's easy to locate residences and addresses. ...
The example I use is any jerk sitting in a cave in Afghanistan with access to the Internet can
download it."

The statement is questionable because finding residential addresses on the internet can't be the
problem. If it were, officers wouldn't continue to give out their business cards, identify themselves
in court when they testify, wear nameplates on their uniforms, etc. Nor would judges give their
names in open court. Or prosecutors. These are ways that a criminal can easily obtain names of
people he or she doesn't like in his or her case, without any disciplinary hearing taking place. So
the concern is not the officers' home addresses. Those are strictly hidden from the internet.

Yes, the internet is the problem. But not due to an officer safety issue. Here's the problem: "Police
union leaders said that trial lawyers and reporters would mine the records to try to undercut the
credibility of officers."

That's the problem. Not officer safety. Officer credibility.

Over the last decades, California has gotten into the business of constantly moving a large
segment of its population in and out of jails and prisons, over and over. The policy, which the
public approves, is to deal with all sorts of societal problems -- poverty, mental disability,
substance abuse -- by throwing them into cages. Still homeless? Back to jail. Still addicted? Back
to jail. Still bothering the neighbors with your paranoia and delusions? Back to jail.

One defect of this policy is that it creates an ocean of criminal law enforcement litigation for the
courts to resolve. The due process protections of the U.S. Bill of Rights create a bottleneck for that
ocean to pass through. It's not feasible to respect the rights of the criminally accused to things like
probable cause before arrest; or to evidence collected without unlawful searches; or to uncoerced
confessions; when you've got such an ocean to take care of. The release valve for that ocean of
cases is law enforcement officers' false statements, in police reports and on the witness stand,
sometimes referred to as "testilying" (http://en.wikipedia.org/wiki/Testilying). False statements
about why someone was pulled over in the first place; about alleged self-incrimination; about
whether someone consented to a search; statements like that. Without those false statements --
which admittedly include false statements against defendants who really are guilty, but also
convict the innocent -- the system would break down. The alternative would be to move from a
policy of cages, to a policy of treatment, education, counseling. And California isn't ready for that.
So its system routinely depends upon the false statements of police.

That system can't work without concealing the records of officers who have been caught lying in
the past. As police union officials fear, defense attorneys would be duty-bound to show those
records to the jury, and a lot of defendants, defendants who committed the charged conduct, as
well as innocent defendants, would escape the cage. Over time, the number of jurors would
increase who simply refuse to accept the word of a cop without some independent supporting
evidence. And court dockets would become totally unmanageable as more defendants opted for
jury trials, because those trials became more winnable.

So California has developed an "honor" system for controlling records of police dishonesty. In
order for a criminal defense attorney to see any iota of information from the personnel records of a
testifying officer who has been caught lying in the past, the attorney has to make one or more
"Pitchess" motions, at the end of which they may obtain incomplete skeletal traces from those
personnel records. This procedure typically takes months to complete. And this procedure
depends on the police independently deciding, on their "honor," what is, and what is not,
appropriate for the judge or the defense attorney to see. Those records are kept by the police, and
they only bring into court what they choose to bring, on their "honor."

There's plenty of room for error in this "honor" system. But if the LA TIMES wants to talk to criminal
defense attorneys about examples of such errors, it's unlikely any names will be mentioned. It's all
a big secret in California, by law.

If the disciplinary proceedings were again made public, then by conducting an internet search, a
criminal defense attorney could swiftly check to see whether the police in a particular case had
failed to disclose all incidents of an officer's prior dishonesty. Those incidents, given the amount
of false statements police are called upon to make, pile up. After five or ten years, too many
officers would be of no use to the system, because the jury could be shown that their statements
were not reliable. It's impossible to recruit enough new, "clean" officers to make up the difference.

So in California, by defeating this legislation, the system is keeping its officers "clean" by hiding
the dirt. That's how it works.

http://www.occopwatch.org/californiasecret.html"