June 15, 2014

Bench Trials, Police Defendants, and Judicial Bias

NYPD Detective Abel Joseph
NYPD Det. Abel Joseph
That police officers who are indicted for felonious acts committed while on duty elect to have bench trials should surprise nobody. On May 23, 2014, NYPD Det. Abel Joseph was cleared of perjury by State Supreme Court Justice Thomas Farber. It is further evidence of the difficult task prosecutors have when the defendant is a police officer, and highlights the problems we civil rights lawyers face in cases based on police misconduct.

As previously reported, the case was quite simple: In August 2010, Joseph swore before the grand jury that he never took his eyes off a particular suspect whom he swore he had seen selling drugs. Joseph also swore under oath that he and his unit were unable to apprehend the people he had seen buying drugs (which would explain why there was no corroborating arrests).  But he later testified, also under oath, that he had indeed lost sight of the suspect. Moreover, he acknowledged that his unit did seize several people who he said had just bought drugs from the suspect, but none of them had any drugs in their possession. 

This means that either one or both versions of Jospeh's sworn testimony was false. This is something we lawyers call "lying," also known as "testilying" when done by police officers, and it is the sort of thing one is not supposed to do. Remarkably, the Manhattan District Attorney chose to prosecute, a rarity in this situation. But Judge Farber found that the giving of false testimony was not "willful." In other words, it was a mistake, an accident. Yes, Detective Abel directly contradicted himself on material facts, but the Court chose to believe that Joseph's memory failed him, nothing more.
Maybe this is true. Or, quite possibly Judge Farber believed because he wanted to believe. U.S. District Judge Richard Kopf, who writes a wonderfully blunt and honest blog, Hercules and the Umpire (of which I am big fan, even though I often disagree with Judge Kopf), recently asked  the rhetorical question, "Why does Kopf believe cops most of the time?" His answer boiled down to his assumption that officers are more likely to tell the truth than criminal defendants. Flipped around, what Kopf was really saying is that he tended to weigh the officers' testimony differently than other witnesses, that they started from a position of credibility.

This is not to suggest that judges like Farber or Kopf would knowingly turn justice upside down to benefit a member of law enforcement. These are dedicated jurists who want to get things right. But there is no getting around the tendency of many judges to simply assume that the officers are telling the truth unless it can be conclusively proven that they are not. I find reflexive disbelief by judges in many of my police misconduct cases, in which for my client to win, the jury will have to believe the officers lied about what they saw and did, as though the notion that the officers could be lying any client telling the truth is facially absurd. 

Indeed, ask any criminal defense attorney in New York about criminal bench trials (where your client is not a cop), and they will likely tell you that unless you have really good facts or independent evidence that exculpates your client, you are losing. In New York, defendants facing B misdemeanor charges are not entitled to a jury trial. In those cases, where the cases come down to a swearing contest between the officer and the defendant as to what did or did not happen, the defendant almost always loses. Put differently, as long as you cannot fundamentally disprove the officer's testimony, the bench will accept it as true and conclude your client is lying.

Time and again in New York, as defendants, police officers have benefitted from bench trials. Whether it was the four officers who fired 41 shots at Amadou Diallo, or the three men who shot Sean Bell, just to name two. I am not trying to reargue either case. My point is simply that Joseph's acquittal reflects, at least in part, the difficulty in persuading judges to convict. This is not really debatable; there is a reason police officers often choose judges over juries as their preferred fact finders.

In the interest of full disclosure, I am in the midst of a civil case against Joseph's unit in which several officers participated in the arrest of my client for a hand to hand sale that had not happened. They already knew my client because they had arrested him some 9 months earlier in case that was slated to go to trial. As a result of the second arrest, severe bail was imposed and he was jailed three months until his first arrest went to trial. Jospeh's colleagues testified under oath about the first drug sale. The jury did not believe them and acquitted my client. The prosecutors made a quick assessment and then dismissed all charges from the second arrest, telling the judge that they could not prove the charges beyond a reasonable doubt (even though the evidence would have been the sworn testimony of a undercover NYPD officer, which is precisely the sort of evidence prosecutors utilize in drug caes). So I have my own sense about this unit and was not surprised to read about the apparent perjury. 

To be fair, I didn't watch Joseph's trial, and it may well be true that the acquittal was warranted by the (lack of) evidence presented, and its certainly possible that the prosecutors did not put on a convincing case. Joseph's lawyer, James Moschella, is a good attorney who surely put on a strong defense. But there's no getting around the fact that Joseph gave starkly different sworn testimony and that he fibbed to the Grand Jury.

The takeaway is that it remains difficult to persuade the bench that officers are lying, and even when you can, there is a reflexive tendency to find an excuse or a way out. I get it; we don't want to believe that our officers sometimes lie. But the reality is that they do, annd how can we expect jurors to treat each witness as an equal individual for the purposes of assessing credibility when judges cannot?


  1. Thank you for sharing the information.

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  2. Robert, I have no idea what you are saying, other than lawyers ought to hire these trial consultants, who you just happened to come across. Thanks for the ad.