I have contended that the greatest power a license to practice law confers is the power to compel powerful people to testify under oath. But police have developed a countermeasure. It’s called lying. It’s a powerful device because it’s institutionally protected. Few lawyers can beat them head on. They will always be “believed.” Cops sardonically call it “testilying.” However, there is a workaround. It involves maneuvering them into telling the wrong lies. To do this, you have to exploit a common character flaw - hubris. Cops who lie are generally infected with a compulsion for dominance. They need to let you know they are lying and that you can’t do anything about it. That’s why I love to tell about the missing tape recording.
It was the mid 90s. My client came to me very distraught. He had been arrested for soliciting lewd acts in a public restroom by an undercover cop. He was so humiliated and afraid for his future that he cried in my office. But he had to tell me one thing, something, he said, that might cause me to not “take his case.” You see, he had to admit that it was true . . .he was gay. I didn’t know whether to laugh at his naivety or cry for his anguish.
But he also told me that he was innocent of soliciting sex; that it was the officer who solicited him. Furthermore, the arresting officer (Cop 1) told him that the whole conversation was recorded; that he was wearing a microphone and transmitter and that Cop 2, a few yards away, had a receiver and tape recorder. So my client optimistically announced that the tape would exonerate him. I asked him if he was sure. He said he was certain. So I had to give him the bad news that no one would ever, ever, hear that recording. He didn’t believe me at first. He did later.
But getting the case dismissed because the police destroyed potentially exculpatory evidence is just as good as proving him innocent. (Well, “just as good” in lawyer-think.)
The first thing I did was to call the police department and get the lieutenant on the phone. I told him that I wanted his assurance that the tape would not be destroyed and that it would be available to me as soon as possible. He assured me that “the tape” would be preserved but that “the tape” was not available at the moment because “it’ was “being processed at CI&I.” (It’s important to note that telephone calls to the police are always recorded.) I followed up that call with a letter to the lieutenant confirming and describing our conversation. I then knew and could prove that an actual tape existed. I also knew, and the lieutenant knew I knew, that there was nothing to “process” and there is no such separate entity as “CI&I” in our little county. He was totally bullshitting me and proud of it.
At the first pretrial conference a month or so later, I tried to reason with the DA about why he was prosecuting this sort of “crime” in the first place. I had to listen to him go on about “these people” and oh the children blah blah blah. In chambers I told the judge that I hadn’t yet received the police report or the recording. The DA said he didn’t know anything about any recording. I told him what I knew for sure that there was a tape and he said he would check it out. The judge then continued the conference for a month with a tepid order for the DA to turn over any and all recordings blah blah blah.
At the second conference I still hadn’t received the police report or any recording. The DA announced that he had talked to the officers and was assured that “there is no recording.” (The Clintonian “is.”) I told him “Sorry, wrong lie.” I told him the police already admitted there was a recording. The DA said he didn’t know and the judge reminded me that they couldn’t turn something over to me that didn’t exist. I told the judge that I was going to file a motion to dismiss if the tape no longer existed. The judge continued the case for another month.
At the next conference, the DA announced that he had finally “gotten to the bottom of it all”: There was never any tape; there was a transmitter and receiver but no signal was ever received, so nothing was ever recorded on any tape. (At last, the right lie, but too late!) I told him he was wrong. There was a tape. He got a little testy. “Are you calling my officer a liar?” This is the only time I ever lost my temper in front of a judge. I said “No, I’m going to wait until he takes the stand, swears to God to tell the truth, says there was never any tape, and then I’m going to call him a god damn perjurer!” The judge told me to calm down but didn’t clap me in irons. Close call, though.
Here’s the irony. The cops were saying there was no tape because they thought I wanted the tape. But I didn’t want the tape. I wanted the case dismissed because there was no tape.
I filed my motion to dismiss and set about subpoenaing the officers for the hearing. Unfortunately, Cop 2 was no longer with the police department. Fortunately, I found him on a small force about 200 miles away, and managed to get him served. He showed up for the hearing late and I never got a chance to talk to him in advance. No one else knew he was there.
Cop 1 took the stand and said there was never a recordable signal so nothing was recorded and that there was no tape. Then I called Cop 2 (clueless because he wasn’t in on the con). After refreshing his memory about the case, I asked him if the transmitter and receiver had been working. He said yes, and that they had tested it just before the encounter. Then I asked him if he had listened to the tape. He said, “Yes.” I could see the wheels turning in his head, trying to figure out what he was supposed to say. Suddenly the light went on, “But it was a terrible recording. Most of the time you couldn’t even tell who was talking.” Bingo! Wrong lie! The judge interrupted. He looked straight at the DA and said one word: “Dismissed” and left the bench.
Postscript: I finally got the police report. I swear to God you wouldn’t believe it. You’d think being gay was an actual crime. Cop 1 described the final conversation like this:
Suspect: Well, I have to go now. I’m late for work.
Cop: Wait a minute. Don’t you want to do something?
Suspect: Well, yeah, but . . .
Cop: What do you want to do?
Suspect: I don’t know.
Cop: Do you want a blow job?
Suspect: Well, yeah.
Cop: YOU’RE UNDER ARREST!
Someday I’ll tell the story about the time the Lieutenant shredded my subpoena. But maybe first I should tell the one about a very heroic cop who did the right thing and saved my client's life.