Testi-lying and the Rise of Post-Truth Politics

Lies Can Kill People and Dogs But the Real Victim is Justice

Betty White — not the TV star, but my first wife — -and I each had a quality possession that we hung on to through being impoverished students. For me, it was a Goya guitar, an instrument much finer than my playing ever deserved. For her, it was a Leica camera, with which she became a regular contributor of photos to The Rag, Austin’s contribution to the Underground Press Syndicate.

She was also a talented writer, but I only know that because I was married to her and observed it over time. Unlike me, she sometimes blocked. I watched her suffer through the block and stack up incomplete grades because of papers not turned in, but I was not equipped to help her then as I could now. I did not understand the affliction and could only sympathize.

With her blocking problem, Betty could only watch me move from a weekly to The Daily Texan. Photography remained her primary creative outlet.

She backed me up in my purposeful trips to jail, but the only one she took was not on purpose. The LBJ Presidential Library on the University of Texas campus was dedicated in May of 1971, and there was a law enforcement presence the likes of which we had never seen. Also, the University went into federal court in an untimely manner and got a judge to sign an injunction forbidding most activities by those thought to be political ringleaders. Nothing was to pull attention from the planned LBJ worshipping.

I was flattered to be considered one of the ringleaders and therefore worth suing but I did not need a lawyer to tell me the injunction was an unconstitutional piece of nonsense. I would have needed a lawyer to tell me that the University timed the application to prevent a full hearing. They scooted in for a temporary order claiming an emergency which, if it existed, was of their making. I cannot speak for others, but the impact of this charade on my conduct was zero.

It was a lively day. I gathered up what I had left of my military uniform and marched in formation with the other veterans up to the barricades around the library, where we asked to speak to the ex-president. Denied that, we chucked our military decorations over the police lines, symbolically returning them to LBJ. My dinky set of chest ribbons was not impressive, but there were some purple hearts and bronze stars, and the throwing took long enough to make great theatre.

GI to Hippie Photo by Alan Pogue Used by Permission

After that, I spent the day with everybody else, running around the police lines looking for a way in while the supervisors directed squads of officers in riot gear hither and yon to stay between us and the bigwigs.

Had we gotten in, we only planned to have a debate about the war. I was present at most of the uber-secret planning meetings and most of the discussion was about how to generate enough noise to make the attendees pucker and clutch their pearls.

The festivities had pretty well wound down when a group of us repaired to a pizza joint on the first floor of a big parking garage across the street from a dormitory that was re-purposed to house some of the lesser dignitaries. We saw a phalanx of police run by the front window and Betty took her camera and followed to see what was going on. I sat tight and waited for the pizza until somebody ran in and told me my wife had gotten arrested.

I got outside in time for her to shout me the short version, that she was being arrested for photographing police misconduct (expressed in more colorful language). As they were loading her on one of the busses on the scene for extra-large paddy wagons and she and I were shouting back and forth, a guy came up to me dressed a bit more formally than anybody else and handed me his card. He told me that he saw the whole thing and if I would notify him of her trial date, he would return to Austin at his own expense to testify.

I thanked the good Samaritan, stuffed his card in my shirt pocket, and hurried off to see about arranging bail for Betty. I don’t remember when I got around to looking at it, but Betty was glad to see she had a willing eyewitness in Bill Moyers, who was an invited guest because of his role as White House Press Secretary from 1965 to 1967.

Betty’s story was that she was photographing an officer applying his club to a boy who had either done nothing at all or, at any rate, was helpless at the time. He interrupted the beating to tell another officer to arrest her. The charge was assaulting a police officer, and the officer’s story was that she had whacked him in the chest with her camera.

Leaving aside our relationship, I knew that could not have happened because I had seen Betty get knocked to the ground at a demonstration and protect her precious Leica with her own body as she went down. There was no way she would use it to hit somebody.

She did go to trial, but we did not need our celebrity witness. A photographer came forward who had the entire incident on Super 8 film from the vantage point of the second floor of the parking garage. The officer who claimed to have been assaulted with a Leica told his lie. The arresting officer testilied (as they call it in the trade) for his fellow officer.

Then we showed the judge a movie of the entire event. The lucky photographer had the beating before Betty came into the frame and there was daylight between her and the assaulting officer when he gestured toward Betty with his club and the other officer arrested her. Years later, both of those officers appeared in my court, and I tried my best to disregard my knowledge of their perjury.

This is hard. We are reminded regularly that a criminal defendant is not on trial for being a general dirtbag, and so if evidence is admitted of some bad conduct outside of what is charged, the defendant is entitled to a “limiting instruction.” That’s when the judge tells the jury the exact purpose for which the extraneous bad conduct was admitted — -which is never directly to show guilt, although sometimes the inference can be hard to dodge.

It’s even harder when you know something about a witness outside the evidence in the case. Why not recuse myself? Sometimes that’s possible, but other times the thing you know is something everybody in the community with a pulse knows. It did not seem to me practical to recuse myself around two traffic cops when presiding in a traffic court.

There was another reason as well. When there is no accident, the typical traffic case is a “swearing match” between the officer who wrote the ticket and the driver. Unless one or the other is impeached, that is not proof beyond a reasonable doubt. That is the standard of proof because the Texas Legislature, in its wisdom, has decreed that traffic offenses are misdemeanor crimes.

When I was teaching at Indiana University, I did not bother to get admitted to the Indiana bar. I did notice, en passant, that in Indiana traffic offenses are “civil infractions.” That would make the burden of proof “preponderance of the evidence.” Put another way, is guilt more likely than not?

My next question would be why they need judges in traffic courts? It’s hard to imagine getting to “not guilty” if the officer shows up and can identify the person who was driving.

Even when the deck is stacked in favor of conviction, truth is still supposed to be a bedrock principle of trials. I’m enough of a sucker for that proposition that I was shocked that not one but two law enforcement officers were prepared to commit perjury to nail a simple assault conviction.

I was still an undergraduate student at the time, although I was beginning to focus on law. I still wanted to be Thurgood Marshall when I grew up. By the time I got to be a judge, I had a more realistic view of the lay of the land.

What we call post-truth politics first arrived in law enforcement. It’s a general rule of the policing trade that once a fellow officer has taken a position on a matter of fact, that position becomes the truth. Sometimes this rule is maintained in the face of scientific evidence. That would be why a mere DNA exoneration was insufficient to bring Donald Trump down from the death penalty for the Central Park Five.

Once an officer had sworn that my wife hit him with her camera when she never got close enough to accomplish that even if she had thrown it, the only limit to the number of corroborating witnesses was the number of officers on the police force. It’s not about law. It’s about culture. It’s about the thin blue line that stands between civilization and barbarism.

It’s a bit ironic that cracks are appearing in the police subculture just as Mr. Trump is plunging the entire nation — at least his 30–40 percent of it — -into post-truth politics. Those cracks have been opened by ubiquitous smart phones. Body cameras will play a role when and if somebody figures out how to motivate officers to turn them on when about to commit a crime.

There’s another place where I think post-truth politics could be a menace

In the five years I sat on the “police court,” I was often the closest magistrate to whom arrest and search warrants could be presented. I was also charged with setting bail and determining who was released on recognizance. It is in these functions that the police expect support from what the Supreme Court calls the “neutral, detached magistrate.”

I “testified against the police” (as they would put it) twice. In one case, I signed a search warrant based upon incorrect information given by a man I was not told was a habitual felon, in custody when he gave the statement, and who had been told that the police would drop the habitual count (25 years to life) if he met a quota of cases.

In another case, I was given a warrant to sign after a search had taken place in violation of my verbal order. In both cases, the district court suppressed the evidence because the police mislead the magistrate. Some took my testimony as a betrayal, the object of my betrayal being police culture. And, yes, I did care when I was treated as some kind of turncoat.

One of the reasons that police court judges should be picked from the ranks of criminal defense lawyers is that seeing what the police have to tolerate in their daily work would make anyone empathize with them. The more you watch the untreated sludge go by, the cases that trial judges only see months later, cleaned up and manicured, the harder it is to remain neutral and detached.

The physical danger of policing is overstated by media focus on the use of firearms, but the daily parade of drunkenness, wife beating, overdose, and suicidal behavior of every description would take its toll on a rock. Cops are just human beings. They bleed and they cry. The popular reverence for the police may be based upon the wrong reasons, but there are still reasons for it.

I think I understand why it is police culture strays over the truth line I have tried to keep sacrosanct. Balanced against the thin blue line analysis is a complex of rules that seldom lend themselves to simplicity. Always remember the name for a legal rule that leads to a result the speaker finds unwelcome:

technicality

If you take the canard of technicality to the limit, it’s possible to arrive at a place where a search warrant is a technicality. One rookie officer arrived in that very place in the late seventies in an urban county of Texas.

The federal courts had been dropping a case here and a case there incrementally expanding the very few circumstances under which a criminal defendant might be allowed to discover the identity of a confidential informant.

A justice of the peace was hearing a felony examining trial, a proceeding of limited import because — should the judge toss out the case — the prosecutor still had the authority to ask the grand jury to return an indictment. By common agreement of both sides of the criminal law bar, examining trials were used to help the district attorney screen cases. If the judge tossed out a real dog, the district attorney would consider that a final burial.

On this day, all the young hot dog prosecutors were busy trying felonies to final disposition. There was at the time an assistant DA, older than the trial lawyers, whose primary functions were drafting documents and writing some appellate briefs. He was sitting at the prosecution table as a warm body with a law license. He was not expected to try anything, but he might be asked his opinion later whether the case should go to the grand jury.

A search had turned up a felony — either because of which drugs were found or because of the amount found. The affidavit in support of the warrant was fairly ordinary:

A confidential informant who I do not wish to name because of danger to the informant told me that he was inside the residence named in this warrant application within the last 48 hours and observed John Doe in possession of a useable amount of marijuana. This informant has given information to your affiant several times in the past and each time the information proved to be correct and resulted in the seizure of controlled substances.

In any state but Florida or Oregon, there might be another paragraph about weapons being present or the resident having a violent history offered for the purpose of obtaining a “no-knock” warrant, but this was an ordinary warrant.

The defense lawyer had in mind that his case might be the next incremental expansion of when the confidential informant has to be named, so he blurted out the question:

Who was the informant?

The Assistant DA sighed and rose to object.

The judge rolled his eyes and started to make his ruling while looking daggers at the defense lawyer. Before he could sustain the objection, the young witness answered:

There was none.

The defense lawyer’s jaw dropped. The prosecutor’s jaw dropped. The judge’s jaw dropped.

Why did you swear to that affidavit?

“They taught us in the academy that was what we needed to do to get a search warrant. We have a pad of those. We tear off one and swear to it.”

That felony went away and did not return. The courthouse snack bar sounded like a beehive as the story went around.

I heard the story from many lawyers and nary a one suggested that the young officer was conscious of lying. In his mind, he was complying with a technicality.

Anybody arrested as a result of the officer’s misunderstanding might be reluctant to see a distinction between an untruth and a lie, but most fair-minded people would agree there is one. Rarely.

But there certainly is a distinction between a rookie right out of the academy and a senior officer with more than 30 years on the police force. I describe Gerald Goines, a narcotics officer for the Houston Police Department who retired this year with full retirement pay and benefits. The Harris County District Attorney announced a review of some 1,400 cases in which Goines was involved.

The precipitating incident was a narcotics raid on the home of disabled Navy veteran Dennis Tuttle and his wife Rhogena Nicholas. The raid was authorized by a no-knock search warrant in which Goines swore that one of his regular informants was sent to the Tuttle residence and came back with heroin.

The serving of the warrant resulted in the deaths of Tuttle and Nicholas and their dog and the shooting of four police officers by Tuttle or by friendly fire, since Nicholas was unarmed. Goines was one of the officers wounded.

Houston Police Officers Association President Joe Gamaldi spoke to ABC News January 28 outside of Hermann Hospital, standing up for the thin blue line:

We are sick and tired of having targets on our back. We are sick and tired of having dirtbags trying to take our lives when all we’re trying to do is protect this community and protect our families.

Enough is enough. If you’re the ones out there spreading the rhetoric that police officers are the enemy, well just know we’ve all got your number now. We’re going to be keeping track on all of y’all, and we’re going to make sure to hold you accountable every time you stir the pot on our police officers.

According to court documents made public months later, investigation showed no informant and the heroin was retrieved from Goines’ car by another just retired officer, Steven Bryant, who admitted only to a “mistake” handling the heroin.

Indictments were returned in Houston this week charging both Goines and Bryant with murder. The false affidavit sworn by Goines was a felony, as was the alteration of an official record regarding the heroin by Bryant. When a felony results in the foreseeable loss of human life, the perpetrator of the felony is guilty of murder. This is known as the felony murder rule and, honestly, I’ve never seen it applied in a felony falsification of documents.

Goines and Bryant are free on bail. The circumstances of the shootings during the serving of the warrant are hotly contested on both sides. It is no longer contested that whatever happened did not have to happen.

The families of Tuttle and Nicholas are expected to file lots of lawsuits.

Truth was lost in the confusion on the night the bogus warrant was served. All human beings involved claim to be diligently searching for the missing Truth.

I will not speculate on how much testilying took place in Houston this year, but I doubt that any of the testiliars will connect their business as usual to the deaths of two citizens, the injury of four police officers, and the damage to the credibility of the justice system. They will, perhaps, accept responsibility for the dog.

This post was previously published on Medium and is republished here with permission from the author.

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