Let’s Advocate Against Wrongful Convictions!

The US Justice Department knows that potentially innocent people can be victims of wrongful convictions based on flawed forensic work. But what happens to the prosecutors who allow this horrible practice to continue? Nothing.

A few years ago, we learned through some investigative reporting that federal prosecutors they failed to notify defendants, or their attorneys, about cases they knew were faulty or weak. This is horrible!

While these defendants were not all convicted of the death penalty, and were not put to death based on a flawed case, this conduct is inexcusable. Why is it that no one is held accountable?

A Flawed Criminal Justice System

The system is flawed and shameful. We need to become better advocates, pay close attention to every case at risk of wrongful convictions at both the federal and state level (where they are rampant!), and then share the information with the public. Knowledge is power.

Timing is everything. We should bring the issue to the forefront during this current presidential race, and keep it on center stage until it gets the attention it deserves. Let’s look closely at the death penalty, too, and ask if we should really consider the death penalty in a climate with so many risks of false conviction. Is this a punishment we should even impose on a convicted felon?

Beyond being cruel and unusual punishment, there is always a chance that an innocent defendant could be executed. That cannot be reversed, and it should never happen. And yet it does.

Too Little, Too Late

Two years ago, the FBI released a scathing report, one that shed new light on one of the FBI lab’ worst scandals: The inspector general said the Justice Department did not properly review all of the cases by FBI examiners whose work was known to be flawed. Even when the FBI knew their work had been shoddy and the wrong person convicted – in death penalty cases as well – they didn’t bother sending timely notifications to the prosecutors in those cases, and never notified defendants’ attorneys at all.

And, sometimes when the FBI did notify the prosecutors, they never told the defendants’ lawyers. As a result, innocent people were put to death because of wrongful convictions.

It took five years to identify 60 death-row defendants whose cases had been criticized. Because of this, state authorities failed to stay sentences, and three men were put to death.

This is horrible. As the most civilized nation in the world, we should not put to death men and women who might not have committed a crime, or who might have been convicted based on questionable evidence.

The Media Is Our Advocate

We need to stay on top of the shoddy practices and let the public know when we discover it.

Thank you to the Washington Post for reporting in 2012 that Justice officials had knowledge of flawed evidence and testimony that might have contributed convictions of innocent people. The Post focused on one Texas case, and three men in Washington, D.C., who were represented by the Public Defender Service and have been exonerated. Problems at the FBI lab first surfaced in the early 1990s, when a scientist-turned-whistleblower named Fred Whitehurst reported that sloppy work by examiners was producing unreliable forensic testimony. Justice officials then launched a task force (that was active from 1996 to 2004) to ensure that potentially exculpatory evidence involving criticized agents was turned over to defendants. That did not happen.

The Post found that such notification rarely happened and that not all flawed cases were properly reviewed. Justice Department officials responded to the report, saying they had been diligent in trying to protect defendants’ rights in undertaking a review of unprecedented size and complexity. In one case mentioned, police investigated a death near Howard University, but no crime was suspected. However, the Department agreed that certain aspects of the Task Force review could have been more efficient or effective. The 26 surviving death-row inmates whose cases were included in the review were later notified that their convictions had been re-examined.

After the Post report, the inspector general recommended the notifications and retesting of evidence in 24 death-row cases in which the defendant was deceased. What’s more, the inspector general’s office said the department should notify all 2,900 defendants whose cases were reviewed by the task force, starting with 402 defendants whose cases were so problematic that the task force obtained a fresh scientific review. Their names were made public.

We need to stay on top of these matters. We need to make sure they are brought to the public. Meanwhile, I wonder why the prosecutors responsible for shoddy practices that could have resulted in the death of innocent people are not held responsible. They are they not charged with causing the deaths, and long incarcerations, of innocent men and women. So who is responsible when innocent men and women die because of shoddy work by federal prosecutors?

It is unlikely any of those involved with this vile and unforgivable conduct will ever be prosecuted because they are part of a system that is flawed. But we need to keep fighting for justice. The best way is to beware of the practice, and the possibility of false convictions. Do your research. Report them. They are still rampant in state prosecutions.

Burdick Law has a history of fair representation for those charged with some of the most heinous crimes. If you are in need of a criminal defense attorney who knows the law inside and out, and will give you your best representation, contact Burdick Law today for your consultation at 248-325-5000.

More on Robbie Tolan – Details of What Happened the Night the Police Shot Yet Another Unarmed Black Man

Turns out that, when a second cop on the scene “instructed” Tolan’s Mom, who was on her own porch, to stop yelling, “Why are you doing that to my son,” the police decided that was refusal to accept police instruction.  Laying aside the question of who made the police the arbiter of who could say what, the second officer on the scene, a sergeant, while Robbie was face down on his own front law, grabbed Mom and slammed her face first into the front door.

That’s when Robbie got to his knees and had the temerity to plead “Why you doing that to my Mom,” and so the sergeant, a command officer remember, shot him three times in the chest.  That is the WHOLE story.  Not good enough for an all-white Texas jury to convict the white cop, of course, but then to add insult to injury, the federal judge where Robbie’s civil suit was filed dismissed it without allowing a trial.

The United States Supreme Count unanimously (when was the last time you heard of them all voting unanimously?) reversed and sent the case back to give the Tolans their rightful day in court.

Read More Here

United States Fifth Circuit – Mostly Texas Judges, of Course – Take the Word of Police Automatically, According to the United States Supreme Court

It’s rare for the United States Supreme Court, with 5 ultra conservative justices, to ever side against police or prosecutors.  But some right-wing judges take that history as a license to go even further out from reality to help police to the detriment of regular citizens.

Finally, even our conservative Supreme Court had to say, “Stop!  You’ve gone too far.”  This Bellaire, Texas cop shoots an unarmed pro B-Ball player Robert Tolan three times in the chest for “moving” after he stops him in his own driveway.  (The cop saw the car speeding, typed in the incorrect license plate number and got a “stolen car” response — never double-checked, of course.)

Then this very dangerous cop gets acquitted of assault by a Texas jury, since jurors pretty much alwaysbelieve police only, and the Fifth Circuit Court of Appeals dismissed the civil suit Mr. Tolan later brought against his assailant.  The dismissal embraced only what the cop had claimed what happened, not what Plaintiff Tolan asserted.

Too far, Boys and Girls, for even the US Supreme Court.

Read More Here

Real Life Crime Labs Not At All Like TV

The crime lab procedural has been among the most popular genres at least since “CSI” debuted in 2000, and devotees of blood-spatter patterns and advanced DNA analysis have no shortage of programming to choose from. There’s “Person of Interest,” “The Good Wife,” “Blacklist,” “Castle,” and “The Mentalist.” All are in the top 20 best-rated shows on television. And let’s not forget “Bones,” “Dexter,” “CSI: Las Vegas,” “Cold Case Files,” “The Real NCIS,” and “Forensic Files.”  But you ought not believe any of the fancy (not to mention instantaneous) forensic “results” shown on these TV dramas.  Television writers give the public a perception of forensic science that is anything but accurate.  Sadly, the public believes it – and that includes jurors.  (Fairness Admission: I have used that very misperception to the great advantage of several clients at trial by pressing police witnesses to explain why they “didn’t bother” trying to get fingerprints from this or that piece of evidence, why they didn’t conduct various tests as seen on TV everyday — and the jurors frankly were very impressed each time.)

If only the country’s real-life crime labs were half as effective as those portrayed on TV, and if only there weren’t so many lying, cheating and corrupted lab “specialists” around the country being caught regularly for out-and-out falsification of lab “results” to shore up an otherwise weak prosecution case – whether the defendant is guilty or not.

Read more:  http://www.businessinsider.com/forensic-csi-crime-labs-disaster-2014-4#ixzz30U5qYEm6

Even a Misdemeanor Can Cause Real Problems

Many people think that a misdemeanor conviction is “no big thing.”  In truth, in the federal system, there are very few misdemeanor convictions, usually exclusively obtained through very diligent plea bargaining.  When facing serious felonies with all the potential collateral consequences (beyond prison even), getting a misdemeanor plea bargain is often the very best way out.  We’ve been able on occasion to negotiate misdemeanor pleas for our clients at Burdick Law, P.C. in federal criminal cases, but it is very rare.

One of the biggest problems is that some lawyers (mostly in state prosecutions) are willing – or even anxious – to press innocent clients to plead to “just a misdemeanor.”  The reasons vary from lazy lawyer; to inexperienced or frightened lawyer; to court-appointed lawyer with a zillion cases trying to curry favor with the local prosecutor’s office for the next five cases he or she has to negotiate.

But what a lot of lawyers either don’t know, or don’t bother telling their clients if they do know, is that there are serious consequences even to misdemeanor convictions. 

For example, Christian Watts made a bad decision in 2002, and he has been paying for it ever since. As a 31-year-old, Watts was working for a Las Vegas limousine service when he connected a friend with someone who had a supply of the illegal party drug MDMA, or ecstasy. Federal investigators who were tracking another drug dealer got wind of the deal, and charged him with felony possession. At the advice of his lawyers, he pleaded the conviction down to a misdemeanor, and served no jail time. But he says he still feels imprisoned by his conviction.

New Mexico PD Still Shooting Innocent People

Another Albuquerque police office fatally shot a man suspected of stealing a car — not murder, not sex assault, just car theft. It’s become a regular thing for those guys.

Read the New York Times article in full here.

NACDL in the Forefront of Clemency Action

I’ve always been very proud to be a member of the National Association of Criminal Defense Lawyers (“NACDL”) and never more so than these days when the organization is poised to help process huge numbers of clemency applications for non-violent offenders serving Draconian prison sentences.  As the NACDL press release explained:

“On January 30, 2014, the United  States Department of Justice announced an ambitious program to provide clemency  for certain federal inmates serving long sentences for certain non-violent  crimes. In a speech delivered on that day, Deputy Attorney General James Cole  called upon the nation’s bar to assist potential candidates in assembling  effective, appropriate and focused commutation petitions for consideration by  the Department of Justice and President Obama. And yesterday, Attorney General  Holder announced:

“Later this week, the deputy attorney  general will announce new criteria that the department will consider when  recommending applications for the President’s review. This new and  improved approach will make the criteria for clemency recommendation more  expansive. This will allow the Department of Justice and the president to  consider requests from a larger field of eligible individuals. Once these  reforms go into effect, we expect to receive thousands of additional  applications for clemency. And we at the Department of Justice will meet  this need by assigning potentially dozens of lawyers – with backgrounds in both  prosecution and defense – to review applications and provide the rigorous  scrutiny that all clemency applications require.”

“In essence, the program is expected to focus on those people whose  sentences would likely be lower if they were sentenced under current sentencing  laws or policies. Since the first announcement of this initiative in early  2014, the National Association of Criminal Defense Lawyers (NACDL) has  participated with a number of groups who have long sought sentencing reform to  implement Clemency Project 2014, a joint project under which a number of groups  will independently participate in recruiting volunteer lawyers to assist  inmates seeking clemency and to provide training and logistical support for  those lawyers. The goal of the project is to ensure that every inmate who may  qualify for relief has access to counsel who can provide high quality  representation in preparing the most effective petition possible in the light  of the criteria to be articulated by the Justice Department.”

America has more citizens in prison, per capita and in actual numbers, than any other country in the world.  Hard to believe, isn’t it?  The Obama James Burdickistration’s goal is laudable, but would not be possible without the concurrence of even the most conservative on Congress; not surprisingly, they concur only because the result will be a cost savings to the US Treasury.  But, whatever their motivations, hundreds of non-violent offenders will finally see their sentences reduced to what they should have been in the first place.

So, kudos to President Obama, Attorney General Holder, and particularly the NACDL, which has always been in the forefront of protecting the rights and liberty of citizens accused of crimes.

“Why do you need a lawyer if you haven’t done anything wrong?”

This is what suspect after suspect is told by most investigators – including federal agents – when they say they want to talk with an attorney before being interviewed.  To make matters worse, federal agents have been employing a long-standing “tradition” of tricking interrogation subjects into making a false statement — which, though not a single person outside the criminal justice system knows is a five-year felony.  It’s under Title 18 United States Code, Section 1001 — false statements to a federal agent.

(There is no comparable statute in Michigan.)

So, they ask the subject questions that they already know the answers to, in the hope the person will lie because of fear, guilt, protecting a relative or friend or a host of other reasons.  Now they have him where they want him – you’re facing five years in prison because you just lied to us, and you have no alternative but to cooperate.

Finally the Justice Department has relented and told the Courts that it will no longer prosecute someone for these 1001 violations unless they actually knew that lying was a federal crime.

Read More Here

Burdick Law Works to Protect Clients – While Police Lies Put Innocent People in Prison

Here’s what happens when police believe closing cases, and getting promotions, raises and kudos, are more important than actually getting the real bad guys.  The fact that this guy is not in prison for what he did to so many innocent people is appalling.

At Burdick Law, we have worked vigorously to expose lies and have succeeded repeatedly in demonstrating to juries when agents have lied.  In one case, a man was charged with 9 separate charges of extortionate credit transactions – loansharking – under this statute:

He had been loaning money at 4% interest per week to honest hard-working people who had been unable to get bank loans for emergencies – replacement of front windows broken by rock-throwers – because of where they lived, or their credit history.  The government had this defendant dead to rights, with a dozen or more recorded phone conversations between the defendant and his main coconspirator — who was cooperating with the government by then – during which he discussed tactics to collect the “interest.”  Like: “Do whatever you have to but get that vig (interest),” including breaking arms and legs.

The government’s key witness, however, decided to puff himself up on the stand, exaggerate his importance to the conspiracy, and made numerous ridiculous claims that were easily disproven.  Instead of letting that go, the government put an agent back on the stand to try to “rehabilitate” their witness — but through vigorous cross-examination of the agent, the jury came to believe he was not being honest with them.  And that was that — not guilty on all nine charges.

This New York Times article lays out just how bad some police are.  It’s a terrifying example – one of too many, unfortunately – of police gone wild:

December 27, 2013

Louis Scarcella’s Ex-Partner Is Coming Under Scrutiny in Brooklyn Cases


Behind his back, Stephen W. Chmil was called Robin — the quiet sidekick to his more handsome, daring and celebrated partner.

Batman was Louis Scarcella, a star detective known for making arrests and getting convictions in the crime-plagued Brooklyn of the 1980s and ’90s. He and Detective Chmil spent a dozen years together as part of a roving homicide unit in Brooklyn North that investigated more than 500 murders a year.

“I don’t know who loved being a detective more — him or me,” Mr. Chmil recalled.

Their legacy was deeply tarnished in March when they were accused of lying and cheating to make a high-profile case stick. At the Brooklyn district attorney’s request, a judge ruled that the man convicted in that case, who spent 23 years in prison, should go free.

That, and misconduct allegations found in other cases, prompted District Attorney Charles J. Hynes to reopen the cases of 56 people arrested by Detective Scarcella who were convicted at trial.

Even in scandal, Mr. Scarcella stole the spotlight. Despite at least a half-dozen claims of innocence from men Detective Chmil (pronounced Ch-MILL) investigated, his cases were not included in the highly unusual review by the district attorney’s office.

But court records and interviews show the same pattern of cajoled and inconsistent witnesses appeared in Detective Chmil’s work as in Detective Scarcella’s. The Exoneration Initiative, a nonprofit group in Manhattan, has documented at least five cases of Detective Chmil’s that raise significant questions; no other New York City detective’s name appears more frequently than Mr. Chmil’s in the Initiative’s caseload of 300 convictions that are deemed probably wrongful. Witnesses and convicts have said they believe Detective Chmil invented confessions, coached witnesses and persuaded others to change their descriptions of perpetrators to match the suspect in custody — even in cases he worked without Detective Scarcella.

Mr. Chmil, who is 64 and retired, forcefully defended his work and his partner’s. At the same time, he was more apt to concede mistakes than Mr. Scarcella has been in interviews, saying the crush of murders made it nearly impossible to avoid occasional sloppiness.

“They can look at all my cases,” Mr. Chmil said in one of a series of interviews this year.

“I don’t see them finding anything that was done wrong. I sleep at night. I’m a Christian. I never intentionally locked up the wrong person.”

He said he and Detective Scarcella were busy enough with the guilty people that they had no cause to lock up the innocent. If they were lax with cases, it was the ones that received scant attention and went unsolved, because the death rate kept rising, he said.

A native of Staten Island, Mr. Chmil joined the Police Department in 1968. He was assigned to the Brooklyn North homicide squad in the late 1980s. He was paired with Detective Scarcella, and the two became fast friends. Detective Scarcella, a runner, encouraged the plumper Detective Chmil to take up marathons. They ran, solved cases and took vacations together.

“He was the best partner I ever had,” Mr. Chmil said. “One thing was, Louis is a good-looking guy. Louis got more confessions and statements out of women. Me, I’m frumpy and balding. People trusted Louis.”

In their 12 years together they gained reputations as detectives who worked hard and brought in suspects, but were willing to bend the rules. If they did not want prosecutors or defense lawyers to know about a particular suspect, for example, they would not turn in any reports for weeks, an investigation by the district attorney’s office showed.

In 1992, they were caught on video letting a jailhouse informant out of custody to meet his girlfriend, go shopping and dine in restaurants.

“We shouldn’t have done it. It was improper,” Mr. Chmil said. “We were reprimanded.”

The defendant in that murder case was David Ranta, a drug addict who was accused of killing a rabbi for his car. Mr. Ranta’s lawyer, Michael F. Baum, remembers running into Detectives Scarcella and Chmil at a bar shortly after the 1992 conviction and accusing them of knowingly jailing an innocent man.

“Chmil said to me, ‘If he didn’t do this, he did something else.’ ” Mr. Baum recalled.

Mr. Ranta was released in March after 23 years in prison after it was revealed that one of the two detectives — it was unclear who — told a witness whom to pick in the lineup.

“These two guys were out of control,” Mr. Baum said. “They were slapping around witnesses, bringing in junkies, paying for testimony with crack. This reminds me of cases from ‘Prince of the City,’ ” he said, referring to the 1981 film about corrupt New York City police officers.

The detectives investigated four of Mr. Baum’s clients, who all were subsequently cleared after trial.

Given a Script

Mr. Baum also represented a crack-cocaine addict named Jeffrey Campbell, who was arrested in late 1985 for robbing a shoe store on Fulton Street.

Mr. Campbell told Mr. Baum that earlier that summer, when he had been caught running from a murder scene, detectives had pressured him to testify against their suspect. “They told him that unless he testified, they were going to set him up on a phony charge,” Mr. Baum said.

Mr. Baum thought Mr. Campbell was paranoid. But then he interviewed the shoe salesman who was robbed. He heard a different version of the same story: the salesman said the police had coerced him into implicating Mr. Campbell, who had not committed the crime.

The salesman refused to testify, and the charge against Mr. Campbell was dropped.

But he was arrested again two months later in a different case. That time, records show, Mr. Campbell got out of jail by helping the police solve the drug-related homicide of a man named Michael Jennings in August 1985. The suspect in that case was Valance Cole, a Guyanese social club owner. Mr. Cole was convicted, but not before encountering Detective Chmil.

“I remember riding in the police car with Chmil and another guy and them talking about how they were closing all these cases so fast and other officers were not closing cases,” Mr. Cole, 67, said in a telephone interview from Buffalo, where he was being held in immigration custody.

In 1994, Mr. Campbell, dying of AIDS, suddenly recanted. He said prosecutors had promised to drop charges if he falsely blamed Mr. Cole for the murder. Detective Chmil, he said in a sworn statement, gave him a script.

“They gave me a piece of paper with what to say,” he wrote in large, childlike cursive. “The name of the detective who gave me the piece of paper I mentioned in my statement was pronounced as Camill.”

Detective Scarcella played no role in this investigation.

Mr. Campbell’s bid for freedom failed. A judge did not find the recantation credible and rejected Mr. Cole’s request for a new trial. Years later, another judge acknowledged that Mr. Cole was “probably innocent” but refused to overturn his conviction.

Mr. Chmil declined to discuss the case with The New York Times, but in a recent article in New York magazine, he denied wrongdoing in it. He compared Mr. Campbell to another witness used by Detective Scarcella in several other cases, Teresa Gomez. Ms. Gomez, a crack-cocaine addict who has since died, claimed to have seen several unrelated murders.

“Campbell was a lot like her,” Mr. Chmil told the magazine. “He was a street guy. I know I dealt with him a few times. Sometimes he’d tell you the truth, sometimes he wouldn’t.”

‘As Much a Red Flag’

Among the cases in which Detective Chmil was the lead detective while working with Detective Scarcella was one against a man named Nelson I. Cruz, who was 16 when he was convicted of the 1998 killing of a man in East New York, Brooklyn.

Mr. Cruz met Detective Chmil in the interrogation room after he was arrested; the detective had a confession ready.

“Chmil said, ‘Sign it and you go home,’ ” Mr. Cruz said in a telephone interview from Green Haven Correctional Facility.

Mr. Cruz refused. The detective crumpled the paper and threw it in the suspect’s face.

Detective Chmil claimed later that the defendant made a “spontaneous” confession on the way out of the police station after his lawyer had left. Mr. Cruz’s lawyer poked holes in Mr. Chmil’s account, and the judge did not allow the confession at trial, records show. A police officer told Detective Chmil that he saw someone else firing a gun at the scene; Mr. Cruz insists that he was not there.

Mr. Cruz, now 32, has been in prison since he was in 10th grade.

“I think Chmil is just as much a red flag,” Mr. Cruz’s lawyer, Rebecca E. Freedman, said. “What Scarcella was doing, Chmil was doing.”

The Legal Aid Society, which represents 20 of the people whose cases were reopened by the Brooklyn district attorney’s office, is concerned that the prosecutors’ review is too narrow, because it is limited to cases in which Detective Scarcella testified in court.

“There are literally hundreds of cases that could be affected,” said Steven Banks, attorney-in-chief of the Legal Aid Society. “It stands to reason that these 50 are just the tip of the iceberg. There’s enough evidence that Scarcella may not have acted alone. A fair look would require a much broader inquiry.”

Mr. Hynes’s office said it had added about five cases to the review since it was announced in May. The office declined to comment on any cases or say whether consideration was ever given to reviewing Detective Chmil’s investigations.

Mr. Hynes lost his re-election bid in November. The incoming district attorney, Kenneth P. Thompson, suggested during the race that he would be open to widening the scope of the review.

Mr. Chmil said the detectives had received harsh treatment from the news media. In several interviews this year, he and Mr. Scarcella were emphatic: They said they never framed anyone, manufactured confessions or coerced false testimony.

Mr. Chmil said they might have raised their voices, banged tables and used deception when appropriate, but had never used force against suspects.

Drug addicts and recanting witnesses, he said, were a fact of life in the 1980s and ’90s. “We weren’t a bunch of cowboys out there,” he said. “The bottom line is, you got to go with what you got.”

Mr. Chmil said there were 10 to 12 civilian review board complaints against him during his 33 years on the police force and at least one suit charging false arrest. Mr. Chmil left the department in 2001 and later joined two police departments in Virginia, where he is now retired.

“We had an unbelievable reputation for getting things done,” Mr. Chmil said. “I’m not saying we didn’t make mistakes.”


Police Officers in Texas Need Time to Cook Up Their Stories About Police Shootings – Only in Texas

Dallas PD changes policy to enable police coverups after shootings

(Written by Grits for Breakfast in Texas – NOT by James W. Burdick)
Regular Grits readers will recall the recent episode in Dallas where a police officer shot a mentally ill suspect, claiming he feared for his life. His partner said in a written report that the man had rushed at them with a raised knife when, in fact, a neighbor’s surveillance video showed the fellow had first backed away then stood calmly with his hands to his side. DPD fired the officer and suspended his partner for 15 days.Now, though, rather than beef up penalties for officers caught testilying, Dallas Police Chief David Brown has succumbed to pressure from the police union and changed the rules so that officers can no longer be questioned about shooting incidents until 72 hours after they happen. The Dallas News story (“Dallas Police Chief David Brown quietly changes shooting investigation policy,” Nov. 27) announcing the new policy opened thusly:
Any Dallas officer involved in a police shooting — whether the officer fired a weapon or witnessed the gunfire — will now have the right to remain silent for 72 hours under a new department policy.

And even before they give a statement about the shooting, the officers can watch any available video before they give a statement. Previously an officer who witnessed a shooting typically would have been required to give a statement to police investigators within hours of the event. And the officer who fired, while not required to speak right away, typically did so. The new policy now requires the firing officer to wait at least three days before giving a complete statement to investigators.Chief David Brown quietly made major policy change less than a month after surveillance video went public in October that showed an officer shooting a mentally ill man for no apparent reason — contrary to a witnessing officer’s account that led to a felony charge against the victim.”It is my belief that this decision will improve the investigation of our most critical incidents,” Brown said in an emailed statement.An attorney for the shooting victim, who survived, said the policy will give officers involved in unjustified shootings time to make excuses.But memory experts side with the chief.Alexis Artwohl, a nationally known behavior consultant for law enforcement agencies, said studies show officers need rest before they can accurately recount traumatic events.
One wonders, if “memory experts” say this is the better way to go, why isn’t the same courtesy extended to suspects so their memory can be similarly improved? I’m sure suspects in criminal cases would be less likely to give contradictory statements if they could wait three days and review all the evidence accumulated against them with their lawyers before talking to police. What’s good for the goose …An attorney for Bobby Bennett, the man shot in the October incident, correctly identified the real reason the police union pushed for the change and pointed out the obvious hypocrisy:
Don Tittle, one of Bennett’s attorneys, called the policy change “maddening.” Give police officers enough time, evidence and lawyers, and all their statements will sound alike and justify a shooting, he said.Plus, he said, any other witness to a crime is asked to talk to officers at the scene, he said.”If the goal is to seek the truth in an incident, then why would a witness to a police shooting be treated differently than a witness to any other incident?” he said. “No other witness is told, here, you have three days to get back to us. And, by the way, here is a copy of all the video of the incident so you can get your story straight.”

Grits doesn’t buy for a moment the argument that the policy stems from memory science – where is the science that says people remember an incident better three days later compared to soon after it happens? A few hours later? Perhaps. Three days later? No way. By that time, one’s memory begins the process of self-reinforcing a version of events that may or may not conform to what actually happened. (For more on the brain science behind that process, see here, here, and here.)The “memory expert” quoted by the Dallas News is not a memory expert at all but a consultant who co-authored a book on how police officers can “survive” the emotional and legal aftermath of deadly shootings. Looking through her website and linked publications, one is struck by the one-side analysis. Yes, memory is less certain than was once thought – which is why we’ve witnessed so many DNA exonerations based on faulty eyewitness identification – but she never takes the next step to apply that observation to suspects, witnesses, or for that matter victims of police shootings. Her schtick is all about protecting the cop from negative consequences after a shooting occurs, right or wrong.In a blog post on Friday, Dallas attorney Robert Guest made the obvious comparison to how police treat suspects: “This traumatic-event-impairs-memory theory could impact other cases as well. Take family violence cases, if we can’t trust officers memory of traumatic events how we can trust those who got in a fight with their spouse?” Guest sums up what’s going on in the Bennett episode from a non-cop’s perspective: “If you work in criminal justice long enough you see situations in which rules are broken often. Defendants break rules and face the unbridled wrath of the criminal justice system (which seeks to take their money, time, and sometimes freedom). But what happens when the Government breaks rules? More often than not, the government changes the rules so that they don’t get caught again.” That’s precisely what Chief Brown did here.This shooting and the coverup that followed by the shooter’s partner was an embarrassment for the Dallas Police Department, but not nearly as embarrassing as this shameless change in departmental policy. Just pathetic