Conundrum

The Rampart corruption scandal in the Los Angeles Police Department has been blamed partially on judges tolerating false testimony by police officers in criminal cases. Critics suggest that inaction by judges allowed bad officers to frame innocent suspects, and perpetuated corruption within the LAPD. “Not on my watch,” I vowed. I became a judge three years ago and believed that I would have little difficulty recognizing problem testimony or knowing what to do about it.

I have since heard the testimony of hundreds of officers and generally have been favorably impressed. But one day I questioned the candor of two testifying officers involved in a drug bust -- and came to appreciate the difficulty of the situation for a judge.

The two officers, dressed in plainclothes, had been watching apartments where there had been complaints of narcotics activity. They testified at a preliminary hearing that they were walking by a second-story apartment when the door swung open and a 40ish woman clutching a piece of pizza said, “Want a slice?” She gestured toward a pizza box in the living room. The officers, members of a specialized narcotics task force, said they refused but accepted the woman’s invitation to enter her apartment. Minutes later, they said, the woman requested a private chat in her bedroom with the senior officer, whom she knew from previous encounters was a police officer she could trust. Her bedroom floor was littered with zippered plastic bags, a clear message to a narcotics cop: This is where I package my dope for sale. A subsequent search of the apartment found illegal drugs, and the woman was charged with possession of narcotics for sale. She sat glowering in my courtroom during the testimony.

On smooth days, all actors in a courtroom drama seamlessly glide through their respective roles. But something was wrong, I thought, glancing from prosecutor to defense counsel to the bailiff and other court staff. Everyone had a quizzical look. Why would someone who had anything that screamed of narcotics involvement invite a police officer into her bedroom to observe the items?

After the hearing, I saw the prosecutor watching the second officer as he left the courtroom. The prosecutor announced that he would not argue that the apartment search was legal. That meant the narcotics could not be admitted into evidence, and the case fell apart. I dismissed it.

I remained on the bench, perplexed as to my next step. Court personnel agreed with me that something seemed awry in the testimony, but none could put a finger on the problem. I recalled my experience as a prosecutor in a different courthouse, where prosecutors, defense attorneys and even judges knew a particular narcotics officer as “The King of Consent.” His sarcastic nickname derived from his oft-repeated testimony that suspects gave him consent to enter and search their homes. During court hearings, however, defendants often contradicted the officer, saying he had entered without permission. Over time, several judges told prosecutors that the officer would never again be allowed to testify in their courtrooms. They didn’t believe him. Nonetheless, the officer continued to testify in other courtrooms.

Perhaps the judges who banned the officer were searching for a sensible solution to an ethical dilemma. After all, it’s one thing to suspect that a police officer has lied, but proving it is a different matter.

In the “pizza” case, what was my next step? Reporting impressions rather than facts to a police agency could unfairly taint the careers of the officers. Yet if all of us in the courtroom had similar suspicions, should they be ignored?

I consulted my judicial ethics handbook. It spoke about my duty to report misconduct by attorneys, by other judges, even by me. It said nothing about possible misconduct by a police officer. The book did discuss my duty to report a potential crime, but the standard was vague.

A judge has a duty to promote integrity in the judicial process. Citizens will lose confidence in the legal system if they believe judges ignore crimes they observe from the bench. On the other hand, judges are required to be impartial. If a judge takes steps that could result in perjury charges against a police officer, is the judge choosing sides?

Yes, I had a strange feeling about the officers’ testimony. But without further investigation, it was just a feeling, not perjury. I could understand why a judge might let the issue slide.

I asked whether prosecutors intended to talk with the officers’ supervisors. “No,” I was told. The misconduct was not clear. The D.A.’s office would not report the officers based on a hunch.

I ordered a transcript of the hearing. It sat on the corner of my desk for months, beseeching me silently to either do something or put it away. Then five months after the “pizza” hearing, while reviewing motions scheduled for my court the following day, I saw a case questioning the legality of a drug search conducted by the same two officers. The details were similar.

I knew that I could not remain neutral. This decision was clear. I excused myself from the case, announcing that I might be biased against the officers, and I offered both sides an opportunity to review the “pizza” hearing transcript. Each side made a copy. The new case went to a different judge.

How did it turn out? I don’t know. Once a case is moved from my courtroom, ethically it was no longer my business. Were I to have followed the case, or talked to the new judge, I might later have been accused of “embroilment” -- a fancy word for a judge becoming too interested in the outcome of a case. Judges are often cautioned to maintain professional distance and not become embroiled.

I do wonder how that case ended, but I didn’t write down the defendant’s name and I don’t know where it was transferred. But at least both sides were now aware of doubts about the credibility of the two officers. Once a prosecutor’s office becomes aware of negative information about the credibility of a witness, it is legally required to communicate it to defense attorneys in future cases. So now there is an institutional memory about these two officers, one I hope does not unreasonably jeopardize their careers.

In balance, this may be a conundrum with no right answer. But perhaps raising this issue is a small first step that will stimulate discussion. And that, I have learned, is how a system might best be transformed: cautiously and incrementally.