When the Police Lie

When the Police Lie

  Police accountability – or lack thereof – made headlines after the murder of George Floyd as concern over physical force grew. Now, some agencies and individuals are taking aim at a subtler form of police violence. For uncounted numbers of criminal defendants, police officers need only lie to ruin lives with wrongful convictions. Difficult to prove, police deception can remain hidden for decades. Or forever.

Personnel records of police officers and prison guards, including complaints and disciplinary actions, have unique protections under Michigan’s Freedom of Information Act (FOIA) laws. While the records of other public employees such as teachers or firefighters are available through FOIA, police officers (and prison guards) are exempt, rendering the media and public blind to ongoing misconduct unless a police administrator or federal agency identifies a problem and pursues it publicly through the courts.

Patterns of dishonest arrests span years or decades because complaints against officers are not compiled by any agency; there is a community presumption of honesty for officers. Recent exonerations and investigations highlight the problems: falsified search warrant affidavits, fraudulent evidence, filing false police reports1 to justify stops or arrests, fabrications to cover up slipshod investigations or justify the use of force, misuse of informants2, false identifications and ultimately, false testimony. Accused officers find employment3 with other police agencies.

The Roman poet Juvenal asked, “Who watches the watchmen?” In Michigan, the answer is, no one.

In 2019, a Detroit city attorney admitted that 74 current DPD officers4 have been found to be “untruthful,” but Detroit Police Chief James Craig apparently didn’t see that as a problem for criminal defendants. He expressed concern that the prosecutor might refuse to charge a suspect if these officers were involved in the arrest.

A Change Is Gonna Come

There is some movement to correct the situation. Recently, Ingham and Wayne County Prosecutor offices have publicly discussed “Giglio-Brady lists” containing information on dishonest officers, which they will dole out to defense counsel on a case-by-case basis. Wayne County’s list5, which was made public in July, contains 35 names (not 74, referenced above), the agency they work for, and a brief explanation for their inclusion. It is posted on the prosecutor’s official website. It does not provide any underlying information on the misconduct. Ingham’s list6 raised eyebrows last month when it was revealed that the police chief is one of 15 names on the list. (The list itself has not been released as of this writing.) The Lansing State Journal reported:

A memo received through a public records request from the Ingham County Prosecutor’s Office said the 15 officers on the list have engaged in “various types of conduct from falsifying a sick leave request to avoid training to the more egregious act of intentionally including false information in a police report.”

State Representative Tyrone Carter in June announced he is crafting legislation7 to create a central database for officers who’ve been disciplined, although there is pushback and possibly no plan to make the records public. Since then, legislators and allies have been considering that and other proposals to facilitate greater transparency and accountability for members of law enforcement.

In 2016, the ACLU succeeded in reaching agreement with the East Lansing police8 when they sued to obtain the citizens complaint records of an officer who arrested their client. They argued that transparency in police misconduct complaints is both required by law and an important component of strong police-community relations. To settle, East Lansing police agreed to implement a new policy whereby all citizen complaints would be disclosed to the public upon request.

The city of Livonia announced9 in July, apparently in response to a billboard message about racial profiling, that they had created a website detailing policies and 2019 statistics10 to further transparency. The group that created the billboard message, “Driving While Black? Racial profiling just ahead. Welcome to Livonia,” had been engaged in a months-long effort to get traffic stop data from the police department through FOIA.

Stopping short of calling to defund the police, Attorney General Dana Nessel announced in June a proposed list of ideas11 to make the state’s police more accountable. Her ideas range from streamlining investigations, creating a publicly accessible police “misconduct registry” and taking away retirement benefits from bad officers to creation of an independent process for investigating civilian deaths involving police. 

Although reform opponents often claim law enforcement is against releasing information, a recent survey suggests this may not be true. In March 2020, two U of St. Thomas (Minnesota) assistant professors released a draft paper12, destined for the Cardozo Law Review, detailing the results of their survey among law enforcement leaders on the issue of transparency. They write: 

The results of the study are enlightening. While law enforcement unions typically portray officers as universally opposed to release of misconduct records, the administrators in this study were deeply divided on the topic. More administrators found public access to misconduct records beneficial to their departments and communities than harmful to their officers. Most of the benefits came in the form of improved community relations and public trust. The harms administrators did identify were largely reputational; very few provided support for the notion that public access to misconduct records endangers officers. Administrators also provided many suggestions for changes to existing records laws.

SADO’s Police Accountability Database

SADO began work in March 2020 to redesign and expand our Police Accountability Database13 (PAD). A project begun in 2012, the PAD provides defense teams with a starting place for police integrity investigations by compiling publicly available information such as local or federal law suits or charges, newspaper articles or other information from the community.

Although the PAD is limited by the lack of available information and by a lack of resources for updating, it was created because our state lacks any similar resource for defense teams. PAD allows the defense team to enter the name of an officer to see if SADO has found torts and media related to them. Sadly, at this time it is not comprehensive of even the available information. Even with the information in PAD, we caution defense teams to verify all allegations found in PAD and determine whether the information will be effective evidence by contacting the information sources.

While we wait for sufficient transparency from our government, SADO’s database expansion is a first step in solving this problem, although without the release of information on both substantiated and unsubstantiated complaints against officers, it will remain incomplete. 

Why It Matters

Police officers take an oath, the Law Enforcement Code of Ethics, that states, in pertinent part: As a sworn police officer, my fundamental duty is to serve the community; to safeguard lives and property; to protect the innocent against deception, the weak against oppression or intimidation and the peaceful against violence or disorder; and to respect the constitutional rights of all to liberty, equality and justice.

And yet, police misconduct is alarmingly usual and has been for decades. Between 1995 and 2000, the Detroit Police Department (DPD) came under fire for a variety of issues. The Homicide Department in particular was accused of heavy-handed and unconstitutional tactics in their pursuit of criminals. They were criticized for, among other things, warrantless and prolonged detention of presumed witnesses and dishonest gathering and use of informant information. Internal investigation of police misconduct was disorganized, sporadic, poorly recorded and a low priority. Some instances of manipulated lineup identifications and suppression or manufacturing of evidence during the early 2000s would finally come to light years or decades later.

At then-Mayor Archer’s request, following his meeting with the US Attorney General’s office, a federal investigation into the situation began in December of 2000. By 2003, the DPD had proved unable to change its culture enough to satisfy the Department of Justice, and two consent judgments were entered into between these entities. An independent monitor was appointed to oversee its implementation, an arrangement that lasted until 2016, when it ended unceremoniously. Observers say little had changed.

The culture of secrecy in which police departments are shrouded directly conflicts with the above oath. It discourages accountability, demonizes whistleblowers, and facilitates internal lawbreaking that destroys the lives of innocent defendants, their families, and communities. Exoneration years later is no substitute for the years lost, years of nurturing children and families, pursuing a career, learning and playing and growing. Prison costs the family in comfort packages and phone call fees, travel costs for visitations and endless worry and sadness. Community trust evaporates when an innocent person is taken away; the community often knows the truth.

We must: change the FOIA laws, create a state-wide, public database listing all complaints, disciplines and investigations involving significant allegations (including unsubstantiated allegations) and institute sure and swift penalties for confirmed corrupt behavior.

by Julianne Cuneo
Chief Investigator
State Appellate Defender Office

Julianne Cuneo is the former owner of Detroit’s Sunshine Investigations.  She began her career investigating police brutality in civil rights cases in 1982, expanding her practice in the mid-90s to include criminal defense work. The common thread between physical police brutality and the brutal dishonesty that wrongly incarcerates citizens, devastating them and their families, drives her work in exposing patterns of police misconduct.

URLs for hyperlinks:

1. https://www.detroitnews.com/story/news/local/detroit-city/2016/04/21/two-former-detroit-officers-charged-misconduct/83352604/
2. https://www.bridgemi.com/michigan-government/prosecutors-put-michigan-man-prison-life-then-they-got-him-out
3. https://www.freep.com/pages/interactives/disorderly-conduct/
4. https://www.detroitnews.com/story/news/local/detroit-city/2019/09/23/untruthful-detroit-cops-problem-court-cases-experts-say/2263442001/
5. https://www.waynecounty.com/elected/prosecutor/press-release-giglio-brady-list.aspx
6. https://www.lansingstatejournal.com/story/news/2020/07/06/lansing-police-chief-brady-list-untrustworthy-ingham-county-officers/5358594002/
7. https://www.detroitnews.com/story/news/politics/2020/06/14/police-leaders-lawmaker-spar-database-plan-disciplined-officers/3174292001/
8. https://www.aclumich.org/en/cases/police-misconduct-complaints-are-public-records
9. https://www.clickondetroit.com/news/local/2020/07/11/new-website-featuring-livonia-police-department-policies-data-launched-after-groups-call-for-transparency/
10.  http://livoniapd.com/pact/
11. https://www.mlive.com/public-interest/2020/06/michigan-attorney-general-dana-nessel-wants-to-take-retirement-benefits-from-bad-cops-other-possible-reforms.html
12. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3552012
13. https://www.sado.org/Account/Login?ReturnUrl=%2fLocate%2fMisconducts