Updated: Dec 28, 2020
I was listening to NPR this morning as I often do while cooking breakfast and helping get Eden off to school. I’m usually half awake and moving slowly, and I find that the mellifluous voices of Steve Inskeep and Renee Montagne tend to soothe my foggy brain and ground me enough so that I don’t burn the kitchen down. One of today’s stories was about cops who lie while on the witness stand. It turns out the practice is so common that there’s even a term for it: “Testilying.”
It’s not a recent phenomenon, although, given the current antipathy toward law enforcement, it definitely seems as if it reflects and reinforces a current perception. But hearing about it, brought me back to a stint I did on a jury twenty years ago in which me and my fellow jurors were called upon to make a conviction based pretty much solely upon the testimony of a police officer.
During the voir dire selection process all of us potential jurors were asked if we would grant a police officer’s testimony any more or less weight than we would anyone else’s testimony. I said honestly that I would judge what a police officer said based on his credibility and how he came across. In other words, I would look at him the same way I would look at an opposing poker player in order to determine if he was lying or telling the truth.
The case, itself, was a pretty straightforward one, what is called a buy and bust operation, in which an undercover cop poses as a potential drug buyer and then arrests the guy selling him the drugs. Whatever you think of the method, it is—or at least was at the time—considered a legitimate way to attack the problem of street purveyors.
So the entirety of the case rested upon whether or not you believed the arresting officer. Despite my liberal bias and distaste for the technique, I found the officer to be credible and thought the case was pretty much a slam dunk. In the jury room we took an initial poll to find out where we were at, and the vote was 10-2 in favor of conviction. As we subsequently began to discuss the case and find out what the two dissenters were thinking, it came out that they both automatically dismissed the cop’s testimony “because he’s a cop.”
“But you said during voir dire, while under oath, that you wouldn’t give more or less credence to a cop’s testimony,” I said with indignation.
“Cops lie,” was the response.
The two holdouts from our guilty verdict were steadfast in their beliefs, no matter what they had told the lawyers and judge during voir dire. In the end, after many hours of arguing, after which we were urged by the judge to try and reach a verdict, our jury was hung.
At the time, I was angry. The case had seemed very cut and dried to me. I was angry that the jurors hadn’t gone into the jury room with an open mind. That they had lied. But this morning, listening to NPR, I wondered, all these years later, if they hadn’t been right in their conclusion. Maybe I had been overly naïve, too trusting in the system. Maybe the cop had just been doing what cops do and I had been duped. Of course that didn’t change the underlying premise of whether or not, as a juror, you were obligated to disclose your prejudices. Still, it’s curious to look at what one thought was settled history—namely how I had decided to frame that story when I told it to others and myself—and have to consider that perhaps I had lost the forest for the trees.
Post Script: Out of curiosity, I googled “buy and bust,” and it turns out that in NYC the DeBlasio administration has recently halted the practice. There are liberal and conservative arguments for and against, but in the end, interestingly, the most compelling argument to end the practice is that particularly in Brooklyn and the Bronx, the DA’s have “gone soft on punishment.” In other words, even when they’re getting convictions, they’re not asking for stern sentences. So it’s costing the taxpayers money and using manpower with no apparent benefit. Unsaid is that they might also be having a hard time getting juries to convict based solely upon the testimony of a police officer.