Posted on January 30, 2012 by Walter Reaves

Just how far can the police go?

Scott Henson at Grits for Breakfast commented on a story about the tactics used by the Austin Police Department in an attempt to gain a confession in an old case. The case was none other than the one that MIchael Morton was convicted for - the death of his wife, Christine. You probably remember that is the case where John Bradley fought for years to prevent DNA testing  - testing that eventually cleared Morton and implicated another person - Mark Norwood.

In an attempt to gain a confession the Austin PD took a DNA report from another case and doctored it so that it appeared to be in Norwood's case. They then showed it to Norwood, claiming the DNA evidence pointed to him. According to the police they had already been verbally told the results implicated Norwood, but didn't have the report yet.

To Norwood's credit he didn't confess. Had he done so, the confession probably would have been suppressed. Does that mean the officers should be off the hook - no harm, no foul?

It surprises many people to learn that the police are allowed to lie to suspects. They can tell a suspect they have evidence that doesn't exist, or tell him witnesses have already given statements. While that doesn't seem fair, fairness has never been much of a concern to police. "The end justifies the means" is a belief that is entrenched in law enforcement. And there really is nothing to curb the potential for abuse.

We know innocent people confess. And even if they aren't innocent does that mean that police should be able to use whatever means are necessary to solve a case?

Scott believes the investigators in this case may have problems, and I hope he is right. While officers have a right to lie, they don't have a right to create and manufacture evidence, which they did here. Clearly they violated the Texas Statute prohibiting tampering with evidence. (Art. 37.09) But will they ever be prosecuted? My guess is no. After all, a prosecution might chill future investigations, and allow criminals to go free. And who would have to prosecute them - the prosecutors they work with on a regular basis.

I've written before about the need to hold prosecutor's accountable - otherwise there is no incentive for them to do the right thing, and follow the rules. The police are no different. There are laws on the books, and they aren't immune just because they are the ones who enforce them.

This is definitely a story worth following.

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Posted on December 6, 2008 by Walter Reaves

What happens when you trick the cops?

This comes from Robert Guest at Dallas Criminal Defense Lawyer. A new reality show descended on Odessa, Texas. Apparently they went in response to a case involving Yolanda Madden, after an informant used by the police department testified in Federal Court that he planted evidence on Madden; she was eventually convicted and sentenced to 8 years in prison. Even with that testimony, and both Madden and the informant passing polygraphs, her conviction still stands.

The show decided to set up a sting. They rented a house in Odessa, and placed grow lights on two Christmas trees inside. Apparently the police believed they were growing marijuana, and in less than 24 hours, a search was executed on the house. When the officers arrived, they were greeted by Kopbuster's attorney. Going with the strategy that the best defense is a good offense, they arrested the attorney and took him to jail.  He wasn't released until the media showed up, wanting to know what happened.

According to the story, the police department has refused to release the affidavit for the search warrant. That's not too surprising, since you have to think it is extremely incriminating. If an informant said he had been inside and observed the marijuana, then the affidavit is clearly fabricated. If they relied on some type of thermal imaging, it would be illegal. Since nothing illegal was taking place, it is hard to understand what they could come up with to justify their actions.

What's amazing about this story is how it is way to trap the police. If everything in the story is true, it reflects a systemic problem in the police department. If this did happen, all cases involving informants will be called into question. It doesn't take much imagination to predict the financial consequences to the city.

Some may question the techniques used by the show; the police department is trying to come up with a crime to charge with them, although I can't imagine what it would be. The fact is, dishonest police officers can fabricate information, and there is no way to prove they did so. All they have to do is allege they have information from an informant, who has provided truthful information in the past When they don't have to name the informant, there is no way to verify the information. Traps like this are the only  way to uncover this type of misconduct. In reality it is nothing more than the same type of techniques used by police. They routinely set up "reverse stings", to uncover those willing to engage in criminal behavior. Here it was the police engaging in the illegal behavior.

It will be interesting to watch this story unfold. Both to see what the facts actually turn out to be, and to see how it plays it; both for the Kopbuster's attorney and Yolanda Maden.

I'm interested to know what other people think about this tactic. Post a comment and let me know your thoughts, pro or con.

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