Testilying: How I became “Radicalized” Against the Criminal Justice System (Part Six)

My experiences navigating the abject cruelty of the criminal justice system while representing misdemeanor defendants in the Bronx.

During my third year of law school, one of my courses was a criminal defense clinic, where I represented misdemeanor defendants in Bronx Criminal Court under a student practice order under the supervision of our professor and an incredible organization called the Bronx Defenders. I am sharing some stories about that time. These stories are based on notes, memoranda, and filings that I saved from that time, as well as my own recollection. Names and other identifying information have been changed to protect the privacy of the people involved. You can read previous posts here, here, here, here and here.

Police lie. All the time. It’s not necessarily a bad thing. Undercover officers lie about their identities. There’s a pervasive myth that if you ask an undercover police officer if s/he’s police, s/he has to tell the truth (it’s not true). During interrogation, police will lie about what information they have, what other suspects have told them, what lab reports say, etc. Police, like anyone else, are allowed to lie in most circumstances. Police can and do lie to suspects, witnesses, etc. during the course of an investigation and it’s fine.

Police sometimes lie about other things, like this officer who lied about a McDonald’s employee writing “fucking pigs” on his coffee cup. Take a look at Yelp; a lot of people lie about bad service. It’s not a criminal offense.

The only time police officers are required to tell the truth is when they are under oath. This happens most commonly when signing a complaint and when testifying in court. If they lie under oath, they can (theoretically)be punished under penalty of perjury. In New York lying on a police report is a Class E felony and testifying falsely in court under oath is a Class D felony.

Police even have a name for lying under oath: testilying. The New York Times wrote a series of articles about the practice in 2018. They also published an article about testilying in 1994. According to these Times articles, the practice is so pervasive that the police coined the term themselves.

Gary was a 20 year old Latino man. According to Gary, he was walking home from the train at about midnight while listening to music through his headphones. It was dark. He was wearing a backpack but had nothing in his hands. He noticed a marked NYPD cruiser up ahead of him, with the lights activated. As he approached, he noticed two police officers arresting another man. Gary kept walking. As he passed by the officers, without warning, one of them grabbed him, threw him up against the car, patted him down, and searched his backpack. The officers found 6 small baggies of marijuna in the backpack. They arrested Gary and charged him with Unlawful Possession of Marijuana in the 5th degree (this was before the recent decriminalization of marijuana in New York).

If Gary was telling the truth, then the police would have no reason to search him. In theory, police cannot just search anyone they want for any reason or no reason at all. It would be in violation of the Fourth Amendment’s prohibition against unreasonable search and seizure. Without a search warrant, police would need probable cause that Gary was in the commission of a crime. Even the controversial practice of of “stop and frisk” requires police to have a reasonable suspicion that the suspect is in the process of or about to commit a crime. Reasonable suspicion cannot just be a hunch; it must be based on “specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant intrusion.” That’s from the landmark Supreme Court case Terry v. Ohio.

The police report confirmed several parts of Gary’s story: it was midnight, it was dark, they were standing by their marked cruiser, and Gary was walking down the street wearing headphones and a backpack. But it differed in one striking detail. The police report alleged that Gary was holding a bag of marijuna in his right hand in plain view of the officers. They saw the marijuna, placed him in custody, and searched him and his belongings, finding an additional five baggies of marijuana. Plain view is a legal term of art meaning that the criminality of the instrument is apparent just by looking at it.

NYPD’s version of events is simply not credible. In order to believe the police, you’d have to believe that Gary, seeing a marked NYPD cruiser with it’s lights flashing, walked by the police, not only holding his marijuana in his hand, but held it out with his palm turned up (it was dark). What person is stupid enough to be holding drugs and walk right by the police with his weed in his hand like he’s serving them cocktails?

A better question is who would believe such a story? Judges believe them. Juries believe them. People go to jail based on these lies. Even worse, people get killed and police are protected by these lies. Several police officers witnessed Laquan McDonald’s shooting and none of them told the same story as the video that eventually surfaced. Until the video was released, Laquan’s murder was considered a justified use of deadly force. Thankfully, the video was released and Laquan’s killer, Jason Van Dyke, was eventually convicted of Second Degree Murder and sentenced to 6 years and 9 months in jail. He was found not guilty of official misconduct. Three of the police officers who witnessed the shooting were charged with conspiracy, official misconduct and obstruction of justice connected with a cover-up of the shooting. They were found not guilty.

Police lie. All the time. When they lie under oath, it’s not just a bad thing: it’s a criminal act and it’s one that is seldom punished.