Colleen is an attorney in the United States, and a solicitor on the roll in England and Wales.
Mendacity is a Necessary Part of Our Character and Existence
Those with the courage to become police officers deserve society’s utmost respect. They stand on the front line of the global battleground against crime. While lawyers, judges, jurors and such are nearly always safe from physical harm, police officers must arrest a suspect, frequently facing peril and danger to themselves. This proves especially true when the suspect about to be arrested is known to have engaged in violence.
When Are Ethics Eroded?
A further burden arises when a serial rapist or killer is prowling, damaging or ending the lives of those the police are viewed as duty-bound to protect. When officers feel it incumbent upon them to halt such a horror, they might become too eager to incarcerate a possible suspect without first obtaining sufficient evidence. Often it is higher ranking police officers and officials who in turn apply pressure upon their subordinates to bend the rules in order to facilitate an early arrest.
When this error is later discovered, the same public which tended to criticize the police for their perceived lack of effort can become even more irate on behalf of a suspect found to be innocent.
The Doctrine "Fruits of the Poisonous Tree"
In addition evidence gained by unauthorized methods can be excluded via the poetically named doctrine “fruits of the poisonous tree”. This doctrine is a legal allegory first used in the 1920 case of Silverthorne Lumber Co. v. United States. It applies the logic that if the evidence itself or the source of that evidence (the tree) has been obtained illegally then it is tainted and hence anything gained from that evidence (the fruit) is also tainted.
Society Deserves The Law Enforcement it Demands
Police Misconduct on Trial
It is sometimes difficult to determine the boundaries of proper evidence gathering. An added complication exists in that police misconduct cannot be defined with any absolute clarity. Though laws and principles have been set forth, every such accusation must be decided on a case-by-case basis. This article will address the struggle to create accurate tests, as well as the ways in which instances of alleged misconduct have been decided by the judicial system.
The Truth About Lying
In his autobiography, Michael Mansfield QC recounts a conference he once held with BBC television executives. Mansfield asked anyone in the room who could not recall having told a lie to raise his/her hand.
Not one hand was raised. In fairness, Mansfield admitted his own hand could not have been honestly raised in response to this query.
Noble Motives Can Sometimes Result in a Gain to The Giver
Indeed, in David Livingstone Smith’s book, Why we Lie: he posits that, during the evolutionary process, those most able to use concealment and camouflage proved the most likely to survive the endless hazards of daily subsistence. The author makes a strong argument for lying to have become, through millennium, hard-wired into our brain chemistry. In any event, there is no question that opting to mislead another holds an irrevocable place in global behavior.
Convinced Beyond Conscience by One’s Own Cons
Writer Truman Capote referred to a well-seasoned liar as “a genuine fraud”, describing one whose persona is founded upon an ideal of the self he has created or hopes one day to become. Such a fantasy can grow so ingrained as to blur the boundary between pretense and reality.
Christian Karl Gerhartsreiter
Born in 1961 he was an impostor who had adopted several aliases such as Chip Smith, Chris Crowe, Chris Chichester, Charles Smith and most famously Clark Rockefeller. He purported to be an aristocrat, art collector, physicist, ship's captain, and investor; in fact, whatever was needed to gain advantage. In 2013 he was sentenced to 27 years to life in the USA for the 1985 murder of Jonathan Sohus who he bludgeoned to death.
What is Your Real Name?
One long-term impostor, Christian Gerhartsreiter, was able, with almost frightening ease, to adopt a fresh identity as quickly as most of us alter a hairstyle or mode of dress. Having been apprehended, a list of his aliases was read out to him.
After hearing the lengthy list and then asked, “What is your real name?” he replied, “I don't know.” Given his history, this reply, may have been merely one more fabrication, a maneuver to bolster his defense of insanity.
Psycho-Physiological Detection of Deception Known as (PDD)
The polygraph is better known as a lie detector and is believed to have been invented in 1921 by police officer John A Larson. From its rudimentary beginnings it is now referred to as a tool for the “Psycho-physiological detection of deception” (PDD). It measures physical changes such as brain activity, blood pressure, pulse, respiration, voice, iris dilation, skin temperature and moisture. The measurements are recorded whilst the subject is asked and answers questions. It is believed that changes in the subject’s physical responses can differentiate the probability of him having told a truth or untruth.
Accuracy of The Polygraph
Still, there is the potential for con artists, by degrees, to grow so deeply enmeshed in their own webs as to become as engulfed by their personas as those they have deceived. As often happens, one prison inmate attempted to be paroled early by providing false information he claimed had been confided to him by a cell mate. He succeeded in passing a polygraph (lie detector) test. Later when his information proved false, he was asked how he had outwitted the polygraph. He replied, “I lie so much, sometimes not even I know when I’m telling the truth.”
This convict’s response reinforces what has been understood for some while; seasoned lawbreakers can be expected to be well-armored against the strategies of the polygraph test.
By way of example, a doctor charged with murder took several tranquilizers before the test; hence those telltale signals that the polygraph would normally detect were suppressed. A more basic method was used by a suspect who placed a sharp object inside his right shoe. He would induce the required amount of pain by pressing the skin of his foot against the object when asked something like, “Are you a vegetarian?” Then leave himself pain-free when asked, “Did you kill ABC?”
Even in the absence of chemicals or objects, those well-versed in yoga and other meditative practices may be able to control breathing, pulse rate, voice pitch and tone, eye movement, and perhaps other factors evaluated by the interpreters of this test.
Detective John Douglas
John Edward Douglas was born in 1945. He joined the FBI in 1970 as a special agent. He was both a sniper and hostage negotiator. In 1977 he joined the FBI's Behavioral Sciences Unite and taught hostage negotiation and applied criminal psychology. He created and managed the FBI's Criminal Profiling Program and later became chief of the Investigative Support Unit.
The West Memphis Three
Private investigator John Douglas quotes the aphorism that the difference between evidence and garbage is the chain of custody. This chain refers to the way any evidence is traced and tracked throughout the law enforcement system. Inferentially, this idea can expand to the point of encompassing use by the police of verbal or written confessions. A good deal of what is dubbed “evidence” is the result of human interpretation.
Injustice For Jessie
In 1993, three eight-year-old boys, Michael Moore, Steve Branch, and Christopher Byers were found in West Memphis dead in a creek, first having been sexually assaulted. Who were their killers? Police suspicion soon focused on three boys, Damien Echols aged 18, Jason Baldwin aged 16 and Jessie Misskelley aged 17.
Our focus here will be upon the most vulnerable of the trio: Jessie Misskelley. His mother had left the family home, such parenting as he received was provided by his father and a series of live-in girlfriends. Jessie had an IQ of 72, and had learning difficulties.
Violating The Source of Truth
An Attempt to Find Evidence
When the police arrived at the Misskelley home his father gave permission for him to go with them in order to clarify a few areas of confusion. He did not however grant permission for his son, a minor, to be interrogated. In addition his consent was not asked in terms of waiving his Miranda rights.
Once alone with the police officers they convinced Jessie that if he revealed the truth about the three murders, he might both help the investigators find the perpetrators and gain a portion of the reward money available to those who could help locate them.
Jessie was subjected to the polygraph test. Beforehand, the police informed him their brains were connected to his, providing them with knowledge as to whether or not he was lying or telling the truth. Once he became aware he would remain in police custody until he gave those answers they sought, Jessie “confessed” and told them everything they seemed determined to hear.
Although his interrogation went on for more than twelve hours, only forty-five minutes were preserved for the record. Thus, over eleven hours were lost, due to having been erased or never recorded. Jessie later withdrew his confession claiming he was coerced. Nevertheless at trial he was found guilty and sentenced to life imprisonment plus two 20-year sentences. At a separate trial Damien Echols was sentenced to death and Jason Baldwin to life imprisonment.
The Alford Plea
An Alford plea, in the United States is a guilty plea in a criminal court where a defendant does not admit the criminal act and asserts his innocence. The defendant admits that the evidence the prosecution has is sufficient to persuade a judge or jury to find him guilty beyond a reasonable doubt.
Appeal And Release
Following numerous appeals centering on the retracted confession and bungled DNA evidence, all three were released in 2011 having each served over 18 years in prison. However, the release was an “Alford” plea bargain and did not exonerate them from guilt.
Following his release, Jessie when interviewed regarding the killings of the three boys, stated:
“I figured something was wrong, because if I'd killed them, I’d have known how I'd done it.”
The Establishment of Miranda Rights
The facts and circumstances involved in the 1966 case of Miranda v. Arizona are so well publicized as to make their discussion in this article needless. The judicial decision gave it the status of a landmark case. At least in the U.S., and doubtless beyond, to be Mirandized” has become a verb, meaning the reading out to a suspect, taken into police custody, of his rights. These rights are:
- The right to remain silent
- The knowledge that anything he might say can be used against him in a court of law.
- The right to have an attorney present before responding to questions posed by the police.
- If unable to pay for legal representation, an attorney will be provided at public expense.
Once Miranda rights have been read out and understood, both police officers and arrestees are bound by their restrictions. Violations of any of these rights can render evidence shown to have been gleaned thereby inadmissible.
Functional Equivalent of Interrogation
In the 1980 case of Rhode Island v. Innis, the suspect, Innis, was arrested by a patrolman. Although unarmed, the arresting officer viewed Innis as having been involved in the robbery and murder of a taxi-driver via a shotgun. This officer read Innis his Miranda rights. Shortly thereafter, two other officers came forward. Once again, his rights were read out to him. Three officers accompanied Innis on the drive to the central police station. Two of them sat in the front seat, while the third sat beside Innis in the backseat. Once aware he was on his way to the police station, Innis said he wished to speak to an attorney before any interrogation.
Interaction En Route
During the drive to the station, the police complied, in a technical sense, with Innis voicing his rights under Miranda. Still, they began to talk with each other regarding the fact that a school for children with disabilities was near the area in which the gun seemed likely to have been hidden. They then discussed how sad it would be if any of these children found the gun and were injured or killed, based on believing the weapon to be a toy.
His Conscience Awakened
Horrified by the officers’ words regarding this menace, Innis asked them to turn back, in order to allow him to show them where he had buried the shotgun. Once again, the Miranda rights were read; Innis said he understood them, but still wished to return to the spot. When the police did so, they soon found the gun.
The Aftermath of His Honesty
During his first trial, Innis’ attorney moved to suppress the evidence resulting from Innis having given this self-incriminating evidence as an act of compassion. The court denied the motion, but on appeal the Rhode Island Supreme Court granted him a new trial predicated on the basis that, although not asked directly, the dialogue between the officers constituted the functional equivalent of interrogation. The mention of harm to disabled children had impelled Innis to reveal information incriminating himself
The Consequences of The Second Chance
This New Trial Proved Fruitless
The Supreme Court held that the conduct of the police was not prohibited by the Miranda decision. Without coercion, Innis had urged his arresting officers to return to the school area, in order to retrieve the gun. These officers, the court reasoned, had no basis for the idea that their conversation would have any impact upon this suspect.
While not as well-known as the Miranda case, the judicial decision in the Innis case is often cited in law school textbooks and legal briefs. The phrase “functional equivalent of interrogation” has become a part of the U.S. legal lexicon. Inferentially, if police can be shown to have deliberately played upon a vulnerability of a suspect, this could bar evidence thereby obtained.
A killing Which Continues to Elude Understanding
In 2007, 20-year-old Amanda Knox was convicted of the murder of Meredith Kercher in Perugia Italy. Both young women were exchange students: Ms. Knox American and Ms. Kercher English. They had not been acquainted until they shared a flat with a few others of a similar age. Each reveling in a free-wheeling lifestyle, Amanda and Meredith seem to have had no more squabbles than any other flat mates. Still, when Meredith’s savage murder could not be explained, Italian police chose Amanda as a primary suspect. Fixating upon Ms. Knox, nickname “foxy Knoxy”, the police exploited her youth, attractiveness, and fairly casual view of male-female encounters.
“Tag Teaming” Interrogation And Deprivation: Amanda Knox
Although contradictions often occur in cases of interrogation, accounts given by Ms. Knox and her accusers diverged more than most. Both parties agree that this questioning lasted forty hours. While Ms. Knox was questioned by twelve detectives during this time, her inquisitors changed shifts according to their work schedules.
This process is dubbed “tag teaming”, in that the interrogators enjoy access to their usual amount of food, sleep and relaxation, while the suspect’s defenses have been torn away, vulnerabilities forced to the surface by deprivation of basic bodily needs. Amanda claims she was called stupid, a liar, and or slapped on the back of her head when she did not provide the desired answer. In addition, she claimed she had been given no water or food, or permitted to use the bathroom when she pleaded to do so.
Those in charge of her questioning denied each item alleged in her claim. Still, they did not deny her claim allegation of sleep deprivation. It has long been known that lack of sleep is one of the time-proven methods of breaking down a suspect’s defenses. Thus, although Amanda said a number of disjointed things, implicating herself in Meredith’s murder, the duress upon her body and mind may have proved overpowering.
Abuse of Medical Ethics
During her incarceration, Amanda was brought to a prison doctor who told her tests taken during her time in police custody indicated she might be HIV positive. While these test results were not conclusive, they often proved accurate. Having terrified Ms. Knox, this doctor then said he would need a history of her intimate life, including the methods of birth control implemented.
When this information made its way into the press, the facts were distorted as to make Amanda appear promiscuous. While having no connection to her suspected role in Ms. Kercher’s slaying, it did serve to besmirch Amanda’s character in the public view. During the following week, she was informed that the original test results had been erroneous. Given that this prison doctor gave Ms. Knox false information based on police instruction, it is hard to conceive of a more brutish use of psychological torture.
An Ongoing Dilemma
Amanda was initially found guilty of the murder and spent four years in prison. On appeal she was released and returned to America. In her absence the prosecutors appealed to the Italian Supreme Court to have a retrial which in 2014 found her once again guilty and sentenced her to 28 years in prison. At the time of this writing the Italian courts have not applied for the extradition of Amanda from the USA.
Absolute Ethics Defy Definition
Safeguards are needed in every area of interaction where one party has significant power over the other. As governments wield the primary source of control, its various agents must be prevented from exploiting that leverage. Absolute ethics defy definition. Much of the interpretation of entrapment comes down to commonsense and a sense of fair play, more-or-less understood on a visceral level. In the natural course of thought, we reason out a problem in terms of cause and effect: freezing temperatures in a building can force its water pipes to explode; drinking alcohol tends to result in hazardous driving.
Ways of Deciding The Validity of The Defense
This type of claim calls upon those responsible for reaching a verdict to trace the action from effect to cause. The question then becomes whether or not the defendant was likely to have committed the offense if not lured into doing so by someone paid to test his integrity. A judge or jury must be convinced that the defendant was far more a prey than a perpetrator. It is fruitful for a defendant to prove that the informant procured his trust by pretending the act he was suggesting was not illegal, or the inducement to engage in such an activity were such as to overwhelm the conscience of a generally up-standing person.
Tempting Someone Vulnerable to Drug Dependence Back Into Addiction
One of the cruelest examples of entrapment lay in the 1958 case of Sherman v. U.S. Here, Sherman, a recovering drug addict, was seeking help from his physician to maintain his recovery. In the waiting room, he was approached by Kalchinian, a fellow addict, ostensibly visiting the doctor with a similar purpose. Kalchinian told Sherman his methadone treatment had failed, and then asked Sherman to procure him illegal drugs. Sherman refused.
The Temptation Trap
During the next several months, Sherman and Kalchinian continued to meet, seemingly by coincidence, within this same clinical setting. Each time, Kalchinian repeated his pleas with increasing urgency. In time, Sherman succumbed, doubtless due to his empathy for someone tormented by those cravings which had controlled his own life for well over a decade. Hence, in November 1951, Sherman yielded to Kalchinian’s pleas by obtaining those drugs he had begged him to bring.
Consequences of Compassion
Having agreed to this one transaction, Sherman was persuaded by Kalchinian to engage in two more of the same. Having documented three such victories, Kalchinian felt he had garnered sufficient evidence of Sherman’s willingness to engage in criminal activity to offer him up, to the police, in order to reduce his own sentence for involvement with drugs. Although not paying Kalchinian in a financial sense, or promising leniency due to his aid, the police were in regular touch with him regarding his interactions with Sherman.
Sherman’s Trials And His Defense
The long-drawn-out course of Sherman’s case throughout the court system is irrelevant to our purposes here. In the end, as both sides remained adamant, the case reached the U.S. Supreme Court. Ultimately, it was decided that entrapment had taken place.
The court reasoned that Sherman’s genuine efforts to free himself from his dependence on drugs were confirmed by his on-going quest to obtain help from his doctor. In addition, a search of his apartment revealed no illegal substances. His claim was further bolstered by the fact that his criminal record revealed only one conviction for drug dealing five years before his first contact with Kalchinian. His financial gain was nil, thus there was no monetary incentive to have taken such a risk.
The ultimate finding
The final decision indicated the fact that the police cannot detach themselves from an informant’s misconduct. Also, there is a limitation upon the degree to which prior offenses can impact upon later judicial findings in terms of establishing a predisposition inherent in a given defendant.
Rules and Boundaries
The most significant court statement to emerge from the Sherman case was that the boundary beyond which entrapment arises is between the unwary innocent and the unwary criminal. In short, the innocent has been entrapped, while the criminal has not been. If the defendant can be shown to have had a predisposition to have committed a given crime, many courts will view him as being a criminal. Conversely, if evidence indicates a police officer to have been the prompter in the commission of the offense, the defendant may be found innocent on the ground of entrapment.
An Ongoing Conundrum
Not surprisingly, this issue has always been highly contentious, with various tests deployed in order to establish whether or not entrapment occurred. If a private citizen, in no way linked to the police, entices a friend to engage in any brand of criminal activity, or chooses to become an informant as to knowledge obtained, the defense is not valid.
For the most part, governmental agents pose in various guises in order to incriminate suspects. Still, there is an area of ambiguity. In the Sherman case, the officer dealing with the en-trapper admitted he had not enquired into his means of seeking out potential drug sellers. In human terms, perhaps the most tragic aspect lay in Sherman’s return to drug abuse, in all probability, as a consequence of these transactions.
Inadequate Identification of an Innocent Suspect
Although the police do their utmost to protect the vulnerable, there are times when this zeal can erupt into sudden brutality. A bullying streak can come to the fore, when an excuse can be found, exaggerated, on occasion, invented. In cases of false arrest, they have sometimes been shown to have made false claims that an arrestee resisted their legitimate efforts to protect the public by bringing him into police custody.
Unwarranted harm to an unidentified man
On a wintry night of January 2010 in Vancouver Canada, the police were informed that a wife was being beaten, and the couple’s child might also be in jeopardy. At 2 a.m. upon reaching the address, two plainclothes officers, Nicholas Florkow and Bryan London knocked on the wrong door of the house which was occupied by Mr. Yao Wei Wu and his family.
Initially, Mr. Wu felt no alarm, aware he had committed no act requiring police intervention. When asked to accompany these officers outside, Wu’s compliance, he later asserted, was based upon their carrying guns, rather than their being members of the law enforcement agency.
Having separated Wu from his wife and home, the officers began to beat him with such savagery as to leave him with permanent injuries. The bones around one of his eyes were so crushed as to impinge on his vision. The rest of his body was left bleeding, covered with cuts and bruises. Only then, their energies doubtless exhausted, did the officers take the trouble to ask Wu his name. Once he had given it, the officers knew they had arrived at the wrong door of the house and that the wife batterer lived in the adjoining accommodation.
A Belated, Futile Apology
Unjustified beatings of members of ethnic minorities are often viewed as discriminatory. Hence, Vancouver Police Chief Jim Chu, also Chinese, issued a statement that claims of Wu’s resisting arrest had been false. In addition, he visited the Wu’s home to apologize both in person and on behalf of the force. Still, at this writing the Wu’s remain unappeased. They believe this apology to have been bogus.
Both Mr. and Mrs. Wu retain inner scars, he from his brutalizing, and she from observing her innocent husband being harmed, while she could do nothing to aid him. In financial terms, the damage to Wu’s eye may prevent him from working, forcing him to retrain for another type of employment.
Arguably, as with every field, thousands of fruitful acts go unnoticed, while the occasional abuse tends to generate weeks of media headlines. Still, police work is unique in that it encompasses the right to use force. In many countries, this power includes the right to carry and use firearms. Thus, the conduct of those involved in this work needs to be monitored on the penultimate level.
© 2014 Colleen Swan
Colleen Swan (author) from County Durham on June 05, 2014:
Thank you Amy. I know how you feel. We can only continue to fight for justice, and hope the future will be positive.
Amy Jordan on June 04, 2014:
When we are young we look upon at police officers with great awe and respect. We consider them as heroes because we believe that they can turn wrong to right. But as we grow up we realize that they are more villains than heroes. The cases of police misconduct are on a rise like never before. They seem to think that they are the supreme authority, nothing can stop them and they can do whatever they want. And unfortunately for us this is true. While working with Toronto Defense lawyers Kostman and Pyzer I had seen many people who were the victims of police misconduct coming to them for justice. Everyone had sad and horrifying stories to tell. I feel really bad at the current situation.
Colleen Swan (author) from County Durham on May 12, 2014:
Thank you Paul for looking in. It is unfortunately true that if I had included in this article all the cases of corruption and brutality that occurred in Canada; this article would have become a book.
Paul Duarte on May 12, 2014:
I have been through hell and back with the police for being in the right place at the wrong time. I have been subjected to fake drug deals, by fake mobsters and fake vigilantes, harassment and deceptions beyond your imagination. A double sting which involved over 30 officers and perhaps hundreds of thousands of tax payers money, which resulted in nothing. I have a more detailed description listed on my web site, but since web sites are not permitted to be listed here, feel free to e-mail me at firstname.lastname@example.org ans ask me about my experience.