Honest Mistakes

One of my first experiences as a young lawyer-to-be had a huge impact on my view of our criminal justice system. I was still an intern and was covering a case for my brother’s partner. In this case, my client was pulled over for running a stop light and eventually arrested for a misdemeanor which has escaped my memory some 12 years later, but I am sure it was something like Possession of MJ. My guy was on probation at the time, so an application to accelerate was also filed against him for the new crime. As I pored over the records of the stop, something jumped out at me. My guy was pulled over going north (it might have been west) on Grand and Randolph at something like 10:00 at night. Even though I mostly lived elsewhere, I had been around Enid enough to know that something sounded fishy about running a stoplight in this area at this time. I called the city engineer in charge of traffic lights and found out I was right. I filed a motion to suppress the stop and we set it for hearing in front of the late Honorable Judge Harvey.

The prosecutor in the case, Bryan Slabotsky, was a grizzled veteran ADA. He called his officer who testified to basically what was in the report. My guy ran a stop light, so the officer pulled him over and eventually found probable cause to arrest him for whatever the charge was. On cross I asked if he was trained to prepare complete and accurate reports (yes). If everything in his reports was true and correct (yes). If there was anything he would like to add to his reports (no). If his testimony was accurate in court that day (yes). How sure was he of the testimony (100%). How sure was he that my guy ran a red light (positive). Is he sure he was positive (yes). Could he see the light turn red (yes). I am pretty sure I eventually drew an objection from the ADA for how many times I asked him about the red light. Repeatedly, the officer said he was 100% positive the light was red when my guy went through it.

If you are an Enidite, you can guess what happened next. I put on the city engineer in charge of lights who testified there was no way the light could’ve been red, because lights in that direction flash yellow after 8:00 PM (or something like that). They had flashed yellow for years and they have never had any problems with both ways flashing red, and there had been no problems on that particular day. The ADA, for his part agreed to dismiss the case. The judge still found my guy guilty of the probation violation somehow, but instead of going to jail, he was free.

The ADA said it was an honest mistake. In the next 11 years, other “honest mistakes” have happened with surprising regularity. A few more quick examples (out of many, many more):

• A few years ago my client was accused of a very bad crime. There was quite a lot of evidence against him. A well regarded detective testified about his interview and investigation. As is common, the ADA asked him if he saw the person he interviewed in the courtroom that day and he said yes, and indicated the guy sitting next to me. On his way out, he ran into a mutual friend and said: Whew! I am glad that was the right guy, I didn’t know if Mr. Faulk would try to play a trick on me and put someone else in that chair. Even though the facts and other testimony made my guy clearly the guy who was involved, this officer told the Court, under oath, he knew it was my guy.
• Last year a highway patrolman pulled my client over for DUI for crossing the centerline a couple of times. While on the stand I asked him to draw the road with the lane lines. I think asked him to draw a picture of how far over the lane line my guy was. He drew a picture of a car more than halfway over the lane line. I asked him if he was sure, if he recollected the night in question, if he knew 100% that my guy was far over into the other lane. He said yes. When I showed the video, it was clear that my guy was nowhere near crossing the middle of the lane line. That, in fact, he MAY have barely touched the lane line. In response he backpedaled and said something like,”Well it was more than a year ago, so maybe I didn’t remember as clearly as I thought.”

And that brings us to the main reason for this post: This last officer testified at an implied consent hearing for a DUI last week. While testifying he said he arrested my client at, let’s say 12:50 P.M., and began the 15 minute deprivation period while he was in the car. The test was administered approximately 15 minutes later. His probable cause affidavit indicated he first made contact with my client at 12:50 P.M. Upon questioning why he would put an inaccurate time on the paperwork, he said, “It seems to be an honest mistake.”

So here’s the excuse many will make: Officers are only human. They make mistakes. There’s always a bad apple. Etc. But the common denominator in each of these stories is that nothing happened to any of these officers. They are all still on the job. Some have been promoted. They are testifying in other cases. With other people. And all are given every presumption that they are telling the truth, rather than what the defendant is saying because, after all, if they weren’t doing anything wrong they wouldn’t have been arrested.

Now here’s the other side: I have had several officers testify completely honestly, even when they knew it would hurt the case. I had one say he didn’t remember if it was my client or not he talked to. I have had them admit they didn’t do a certain report. These are the kind of cops that we need on the street. These are the kind of cops that we need in courtrooms. Not because it is good for my clients, but because it is good for the criminal justice system. There is no such thing as an “honest mistake” when you have the ability to handcuff someone and throw them in a cage. While they are all human, when they are given that kind of responsibility and power, they have to be better than the general population. It may seem like a small thing to identify a person sitting next to the attorney as the guy you talked to even when you don’t really remember, or to accidentally put the wrong time on a sworn statement, but in reality, it is a HUGE deal. Judges and juries rely on their TESTIMONY to be error free. Those kind of “mistakes” are what put innocent people into prison. But all too often, it isn’t. Think about that next time you see a report in the newspaper or on TV when they are just regurgitating facts from an arrest report.

Things aren’t always as they seem.