Christopher Parham was grocery shopping for his boss when Henry Daverin, a plainclothes NYPD officer, approached him. Daverin accused Parham of driving recklessly on an illegal scooter without a helmet; a few minutes later, Parham was writhing in pain on the sidewalk outside. What happened during those few minutes was a matter of dispute. The NYPD said that Parham, a Black 19-year-old, had violently resisted arrest. Daverin and his colleagues said that they did not use force against him even though Parham had gruesome Taser burns all across his back.
Then surveillance video of the episode emerged—and proved that nearly every detail of the NYPD’s account was false. Parham had immediately cooperated with Daverin; he did not resist arrest. Nonetheless, Daverin and his colleagues had assaulted Parham, tackling him to the ground, then Tasing him over and over again. After Parham’s attorneys released the video—and his local representatives raised concerns—the district attorney dropped all charges. Daverin, who had been named in at least 10 other misconduct lawsuits, was never disciplined, either for brutalizing Parham or for lying about it. Two years later, he remains on the force.
The police reaction to George Floyd’s murder, as well as the resulting nationwide protests, introduced many Americans to the fact that law enforcement officers lie. After officer Derek Chauvin killed George Floyd, the Minneapolis Police Department issued a statement falsely claiming that Floyd “physically resisted officers” and excluding the fact that Chauvin knelt on Floyd’s neck for nearly nine minutes. When Buffalo police officers violently shoved a peaceful 75-year-old man, their department falsely asserted that the victim “tripped and fell” during “a skirmish involving protesters.”
This tendency to lie pervades all police work, not just high-profile violence, and it has the power to ruin lives. Law enforcement officers lie so frequently—in affidavits, on post-incident paperwork, on the witness stand—that officers have coined a word for it: testilying. Judges and juries generally trust police officers, especially in the absence of footage disproving their testimony. As courts reopen and convene juries, many of the same officers now confronting protesters in the street will get back on the stand.
Defense attorneys around the country believe the practice is ubiquitous; while that belief might seem self-serving, it is borne out by footage captured on smartphones and surveillance cameras. Yet those best positioned to crack down on testilying, police chiefs and prosecutors, have done little or nothing to stop it in most of the country. Prosecutors rely on officer testimony, true or not, to secure convictions, and merely acknowledging the problem would require the government to admit that there is almost never real punishment for police perjury.
Officers have a litany of incentives to lie, but there are two especially powerful motivators. First, most evidence obtained from an illegal search may not be used against the defendant at trial under the Fourth Amendment’s exclusionary rule; thus, officers routinely provide false justifications for searching or arresting a civilian. Second, when police break the law, they can (in theory) suffer real consequences, including suspension, dismissal, and civil lawsuits. In many notorious testilying cases, including Parham’s, officers blame the victim for their own violent behavior in a bid to justify disproportionate use of force. And departments will reward officers whose arrests lead to convictions with promotions.
Two major cities are taking two different approaches to the problem. In New York City, prosecutors keep secret databases of unreliable police officers, though only two boroughs actually prohibit those officers from taking the stand. Without further reforms, however, this approach fails to address the underlying problem: Prosecutors are reluctant to accuse officers of lying in the first place, or to investigate an officer’s claims to learn if they align with reality. As a result, an officer who lies convincingly can evade the list indefinitely. In San Francisco, by contrast, District Attorney Chesa Boudin has sought to eradicate the incentives that lead police to lie in the first place. Both cities are witnessing an experiment play out in real time: What happens when the criminal justice system can no longer rely on its enforcers to tell the truth?
The New York Police Department provides a case study in how the criminal justice system rewards lying. One NYPD officer, David Grieco—commonly known as Bullethead—has been sued at least 32 times, costing the city $343,252, for civil rights violations, including excessive force and fabrication of evidence. Yet Grieco was promoted and prosecutors continued to call him to the stand long after a slew of his victims blew the whistle on his violent and lawless behavior. Judges continued to rely on his word to lock up defendants. And Grieco’s name did not appear on Brooklyn District Attorney Eric Gonzalez’s long-secret list of officers with known credibility problems.
Grieco is a symptom of a much deeper problem. Widespread lying about Fourth Amendment violations is at least as old as the exclusionary rule itself. The Supreme Court applied this rule nationwide in 1961’s Mapp v. Ohio, preventing state prosecutors from relying upon illegally obtained evidence to secure a conviction. Mapp spawned a surge in “dropsy” cases: Rather than admit to an illegal search, police claimed that defendants simply dropped drugs on the ground in front of them, since evidence found in “plain view” can be used at trial. Studies of criminal trials in New York City found that, after Mapp, police began lying about arrests to ensure that evidence would be admissible. In the early 1970s, the New York district attorney even told the New York Court of Appeals that, since Mapp, officers lied on the stand in a “substantial” number of “dropsy cases.” Two decades later, the Mollen Commission—a famous investigation of the NYPD—found that officers routinely engaged in perjury and falsification of records, “the most common form of police corruption.”
When NYPD officers are accused of illegal behavior, the department itself usually investigates, then conceals its findings and imposes, at worst, a slap on the wrist, like brief paid leave. Prosecutors could separately investigate, but they have little incentive to question an officer’s story: If they know an officer is lying, they cannot legally rely on his testimony; if they remain in the dark, they can still use his perjury to clinch a conviction. Moreover, prosecutors and police work together to put defendants behind bars, developing a team mentality that prevents prosecutors from scrutinizing officers’ testimony with appropriate skepticism. As long as officers’ lies cannot be proved false, prosecutors have little reason to question their account of events. As a New York assistant district attorney told the Mollen Commission: “Taking money is considered dirty, but perjury for the sake of an arrest is accepted. It’s become more casual.”
Occasionally, the system will catch these lies. Yvette, an Egyptian American who lives in New York City, believes cross-examination of deceitful officers likely secured her acquittal. (Her name has been changed at her request to protect her from retaliation.) In 2017, Yvette witnessed three NYPD officers arresting the owner of a Brooklyn hookah lounge. As the police were detaining him, he handed Yvette his phone and asked her to call his mom. The officers promptly “attacked” her, she told me, severely damaging her knee. When she begged for an ambulance, the officers ignored her. Yvette eventually called one herself and learned at the hospital that the attack tore her ACL. When two officers visited her bedside, she asked if they were going to take her statement. They explained that they were there to arrest her for allegedly attacking the officers at the hookah lounge.
What these officers did not know was that Yvette had recently recovered from multiple surgeries on her knee, one of which resulted in a staph infection. It had been a mere two weeks since Yvette learned how to walk without a cane again. Now the NYPD was accusing her of a violent assault.
At a three-day bench trial, Yvette’s public defender, Theodore Hastings, grilled the cops about their account. Two officers claimed that Yvette had attacked them at the exact same time, a physical impossibility. A third alleged that Yvette had run about 500 feet before lunging at the officers.
Yvette herself also testified. “The judge heard my story and understood and felt my pain,” she told me. “She saw I really wasn’t lying.” The judge acquitted Yvette of all charges.
But hoping a judge will vindicate the truth is a luxury most wrongfully accused people cannot afford. Not everyone has a medical record or video footage to prove their account. If an individual goes to trial, they have a right to access the arresting officer’s record of misconduct because it could help prove their innocence. But the vast majority of criminal cases do not go to trial, and until recently, defense attorneys in New York City could not obtain officers’ disciplinary records due to a notorious shield called Section 50-A. The state repealed this law in June, and Mayor Bill de Blasio has since promised to publish an online database of police disciplinary records. With New York City’s prosecutors still fighting to conceal their do-not-call lists, it will now be left to defense attorneys, activists, and the public to track untrustworthy officers.
Across the country in San Francisco, newly elected District Attorney Chesa Boudin is taking a different approach. Boudin, a former public defender and staunch critic of mass incarceration, confronted testilying head-on. “Police are allowed to lie and get away with it over and over and over again in matters big and small,” he told me. “I can think of dozens of examples where police were either able to get away with—or faced no consequences if they were impeached and called out on their dishonesty. When you have a system of that kind of impunity, it snowballs. It teaches, encourages, and enforces bad behavior.”
Boudin has minimal control over the SFPD itself. But he has created a robust “do not call” list of officers whom his office will not call to the stand as a witness. Officers who are caught testilying go on the list, as do those who commit other forms of misconduct. Boudin has also mandated careful assessment of charges like assaulting an officer and resisting arrest. “When police use excessive force or brutalize someone,” Boudin said, “the most common outcome is that the police arrest the person and ask prosecutors to charge that person with resisting arrest or assaulting an officer.” He now requires his staff to review video footage of the incident before filing those charges. “It’s not because we think officers are lying most of the time,” he said. “We just know that, until we watch video footage, we have no ability to distinguish between a testilying police report to cover up excessive force and legitimate criminal activity of assaulting an officer.”
A third reform may have more direct practical consequences for victims of routine testilying designed to avoid the exclusionary rule. Too often, officers find a trivial reason to stop someone, or just make one up, then discover drugs or weapons in the ensuing search. The target of these pretextual stops is usually a person of color. “We know ‘driving while black’ is a reality for far too many people,” Boudin said. “If you have dark skin, you’re more likely to get pulled over, more likely to get searched, and more likely to get arrested. You’re also more likely to have force used during your arrest than if you’re white.”
To disincentivize this behavior, Boudin’s office stopped charging any contraband case that grew out of a pretextual stop. As an example, he cited searches initiated after a stop for some minor traffic offense. “Our vehicle code makes it possible for police to legally stop any car,” Boudin said. “We all know that most drivers do not come to complete stops at stop signs and most police don’t enforce that law most of the time.” If the police do pull over a driver for an incomplete stop, and the encounter results in an arrest for possession of drugs or guns, his office will not bring charges.
Ilona Solomon, a San Francisco public defender and former colleague of Boudin’s, admires his work but remains skeptical that he has the power to change the city’s broken law enforcement apparatus. “There is an entrenched culture in the DA’s office that is very resistant to reform,” Solomon told me. “Chesa can’t fix all the problems immediately, and some things he doesn’t have control over.”
Still, in his seven months on the job, Boudin has made headway in the face of sustained opposition from the SFPD. Solomon pointed to two recent cases involving the same officer, Robert Gilson. In 2017, a California judge found Gilson had “changed his testimony” regarding a search and arrest, deeming him “not reliable.” Yet prosecutors continued to call him to the stand, and judges continued to paper over his inconsistencies.
In one recent case, Gilson stopped a Samoan man who was holding a bag of marijuana, which is legal in California. After a lengthy search, the officer discovered bindles of cocaine. Gilson’s reason for the stop shifted: At the time, he said he wanted to search “bulges” in the man’s pocket; later, he testified that he sought to determine if the man was holding an illegal amount of marijuana. A judge accepted this reasoning and refused to suppress the cocaine. In another case, Gilson stopped a Black man, justifying the action because the man was jaywalking. After Gilson threatened to strip search the man, he let the officer search him, uncovering a small stash of cocaine. A judge refused to suppress the evidence, crediting Gilson’s testimony that he believed the man was concealing drugs due to his worried “demeanor” during the search.
Solomon represented both men. She told Boudin that, in both cases, Gilson had engaged in blatant racial profiling. Boudin agreed and dismissed all charges. Still, Boudin’s office could not say whether it had placed Gilson on its “do not call” list, which is not public. The SFPD confirmed Gilson was assigned to field operations but said they could not comment further on personnel matters.
Kate Levine, a Cardozo Law professor and former public defender who studies police accountability, told me she’s skeptical that patchwork solutions like a “do not call” list can ever stamp out testilying. Maryanne Kaishian, a public defender in Brooklyn, agreed, noting that it’s easy for “clean” officers to conceal the involvement of a known dirty cop by keeping his name off all paperwork. Nor do these lists remove officers’ strong incentive to lie: Police are more likely to get promoted if they effect more arrests that result in successful prosecutions. Promotions come with more prestige and a higher salary. Prosecutors still have an incentive not to question officers’ “blue lies.”
To end testilying, Levine said, “I would entirely change incentive structures.” Officers would be rewarded for reporting on their colleagues’ lies and scrutinized when their stories do not line up. They would no longer be able to coordinate their stories before testifying, a common procedure that lets them iron out potential inconsistencies. Nor could they watch bodycam footage before providing their version of events, another perk that’s not provided to civilians. Prosecutors would be rewarded for rooting out unconstitutional behavior. Officers who lie, and prosecutors who tolerate them, would be terminated immediately. In short, the system would encourage police officers and prosecutors to focus less on winning cases and more on following the rules, even when a constitutional violation stands in the way of a conviction.
What would happen if a city really tried to eliminate testilying? I posed this question to Bennett Capers, a former federal prosecutor and Fordham Law professor who studies police lies. “In all honesty, I think my initial reaction would be that the system cannot exist without it,” he told me. “It would grind to a halt.” Capers said that “run of the mill policing would have to change. We are doing about 13 million misdemeanor arrests a year. With a lot of those small crimes, there’s fudging. Nobody’s paying attention.”
Police, in other words, would have to stop arresting so many people for minor crimes. Once cities stopped deploying officers to harass misdemeanants, they could shrink their police force, reducing the number of encounters between cops and civilians. Agencies might then dedicate those resources to investigative and detective work in order to build solid cases against suspects, thereby creating a higher bar for which cases to pursue. Prosecutors would be forced to make a more careful calculation about the risk of bringing a case to trial and drop cases that rested on a search of dubious legality. In the short term, the legitimacy of the entire system might take a hit—though only because its participants confronted the illegitimate basis of so many convictions. Over time, however, the system might regain the legitimacy it lost with a preference for punishment over justice.
“We all wanted to see justice happen,” Capers recalled from his time as a prosecutor. “And law enforcement often thinks that, in the interest of justice, the rules get in the way. I’m not aware of ever saying, ‘Does this story sound quite right?’ We benefited from small lies.”
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