the Real Maverick: ORAM for Congress

When Police Make Mistakes, They Lie.  Prosecutor and Courts, Meh. Part 1

Freddie Gray suffered a spinal injury in police custody and later died.  So what happened?  Don’t expect the police to tell you what really happened.  In my experience, when the police make a mistake, they lie to cover it up.  Prosecutors and courts know this and generally do nothing.  Which only encourages more lying.

The most stunning example is a drug case I was appointed on in August 2005, the local public defender’s office represented a co-defendant. My defendant had almost no criminal history but the judge in the case was known to sentence harshly in drug cases.  As is standard in Florida, I filed a Notice of Discovery.  The response included the names of the State’s witnesses, police officers and evidence custodians, and a plea offer of 5 years probation (in practice just a delayed jail sentence) and a two year driver’s licenses revocation.  It seemed to me that this case was just the beginning for this young man.

Under Florida law, deposition are allowed in felony case, and during the depositions I learned that the officers conducted the search pursuant to a warrant. I was surprised because surprisingly the Fourth Amendment is more the exception than the rule in drug cases. Also, the State’s discovery response did not include the warrant.  I got a copy of the warrant.  

[Section removed] . . .

The warrant did not include the police office’s affidavit of probable cause.  The State refused to provide a copy because the investigation included a “Reliable Confidential Informant.”  So I filed a motion to get a copy of the affidavit.  

After I tried to set the motion for a hearing, I got a call from the Assistant State Attorney handling the case and was told that my client needs to cooperate “or else.” Without a hearing, the Judge signed the motion ordering the State to produce the officer’s affidavit.

Next, the officer who got the search warrant called wanting to speak the defendant.  Then a DEA agent called saying the defendant was the subject of a federal investigation, he  “might be indicated in federal court”, and I should call an assistant U.S. attorney to confirm.  After playing phone tag, I spoke with an assistant U.S. attorney, who confirmed because the defendant was not yet indicted, he was not entitled to a federal public defender or written plea and cooperation agreement.  

During this time, about a month, I was still waiting for the officer’s affidavit. With a court date approaching, I filed a motion for a continuance, citing the State’s delay in providing the affidavit.  Three days later, I received a copy of the affidavit.  It was not signed by the officer.  

Florida law, Section 933.06, Florida Statutes, provides: “No warrant shall be issued for the search of any private dwelling under any of the conditions hereinabove mentioned except on sworn proof by affidavit of some creditable witness that he or she has reason to believe that one of said conditions exists, which affidavit shall set forth the facts on which such reason for belief is based..” So I filed a motion to suppress the evidence, because “failure of affiant to sign the affidavit for search warrant invalidated the warrant.” Two days later I had a hearing scheduled.

[Section removed] . . .

A week before the first hearing on the motion to suppress, the public defendant’s client joined the motion. I received amended discovery with a copy of a second search warrant affidavit.  This copy signed by officer included the following explanation: “[The officer] has informed the undersigned [referring to the assistant state attorney] that as per his training he kept a signed original copy of the search warrant and affidavit for his case file, and filed a second original copy of each with the Clerk of Court; the photocopy included with this amended discovery is a photocopy of the original signed search warrant affidavit provided to the State from [the officer’s] case file.”

A review of the Clerk of Circuit Court’s case file found no search warrant and/or affidavit.  Further, a review of the Clerk’s search warrant log found no return of said warrant and/or affidavit, as required by Florida law,  Sections 933.05 and 933.12, Fla. Stat.  Furthermore, the unsigned and signed affidavits appear to be the same document, with the exception of the officer’s signature, the [warrant signing] Judge’s signature was in precisely the same location on the signature line of both warrants.  The hearing was continued and I filed a motion to compel the productions of all signed ‘original’ search warrants and search warrant affidavits.  I also filed a motion for “an order appointing [a] documents expert to assist Defendant to determine the authenticity of certain State documents.”  And I amended the motion to suppress, adding the fact that the search warrant and/or affidavit were never returned to the clerk.  

A week later, in late December, the second hearing on the motion to suppress was continued again until February 2006, and the Judge ordered the State to produce all originals.  

The State never produced any originals.  Twelve days before the February hearing, a different assistant state attorney, the third assigned to the case, filed a Nolle Proseqi (more Latin, meaning “unwilling to pursue.”) The reason, “law enforcement has advised that defendant will be handled in federal court.”

To the best of my knowledge, no federal case was filed, and the defendant has had no further trouble locally (but I think he moved since the police were no doubt angry at him).  I waited several years, and in February 2008, I called the Florida Department of Law Enforcement to request an investigation into the forged court documents.  I was shuttled from the office of the Director of Criminal Justice Professional, to a case officer, to Executive Investigations, then to the legal department.  Their answer, sorry, ‘there is nothing we can do.’

The lesson I learned, when the police make a mistake, they lie to cover it up.  Prosecutors and courts know this and generally do nothing.  Which only encourages more lying.

So, good luck to the president in changing police-community conflict, from my experience he won’t get much help from prosecutors.

P.S.

Police will even lie about whether it was raining during a traffic stop, but that is Part 2.

By the way, the defendant was black, and the officer was white.