Scott Greenfield and “Why Judges Won’t Condemn Cops”

At bottom, I like to think this blog is about legal realism.  That’s why I want everyone who reads this damn thing to go over to Simple Justice and read Scott’s post “Judicial Incentives: Why Judges Won’t Condemn Cops.

Because I have always believed that I could handle the truth, Greenfield’s post makes yours truly very, very itchy. Maybe Col. Jessep was right, at least about me.

What do you think about the post? Let Scott or me know. And, “no” I have not conspired with Scott on this matter. I leave conspiracies to right-leaning academics and drug dealers.


PS. Scott features Professor Will Baude’s take on lying cops. Guess where brother Baude teaches? Guess who received an undergraduate degree in Mathematics with a Specialization in Economics?  The foregoing said, and as Scott makes clear, you don’t have to buy into the “law and economics” stuff to accept Scott’s point.

35 responses

  1. I think we still have that little boy or girl faith in the system and refuse to believe it when they lie, steal, or are corrupt. I have always given convicted law enforcement officers probation, only to regret it.

    Yesterday I met with our new police chief (city of 250,000) I I told him I was getting tied of not having video or audio recordings of defendants statements. I said I felt juries disbelieved the rendition by the officer (especially a narcotics officer). I added, I was not sure I was going to believe another citizen consented to the search of his vehicle unless I had a written signed consent to search (which they have). The Chief looked like I had kicked his dog. I said “Hey, the jurors expert this in this age of technology.” We will see.

  2. Scott Greenfield may remember a judge last name Douglass who sat in Brooklyn (Kings County) back in the early 90’s when I was a Legal Aid lawyer in New York City. Douglass one day wrote an opinion (published in the New York Law Journal) denying a motion to suppress and lamenting what he described as a system that required him to believe or conclude things like a disturbingly high number of defendants, who do know better, leave their bags of marijuana in plain view on the floorboard or seat next to them, notwithstanding ample opportunity to take the saving measure of shoving it out of view under the seat. I once had an experienced (shall we say) client who was so offended at the police officer’s claim that he’d left his baggie of marijuana in plain view on the floorboard that he insisted upon a suppression hearing, even though it meant a good plea offer got pulled off the table. We lost, of course, but, interestingly, the judge pressured the prosecutor to put the plea deal back on the table, which was then accepted.

    My view as a defense lawyer is that the police officer’s testimony at a suppression hearing will always, always be credited, unless there is something like videotape proving otherwise. Clients, for the most part, understand this, although I can’t say they accept it. As for the rationale for this reality, Mr. Greenfield may be correct. On the other hand, wrestling with the “why?” question is usually discomforting and unsatisfying.

  3. Dear Judge Johnson,

    Thanks very much for your thoughtful and candid comment. Only if you feel comfortable, I would be interested in knowing several things. How long have you been on the bench? What was the nature of your practice before you became a judge? How is it that you are able to maintain your healthy skepticism? Among your judicial colleagues, are you in the mainstream on this question?

    All the best.


  4. Anon.,

    I understand why you say that “wrestling with the ‘why?’ question is usually discomforting and unsatisfying.” There is very little that a defense lawyer can do.

    But, if you are a judge, answering the “why” question honestly is central to the avoidance of a true slippery slop that ultimately ends with the criminal judicial process turning into an elaborate game that is rigged against the defendant. That’s why Scott’s point is so troublesome to me personally. Why do I believe cops nearly 100% of the time?

    All the best.


  5. 17 years tomorrow (feels like 50). I did pure civil work. 50% insurance defense, 25% representing a regulated utility, and 25% election law disputes. Frankly, I am rouge. Always have been (I am a red-head). I have made a number angry by demanded the Alabama Constitution be enforced. While I might be viewed as a “hanging judge” I am actually very protective of defendant’s constitutional rights. I am also concerned the direction the nation appears to be headed and nobody much cares, wiretapping, surveillance, etc. My court, circuit, is the trial court of general jurisdiction in the State. Somewhat like the U.S, District Court. I was an ambitious politician/lawyer until I saw widespread election abuses in the 1994 election here, aided by the State judiciary. I never want to be a judge, because of the pay cut. But I knew fate had steered me here. I have accomplished a fair amount, cases are assigned by computer instead of special interest. ;I took the oath at 38 and I am 55 now.

    Feel free to ask me anything. My lawyers tell me that the Republican Party of Minnesota v. White helped restore my 1st Amendment rights.

    As all Southerner’s, I was given a nickname Rusty (which I use on the ballot) so feel free to call me that. The country folk just call me “Judge Rusty”

    B.T.W. to show the difference between a busy state court (my circuit has a population of about 450,000) I took 40 felony guilty pleas last Thursday, 14 misdemeanor, 7 probation revocations, 5 youthful offender hearings, and 3 blind sentencing. All from 10 am to 4pm. That is about every Thursday. I will try about 30-35 criminal jury trial a year (15 civil) one of which will always be capital. When I first started, lawyers were testing me, so I tried 55 felony jury trials in one year (plus the civil).

    Well, like most judges, I have gone too long. Get back to me if you are interested in anything else. I really enjoy your blog.

    My private email is:

    Rusty Johnston

  6. One final thought. The defense Bar sees me as Pro-Police (I am dealing with a judicial complaint because I refused to allow the officer to be bullied on the stand). But the one time I granted a judgment of acquittal for the defendant, the sheriff’s deputy got the victim’s family to file a judicial complaint against me claiming I was “playing on my computer” during the trial (murder) (we are paperless and I tell them) and 15 minutes late due to a TRO hearing. Just nonsense.

    My mind races ahead of my fingers so excuse the typos.

    Rusty Johnston

  7. What will be the consequences when the majority of the jury members believe that a cop matl lie when under oath and the judges do not? My guess is there will be more jury trials.

  8. I forgot to answer you question about cynicism, then re-read the Greenfield article and it hit me in the face. My quote that keeps me sane:

    “Battle not with monsters, lest ye become a monster, and if you gaze into the abyss, the abyss gazes also into you.”

    Friedrich Nietzsche; Beyond Good and Evil, Aphorism 146 (1886).

    Rusty Johnston

  9. judge (Rusty)

    Thanks so much for your detailed comments. Among many other things, I was struck by the number of criminal cases that you handle as compared to the load I handle. What’s more, the load I handle is far greater than the criminal caseload carried by most federal judges. That is, we feds (each and everyone of us) have it easy.

    The foregoing said, your ability to remain even handed but properly skeptical of cops (and witnesses more generally) under the pressure of your case load, and given your long tenure, is in unique in my opinion. As evidence, my guess is that few judges, at any level, would know of Frederick Wilhelm Nietzsche, let alone quote him.

    By the way, I like this one from good old Fred as well (and it particularly fits how I picture you):

    The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. But no price is too high to pay for the privilege of owning yourself.

    All the best.


  10. If there were no trial penalty it would not be a bad thing assuming adequate funding for the courts. However if funding stays the same it could be a bad thing. As usual it depends on the circumstances.

  11. I represent the criminally accused in Baltimore’s State and federal courts — about four bocks apart. City jurors, drawn from the City exclusively, tend to be highly skeptical of the police. Federal jurors, drawn from across most of the State, tend to be very deferential to the police. Many of my court-appointed federal clients — who have had plenty of experience “State-side” — tend to disbelieve me when I tell them that they’re in for a very different experience. Then the venire walks into the courtroom . . ..

  12. It’s not just about the trials. Jurors don’t want to sit, don’t understand the instructions and cannot consider what the sentence should be. They cannnot tell if a person is lying or not and tend to believe those who look like them or wear badges, despite instructions to the contrary. It’s not about did the accused did it or didn’t do it, most of the time. It’s about the penalties, the sentences, and the lack of a future when one tries to put a life together after doing time. It’s about judges who need to move calendars, jailers and bailiffs, court reporters and clerks who depend on a steady stream of defendants; for their livelihood, not to mention the suppliers of the food, drink and office supplies, including the phone calls. It’s about over charging by prosecutors and the favoring of clients of those who can afford counsel. But, most of all it’s the Judges who sit silently, listening to the bartering, accepting the stories for fear that they will be removed if they question, dismiss or offer justice. Break my hear, they did.

  13. A comment I made, “cops lie all the time,” was introduced as evidence at my removal hearing and served as the basis for finding me biased. I couldn’t have been the only judge who believed that, could I?

  14. Pingback: Judicial Incentives: Why Judges Won’t Condemn Cops (Update) | Simple Justice

  15. Judge, thanks for the kind words.

    It has been a tremendous struggle, but in my heart I love it. I am no angel. I have blown up at police, prosecutors and lawyers. I remember a civil forfeiture hearing when $25,000 was seized after a man stepped onto a public sidewalk with a beer (illegal). A search of his car (verbal consent) found an amount of marihuana that was 1/20 enough to make a joint. I stood up, pointed at the prosecutor (perhaps yelling) and said “judgment for the defendant, return the property. And don’t every bring a crap case to this courtroom again wasting all of our time”.

    That was 9 years ago and I haven’t tried a forfeiture since!

    And I am the most pedigreed Republican in this state. County Chairman at 26, State Vice Chairman at 31, trial counsel in Larry Roe v. Mobile County Appointing Board, et al.904 F. Supp 1315 (S.D. Ala. 1995)..First Republican judge in the history of this circuit. So I am able to get away with a lot since I am still a bit of a local hero.

    But every bad case takes a little of your soul.


  16. I work state side on criminal matters, and I’ve often wondered the same thing. It’s not just defense lawyers. I’ve seen some great cops who carefully document everything, and I’ve seen the not-so-great cops who rely on the prosecution to pick up the pieces.

    If it were my choice and I knew a cop was lying I’d tell him in no uncertain terms what I thought of the case, and would dismiss charges. But I strongly suspect that most cops wouldn’t let prosecutors know they were lying.

    I think this is a fascinating topic that makes me feel uncomfortable, but in a good way. This is the sort of question I am going to ask myself from now on when I get a case file. Thanks for sharing!

  17. Enough already with Colonel Jessep.

    What ever happened to Lonesome Dove references?

    This right field spectator is waiting for Augustus and Woodrow to get their fancy on with Latin and a pig that makes it all the way to Montana.

    I would but I won’t include a few dozen clips as I would so hate to spoil the movie for those that haven’t seen it yet.

  18. Judge:
    I respectfully take issue with Mr Greenfield’s description of Judge Rothwax. His book, “Guilty”, was arguably the best book about the criminal justice system ever written. I heartily recommend it. My recollection of the central thesis of the book was that defense attorneys have turned trials into a mockery with little regard for the proverbial search for the truth. Judge Rothwax began his career as a card carrying member of the A.C.L.U. and ended it many years later as a no nonsense, conservative judge. I can assure you that such a thing does not endear one to East Coast liberals, many of whom are overly represented among the members of the New York City defense bar.
    As for Mr. Greenfield’s assertion, police officers who may have their careers ruined because of perjurious testimony must answer for their misconduct. No judge should engage in judicial “pre-censorship” and give a second thought to not condemning a police officer who engages in such behavior.
    As for Judge Duckman, I was an attorney in New York City at the time of his removal and, for what it’s worth, I got the sense that the politicians had decided to both “pile on” and “play to the cheap seats” (just one of these could be bad for a career but both can be fatal). The result is that you likely got a raw deal and, worse, the “example” that was set may have chilled other members of the Bench.

  19. Robert,

    Thanks for writing. I have no knowledge of Judge Rothwax. I know a little about Lorin, and from what I know my guess is that he was a very good judge who was too outspoken for his own good.

    If Judge Rothwax went from a “liberal” to a “conservative” judge I fully understand how that could happen. In some ways, that is the same path I have followed.

    I intend to write more on Scott’s post. But, as commented on his site, I need a few days to collect my thoughts. So, more later.

    All the best.


  20. What makes you (nearly) unique, Judge, is that you appear to be a conservative who actually wants to conserve something. If I move to Alabama, I will vote for you — twice, if possible.

  21. I think there are two different situations: When a judge subjectively believes a police officer is probably lying but can’t prove it, and when a police officer is actually caught in a lie because there was a video or some other piece of evidence. Probably much can’t be done about the first situation, but in the second, when someone is actually caught in a lie (whether for the prosecution or the defense) I don’t understand why judges don’t simply hold the witness in contempt. Since the system depends on people telling the truth, there should be a risk of real consequences when someone is caught not doing it. If I were a judge, I would have a firm policy that any witness actually caught in a lie would be held in contempt, jailed for ten days, and heavily fined.

    I would also suggest, only half in jest, that part of the problem is that the process by which someone becomes a judge guarantees that nobody who has ever been in real trouble gets to wear a black robe. A lot of judges assume the system works because they have no personal experience to the contrary. So, while you wouldn’t want an entire bench made up of disbarred lawyers and convicted felons, maybe having an occasional one here and there wouldn’t be a bad thing.

  22. Permit me to cite my own favorite Nietzsche quote, from Thus Spake Zarathustra: “But the state lies in all the tongues of good and evil; and whatever it says it lies; and whatever it has it has stolen.”

  23. I was going to excuse the lack of substance in my last comment by pointing to my most recent post on my blog, but I see that this blog platform isn’t linking to my site from my name. Anyway, the post is about a recent decision from the supreme court of my state, Indiana, in a case originating from a neighboring county. The supreme court decided they were going to believe an officer’s testimony over a video that conflicted with his testimony. Scott Greenfield wrote about it recently too. Really puts the Chicago 5 in context. My site is

  24. Krychek_2,

    You make a very important point: “I think there are two different situations: When a judge subjectively believes a police officer is probably lying but can’t prove it, and when a police officer is actually caught in a lie because there was a video or some other piece of evidence.”

    In the second situation, I would make every effort to see that the cop was fired and prosecuted federally for perjury. Holding him in a contempt would not be severe enough. I would, so they say, raise holy hell.

    Thanks for making the distinction. All the best.


  25. Robert,

    Thanks for your fascinating comment. I very much appreciate hearing the background. And, by the way, I heartily agree with you that judges should condemn in no uncertain terms cops who lie.

    All the best.


  26. I think more jury trials would be a good thing. However, the court system railroad may not. We’ve already lost the right to a jury trial on any offense where the sentence is six months imprisonment or less, Clog the courts with more trials and we may see that (despite Constitutional limits) become all misdemeanors.

  27. If I may interject a personal opinion: I believe every sitting judge, regardless of rank or station, should be required to watch Breaker Morant at least once a year. The reason should be obvious to anyone who knows of the events on which the film is based.

  28. Judge, you believe officers because when you started your career, officers rarely lied or played word games to win. I remember numerous times when an officer would testify to events on the stand that the officer knew was in the defendant’s favor, merely because it was the truth. That has changed.

    The mindset has changed, and not for the better. Officers are convinced that they are in a war (actually, two wars, on drugs and terror) and that they must stand in between the “enemy” and society. PoliceOne has numerous articles about maintaining the “warrior” ethic. Small agencies are obtaining armored vehicles. There have been more SWAT raids than are necessary, because the agencies have the tools available and the judiciary (generally) won’t establish limits on their use.

    This mindset cuts across to the officer’s testimony. Coming from inside, I can tell you that I would not give an officer’s testimony any more credibility than that of an average citizen, and would be even more cautious since officer’s are trained how to testify.

    Your Col. Jessep reference was more on point than you may have realized. We have a chance to correct it though as long as jurists are willing to ask themselves the tough questions as you have.

    Please excuse my rant, and I love your blawg.


  29. ECLS,

    You did not rant. I am very interested in your perspective. Your point about the warrior mentality strikes me as a good way to look at credibility of an officer’s testimony. Thank you for providing your point of view. I found it very valuable, and helpful to me personally.

    All the best.


  30. RGK: “In the second situation, I would make every effort to see that the cop was fired and prosecuted federally for perjury.

    Whereas fellow judges always get a pass.

  31. Pingback: 5 Cops Caught Lying On The Stand When Defense Produces Recording Contradicting Their Testimony

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