I told Scott H. Greenfield at Simple Justice that I would answer the question posed in the title. And so I shall.
The following is not intended as an excuse. Indeed, it may be viewed as an indictment. With the foregoing keenly in mind, and in no particular order, here are some of my thoughts on why I have tended to believe cops most of the time.
- I am a shitty judge of credibility. Truly, I am. See here for what happened when I believed a defendant and it blew up in my face with an editorial cartoon and the whole nine yards. Thus, when forced to judge between a cop and a defendant it is safer to believe the cop than the defendant particularly if a judge cares about his or her reputation. While pleading the subconscious in mitigation, there was a period of time when I really thought I might make it to the Circuit if I were a good little boy. See what happened to Judge Baer when he “screwed” up.
- As an empirical matter, the vast majority of defendants are guilty. Therefore most defendants arguably have a more intense incentive to lie compared to the incentive of a cop. This is particularly true when it is doubtful (save for the instant case where the cops were caught on video) that the real “truth” will ever come out. Both the defendant and the cop know that there is little likelihood that their testimony will ultimately be proven true or false. Prison for the defendant is far worse than dishonor for the cop. Ergo, most defendants lie more frequently than most cops.
- I have very seldom been faced with a situation where the defendant testifies and so does the cop. In suppression hearings, for example, defense lawyers keep their clients off the stand in most cases. Consequently, credibility testing on a one-sided record lacks the data necessary to make an informed credibility determination.
- Cops are frequently armed with credibility enhancers like written consent forms, in-car or on-uniform cameras or audio receivers, drug dogs, damning Miranda interview statements buttressed by written advisement forms and more than one cop saying the same thing.
- The cops I tend to see in federal court are very experienced and most often extremely well-trained. For example, a state trooper making an interdiction stop of a car with 20 kilos of cocaine in a secret compartment will almost always be an expert at making the stop and subsequent consent search bullet proof.
- I was a magistrate judge for about five and half years. Making good credibility determinations when cops are involved requires practice. In the District of Nebraska, we use magistrate judges to handle all pretrial criminal motions. The district judges review those rulings on the record made before the magistrate judge. Whatever talents I had as a magistrate judge in 1992 to judge credibility of cops has deteriorated over the ensuing two decades. Frankly, this had made me cautious.
- While I have never personally taken the MMPI (Minnesota Multiphasic Personality Inventory), I would guess that I would score high for respect for rules (authoritarianism). Put more simply, my personality, formed as white middle class child, strongly incorporates a positive but stereotypical view that we need rules and cops follow them. Even more simply, I believed the Dick and Jane books.
- I used to represent county sheriffs in federal civil rights actions when they were sued in their individual capacities. While I also had my fair share of criminal cases, my county sheriff clients were far more honest than my clients who were defendants in criminal cases. Experiences like that are hard to erase when one looks at the world.
- While I do not think of myself as “pro prosecution,” I deeply fear for our society because of the many predators I see on a daily basis. I suppose that if I am going to err, I err on the side of what I see as order.
Can I still function as a decent federal judge in a criminal case where a cop’s credibility is at issue? My answer is yes.
I am aware of my inclinations (implicit bias if you like) and I have done, and will continue to do, my level best to hold these impulses in check. That is not a perfect answer, but it is the best I can do with what little I have.*
*For what it is worth, in 1984 and as an active Republican (serving as county chairman), I prosecuted Nebraska’s Republican Attorney General in an impeachment proceeding before the Nebraska Supreme Court. Here’s a New York Times article on that affair. I add this to illustrate that I have not been hesitant to take a swing at high-ranking law enforcement officers even though the personal consequences of doing so were not pleasant.