The Pull and Tug Between Prosecutor and Cop — The Way It Should Be

Today I will write about police departments in general.  The FBI, the Massachusetts State Police or your local police.  They are not different when it comes to protecting their own.    There’s a good book out which tells about this.  It’s called The Fence.  It’s about the Boston Police Department.  Within any police unit there’s a lot of bickering but if someone outside dares say something uncomplimentary toward it, then that person becomes marked as an enemy, even if the people on the job agree with him.

I had the experience once with the state police when I complained to the colonel about the actions of a sergeant at the Foxboro barracks that I believed went beyond the pale.  The colonel launched an investigation.  A captain from somewhere came to interview me.  He spent about a half an hour listening to my version of the events.  I heard nothing back but after a while but heard the investigation had been closed and a report filed.  I had a chance to see the report.   It pretty much concluded I had lied about what happened and that I might have some mental deficiencies.

Nothing involved anything criminal so I let it go.  I should have known better than to think something would come of my complaint.  That, by the way, was the only time I did complain, and as you may guess, I would not complain again for obvious reasons.

Many of the cops looked upon ADAs as an obstruction and interference to the way they thought things should be done.  They want ADAs to just take their cases and prosecute them, no questions asked.  In fact, they’d prefer that people from their own departments prosecute the cases rather than an outsider, which the ADA was always considered to be.  That was the way it was once done.

They are right in their appraisal that the ADAs are a hurdle that they have to pass over before their case can be prosecuted.  That’s how the system is supposed to work.  I met with every ADA we hired and gave them a little introductory talk.  One thing I told all of them is that we are not cops.  Our jobs are different.  The cop has the hard job of being on the street and encountering the daily wash and flow of the citizenry.  She has to make immediate decisions under immense pressure and sometime she might run into a person who is extra belligerent, or goes through a harrowing experience, or runs into the same person again and again.  Sometimes the cop jacks up the charges, sometimes the wrong person is grabbed, sometimes the way in which the evidence was gained was not right, or sometimes the person should not be charged at all.  I’d tell the ADAs we want our cops to be aggressive but that is not the job of an ADA.

An ADA has to take the evidence the cop gathers, analyze it, and make a decision on the best way to prosecute it, if she decides to prosecute it at all.   ADAs work in a less threatening environment where they have the time to analyze cases.  If they act as rubber stamps for cops, they are not doing their jobs.  The cops job is to gather the evidence; our job was to analyze it and present it in the proper manner.

I recall one occasion I had a district court assistant district attorney (ADA) call me.  He was in the middle of a state police case where the trooper’s evidence against the defendant came from a tape recording the trooper had secreted in his cruiser on which he secretly recorded the defendant’s conversation with another person.  The ADA wanted to know how to put it in evidence.  I told him he couldn’t because it violated chapter 272, section 99 which prohibits secret recordings without a court warrant.  It was all the evidence we had that the defendant committed the crime so the case had to be dismissed.

The ADA told the trooper.  He became quite upset.  He said to the ADA, “I should have listened to what they told me at the Academy.”  Hearing that I thought he had been told that he couldn’t secretly record people.  But that’s not what he meant.  He went on to say, “They taught us not to tell the ADAs how we got our evidence.”

These point out the big problems with all police departments — they are insular,  suspicious and protective of themselves from outsider.  Prosecutors are very much considered outsiders, which I think they should be.  They are on the same team but have a different function.

The walls would break down when you worked closely with some of the investigating officers over a period of time.  The state police officers assigned to our office worked hand-in-hand with us every day.  The decisions were often made after discussions in the quiet of our offices.  We would discuss what we knew and what we thought we could learn by taking this or that step.  The same would happen when I worked closely with one of the various task forces I interacted with.

Working with the state police in the office and working with the uniform troopers was like night and day.  I’d notice this when I’d go with the state police from my office on searches or to crime scenes.  The guys from the office knew why I was there.  I’d know enough to stand out of their way.  But I had a function to make sure that if any searches were to be done in other places or even if the time at the crime scene was to be extended, I’d insure the legal sufficiency of the paper work to do the next step.  The guys in uniform looked at me suspiciously as if I was intruding on their turf, it was a state police investigation and I was an outsider.

My observations of the federal system are that the cops have too much influence.  Gerry O’Sullivan the head of the federal Strike Force told how he was afraid to go against the FBI. On the state system it may be the same thing now, because I know in my time it was a constant battle to ensure the ADAs didn’t succumb to the pressure from the cops.  What is happening now will depend on the DA as to how much he backing the ADAs get and how much discretion they  have.  Some DAs don’t want to make waves and they defer to the cops like some U.S. attorneys, but that’s not how the system is supposed to work.

 

9 thoughts on “The Pull and Tug Between Prosecutor and Cop — The Way It Should Be

  1. You might enjoy some of Adlow’s other books. I recently read his autobiography “Threshold of Justice” which had a lot of interesting political history. He wrote a police training manual,”Policemen and People” – just reprinted. I have that on order along with “Napoleon in Italy.”

    1. I plan to read them. My father used to hold a popular police class for young men who wanted to join the Boston police force. He also held one for the cops who wanted to become sergeants. That would make me interested in the manual. I’m just struck by how succinctly Adlow summed up the purpose of society which is to allow people to live the life they want in peace and quiet.
      I grew up in the city and moved at some point to the burbs where I raised my kids. As a prosecutor I mostly concerned myself with the more serious felonies. One day I was talking to a guy from Savin Hill Danny Ryan a court officer who I ran into outside the State House. I suggested to him that the crime of disorderly conduct should probably be decriminalized. He looked at me astonished. He then gave me an earful how I forgot how it was like to live in the city and how one disorderly person could disrupt a whole neighborhood. He piled on a few examples for me. When I read what Adlow said about the need for a peaceful environment I remembered my conversation with Danny. Adlow was a city judge. I will read more of what he wrote. I appreciate your suggestions.
      By the way, I wrote about how Adlow shut down a movie that he thought was obscene. I found this 1945 article about him that shows he also had another side to him.
      “Into the Boston courtroom of Harvard-trained Municipal Judge Elijah Adlow, 48, marched the watchdogs of the New England Watch & Ward Society, eager to score their fourth book-banning in a year.* They marched out again, having suffered one of the worst defeats in 66 years of protecting Boston from naughty thoughts.

      Judge Adlow refused to agree that Erskine Caldwell’s novel Tragic Ground was an obscene book and dismissed charges against the bookstore clerk who sold it. He went further. He found nothing shocking in a scene in which a female character is allowed to see a man stripped to the…

      Read more: http://www.time.com/time/magazine/article/0,9171,775280,00.html#ixzz25nXnc6Ae

  2. I can well remember the late Boston Municipal Court judge Elijah Adlow telling cops on that stand that they might want to re-think their recollections of an incident. Adlow had a very honed sense of who was lying, miscreant or cop. But that ability is acquired only after many years on the bench.

    1. Adlow was a rare judge. I appeared before him only one or two times. He knew how to cut right to the core of the matter and move things along. You have a good memory. Aside from the experience, Adlow had the ability to understand that he wasn’t a rubber stamp for the cops but could get his point across without alienating the cops. A subtle suggestion like you mentioned was enough to tell the cop he wasn’t being fooled. He was also smart and fair and in charge. I remembered that he had written a book. I Googled him. I remembered the book the Genius of Lemuel Shaw. I see that he had written more than one.
      I also found that he had ruled in 1969 that he found the movie, “The Killing of Sister George” obscene. A reviewer for the NY Times said: ““It is the longest most unerotic, cash-conscious scene between a person and a breast there has ever been on screen, and outside a surgeon’s office.” Adlow said about it: “”filth is not an indispensable item in the narrative of life. This would be a great world if people would only observe certain amenities…Those hippies, or hoppies, or whatever, miss the whole point of culture––to give everyone peace, quiet, and the right to enjoy life.”
      That pretty much set out his philosophy as a city judge that even in the inner city there’s a need for peace, quiet and the right to enjoy life. A wise man. We won’t see his like again.

  3. Good response. I appreciate the honesty and yes Norfolk always had a positive reputation for doing things right. Unfortunately, as you know, that wasn’t and isn’t the case statewide. We are all human and make mistakes but the cops and prosecutors are SUPPOSED to be a higher level. Their honesty is integral to the system but unfortunately isn’t always there for whatever reasons be it desire to win, desire to punish someone who may have gotten away with earlier crimes, ego or purely political reasons. Whatever the motivation its wrong and it weakens the system and the publics trust. All unfortunate but true.

    1. I agree with you. As prosecutors we had great powers and we were supposed to follow a higher standard. We represented all the people of the Commonwealth — those are the people in whose name we bring the charges. That, by the way, includes the defendant.
      Last night I was thinking of a case I had that involved the Boston police. There was this guy who had slashed three women in the face in Milton. He had been described as a light skinned black with pock marked face and about five foot ten inches tall. One snowy night the DA called me and told me to go to the Dorchester police station. The Boston police had arrested the suspect. I made my way to the station. I asked to see the prisoner. I went down stairs to the lock up. In the cell I saw an Asian male, about five foot tall with clear skin. He looked nothing like the person we had described. I said let him go. You would not believe the bullshit I got from the arresting cops and some others in the station. I remember one of them yelling at me something to the effect that when a person is stabbed they always think the assailant is taller than he is. The tragedy of that night was the cops had no reason to believe the guy they arrested had anything to do with the crime but because they had arrested him they were then coming up with reasons to justify their actions. They did let him go but I’m sure if they could they would have locked me up. It was unreal. That would never have happened in Norfolk County.

    2. One other part of the description I recall was the guy with the knife had curly hair. The Asian guy had the straightest hair possible.

  4. Just a question, not attacking you personally but how do explain it when prosecutors know a cop is lying on the stand or introducing false evidence which seems to be a common problem in MA. and I’m sure elswhere. I’m sure you know Suffolk County has one of the highestfalse conviction rates in the country Just behind Cook County (Chicago). Between perjured testimony and made up evidence like the scandal in the Boston PD ID unit years ago and what may be going on now with the state crime lab today its difficult to have faith in the system. I agree prosecutors should maintain a balance between police interests and constitutional rights but it appears many prosecutors, state and federal, just go along with the police even when they are wrong. Are the prosecutors being conned by the police or are they in on it just to win cases. Again I’m not speaking of you personally everything I have heard about your government career has been positive just curious what your opinion is on the subject.

    1. That’s a good question. I can speak for myself and say I would not prosecute a case if I had an inkling I was putting in any false evidence. I’m quite sure the same applied to all of our superior court ADAs and I hope it was the same in the district court. For one thing, every ADA was responsible for his or her case once it was assigned. We kept no records of wins or losses. At superior court level, the ADA would put the case in the grand jury and then indict. Sometimes if there was doubt about it, it would be washed out at the grand jury. We had for the most part skilled senior prosecutors who worked hard on their cases and liked to win but never to the point of condoning any false evidence. Everyone of us could utilize a nolle pross without running it by anyone else. We all had the freedom to decide the charges and to set the penalty. I think the statistics would bear me out that no case we handled resulted in a false conviction. We produced more judges from our office than all the other DA offices. All of them were well respected. We were professionals looking to do a professional job with a pride in our office’s reputation. The idea of cheating or doing something wrong just was not there.
      I know other offices ran differently. Some kept score of wins and losses and jobs depended on scores. Some gave little discretion to their prosecutors. Some had people trying to make a mark. Some kept the hours their prosecutors worked. We had none of that. I can see Suffolk with the pressure from a big police department like Boston might do things differently but if it has such a bad record as you point out that is not good. I don’t understand why a cop would lie but I’m sure they do. It’s so bad because if you get the wrong person that means the criminal is still on the street. I really believed that it was better to let 100 guilty parties go rather than convict an innocent person. I’d hate to be grabbed an accused of something I didn’t do and end up in jail. I knew everyone else felt like I did. The cops I worked closely with in the state police, Quincy and other local departments had the same belief. We did things right and as a result I don’t think we ever had a search that I was involved in ruled illegal nor did I ever have a cop injured. The bottom line is I’m sure there are guys and gals out there who are not doing it right for whatever reason but there’s no excuse for doing it. I think the results of doing it right is shown by the ability of our ADAs to go on to judge positions and other jobs of responsibility without fear of something coming back to bite them and that I heard the judges say that our office was the best in the state. When judges say that they know you’re on the level.

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