Crime, Police, Videos

Criminally Yours: Videotaping Crime Is Not Enough

In our system of checks and balances, the prosecutors are the first line of defense for all of our rights. This is why they need more more healthy skepticism toward the police officers they work with.

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My guess is that if someone had not videotaped the recent events in South Carolina when Officer Michael Slager shot Walter Scott in the back without provocation or justification, Officer Slager would not now be charged with murder.

Why? Apart from the racial issues involved in the case, the criminal justice system is set up for prosecutors to believe cops, not prosecute them.

There’s a myriad of reasons. Cops and prosecutors need each other. There wouldn’t be one without the other. Police are the enforcement arm of the prosecutor’s office, and prosecutors can’t bring a case without police. The cost of angering a cop by being too critical is losing his cooperation in innumerable ways. The cop could call in sick when you need him to testify, “lose” evidence, not return your phone calls, or forget whole chunks of testimony.

Yes, cops can be subpoenaed to court if they are really dodging a prosecutor, but in the long run that will only create more bad blood, and bad blood brings retaliation, potentially from the entire command. (Try snitching on a waiter for bringing you the wrong order and see what he adds to your soup next time you eat there.)

While prosecutors can sometimes be objective (although, in my experience, that’s rare in at least the state level), being objective is a far cry from being actually critical of police. They seldom view each other with skepticism because it’s in neither’s interest. Especially for prosecutors. In reality, they need the cops more than the cops need them. Every case involves an arrest, so even for that most basic step in the development of a case, the cop is key, both to make the arrest and then to testify as to how it happened. Cops often see the prosecutors as a thorn in their side, bugging them to come to court, turn over their paperwork, dot their Is and cross their Ts.

Thus only a rare prosecutor will challenge a cop on anything unless the proof is overwhelming.

That’s where videos come in. Because a prosecutor is unlikely to take the word of a perp over that of a cop, any video corroboration makes the perp’s version that much harder to ignore.

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So why are videos few and far between? Since everyone carries a smartphone these days, one might think that any time a street arrest is made, someone would be on the street filming it. Maybe that does happen, but sometimes the videos never surface.

Many of my clients have dared to videotape a friend’s arrest only to find themselves arrested, too, for obstruction of justice or disorderly conduct. The phone is then seized by police and not returned for weeks or months, if at all. In some cases the phone is “lost,” or damaged, and the video never retrieved.

Police themselves are averse to wearing cameras, and why shouldn’t they be? How would you like to wear a camera at every step of your job memorializing where you went, what you said, and how you said it? No professional likes being under that type of scrutiny. It also might be impractical. Based on what I’ve seen of the state of existing NYPD equipment, it’s never the best quality — it often malfunctions, is “unavailable,” or the the cop might forget in the heat of an arrest to turn it on. Only if strict sanctions were in place for police failure to use their video cams would such a program have a chance of making a difference.

A more practical approach would be to encourage prosecutors, especially ones new to their job, to have a healthy skepticism toward the officers they work with, in spite of the conflict of interest. Such skepticism comes naturally to every defense attorney, but is a learned skill for prosecutors.

Maybe they just can’t conceive cops would outright lie; maybe they are friends with or married to people in the ranks. Maybe they’re just afraid of rocking the boat. Whatever the reason, this reluctance by prosecutors to challenge police (and I mean really challenge them, not just half-hearted stuff), leads to a lot of unchecked power with people arrested presumed to be guilty rather than innocent, and defendants rarely, if ever, believed if contradicted by a cop.

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In our system of checks and balances, the prosecutors are the first line of defense for all of our rights. I’ve never been a prosecutor and can only imagine the nuances of their rapport with police. But more healthy skepticism should be encouraged so that even when there is no video, what police say will not automatically be credited.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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