Small Law Firms

Lawyer's Cross-X Of Police And Trying To Understand The Unimaginable

When the police think you're a scumbag.

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Cartoon PolicemanIt has become abundantly clear that people of color, particularly black people, are treated differently — often toward a deadly end — by police. What is new is not the fact of different/deadly treatment. What is new is that it is increasingly caught on camera. I am not best — or even adequately –equipped to write in a manner that effectively captures or substantively adds to this conversation. As we have established, I am a Small Town Lawyer. I am substantially more likely to be a white, heterosexual, privileged man.[1] My contribution to the conversation will be trite, it will be uninformed, and it will under-articulate the horror that befalls those who know by the mere situation of their skin color they are more likely to be executed by the police than I.

As a white man, my experiences with the police are relatively limited. The bulk of my post law school experience comes in cross-examining them.[2] Like assessments of people of color, assessments of the police do a disservice when they attempt to universalize. The vast majority of police are thoughtful, caring and well-motivated people. Some are not. Even with these simplistic good/bad delineations there is limited utility in trying to sort police officers or people generally into these categories. As their placement is forever contingent on a multiplicity of factors that are infinitely variable. So I’ll eschew the urge to categorize an officer I cross-examined during an administrative license suspension hearing and just tell the story.[3]

The discovery provided prior to the hearing showed that the officer had performed 5 roadside sobriety tests: the three NHTSA approved tests, and two un-scientific just-for-shits-and-giggles tests. One was the bogus 1-2-3-4, 4-3-2-1 test in which you touch each finger to your thumb counting up and then down as you touch each finger again. I tend to perform this one around the end of the second football game on Thanksgiving evening to prove to myself another beer is not an awful idea. I always win.[4] The other was the infamous alphabet backwards test. The discovery provided included something similar to this note:

Driver did not correctly count down from Z.  I directed her to give the alphabet from Y to Q.  She stated “Y-X-W-U-T-S-R-Q.”  I informed her that she had skipped two letters of the alphabet.  She denied this.  We moved on to the Horizontal Gaze and Nystagmus test.

A portion of my cross went like this:

Me:  You put care into the preparation of your reports?

Officer:  Of course.

Me:  And your reports are important to you because they can impact the individuals whom you have pulled over?

Officer: Yes.

Me:  It’s also your job, and you want do your job well.

Officer:  Yes.

Me:  In this instance, you performed several field sobriety tests?

Officer:  Yes.

Me:  One of these is that you had my client perform the alphabet backwards from Y to Q, Correct?

Officer:  Yes.

Me:  And you say she failed that test?

Officer:  Yes.

Me:  And the reason you say she failed that test is that she didn’t provide the proper letters in the proper sequence?

Officer:  Yes.

Me:  And to you, the failure to put letters in the proper sequence, and to know where and when they belong is a sign that someone is impaired?

Officer:  Yes, it’s a clue they are impaired.

Me:  So if someone fails to identify whether and when a letter fits into the sequence of the alphabet it’s a clue they are impaired.

Officer:  Yes, that’s what I just said.

Me:  And your report here reflects that she improperly performed the test because she missed two letters.

Officer:  [reading report, as is unfortunately permitted at these hearings] Yes, that’s what it says.

Me:  You aren’t impaired right now, right?

Officer:  [Pissed off laugh] Excuse me!?

Me:  You aren’t impaired right now?

Officer:  Of course not!

Me:  Right, because this is your job, and it’s important to you that you not make mistakes, correct?

Officer:  Yes.

Me:  And it’s also fair to assume that you were not impaired when you prepared your report?

Officer:  [looking at hearing officer who also happens to be giving me an angry stare] Of course not.

Me:  What two letters did she miss?

Officer:  [again, looking at report]  V… and… [long pause] and… [even more lengthy uncomfortable pause during which he became red with a strange mix of anger and embarrassment] Just V.

My cross went on for a while longer. I eventually lost the hearing, but created excellent fodder for a plea deal in the criminal case and for a potential trial in the event one was necessary (it wasn’t).

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Self-satisfied I walked to my car. The Officer caught up with me. He asked stated, “That was total bullshit, how can you do that to me? This is my livelihood, this is my job!” I replied “And I was just doing mine.” He mumbled something to the effect of “Your job, being a scumbag. I’ll be watching you!” I haven’t seen him. But I fear someday I’ll roll through a stop sign and see him again. I can only imagine what it must be like to have that fear multiplied by 10,000 but of no particular individual, rather of an entire structured armed powerful institution that is unconsciously and in a few instances consciously biased against you, and not because you’re a smartass “doing your job,” but because your skin is darker.

Unimaginable.

[1] Actually, were I a Big Town/Biglaw Lawyer this would be even more likely.

[2] I have also directly examined them. I have enjoyed those experiences much more.

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[3] These are precursors to DUI/DWI criminal cases. The standard for suspension is very low (probable cause), but they act as a good opportunity to create an early and useful record for the criminal matter through an opportunity to cross-examine the arresting officer.

[4] Which should provide substantial scientific proof that this test is ineffective.

Atticus T. Lynch, Esq. is an attorney in Any Town, Any State, U.S.A. He did not attend a top ten law school. He’s a litigator who’d like to focus on Employment and Municipal Litigation, but the vicissitudes of business cause him to “focus” on anything that comes in the door. He can be reached at atticustlynch@gmail.com or on Twitter

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