Police

Philly Police Union Sues Over Attempts to Keep Bad Cops Off the Stand

They say it's about due process. Is it really about all that sweet overtime money?

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Philadelphia police
Joe Sohm / Dreamstime.com

Do police officers have a right to testify about their investigations in criminal court cases? That weird idea seems to serve as the foundation of a lawsuit by Philadelphia's police union against the city's mayor, police commissioner, and district attorney.

Philadelphia's Fraternal Order of Police Lodge 5 is suing because District Attorney Larry Krasner has a list of cops with bad records, and his office uses this list to determine whether those cops can be called to the stand to testify in cases.

The reason for the database's existence is eminently logical—if prosecutors use testimony from police officers with a documented history of misconduct, the defense can then bring that up and use it to cast doubt on an officer's integrity and testimony and seed doubt in the jurors' minds. In short: Part of the purpose of the list is to keep cops off the stand that could potentially wreck the prosecution's case and also to alert prosecutors in advance about these potential problems.

But the police union doesn't see it that way. They are filing suit because there's no due process system where the police officers involved can challenge being put in the database in the first place. As a result, this impacts their jobs and they have no recourse in the matter. The lawsuit argues, "For such police officers, critical parts of the work performed by police officers are restricted, resulting in the lost wages, damage to reputation and professional harm to those police officers."

This lawsuit may seem baffling at first. Why would the police union demand that officers have some sort of "right" to testify in criminal cases if their testimony actually has the possibility of backfiring and clearing the defendant? Why is the police union trying to screw up these cases?

The Philadelphia Inquirer provides the most logical explanation: It's the money. In just seven months in 2018, Philadelphia police officers earned a whopping $12 million in overtime at the courthouse testifying in cases.

Philadelphia's police union isn't alone in this latest pursuit. The Inquirer notes that the union for Pennsylvania state troopers is suing the district attorney's office in Chester County for the same reason. That district attorney, Thomas Hogan, responded that it's within his own discretion to maintain such a list.

On the other side of the country, in Los Angeles, the union representing sheriff's deputies took it a step further and used the courts to stop Los Angeles County Sheriff's Department leaders from even passing the names of deputies and detectives with misconduct records along to prosecutors. Fortunately, California has changed its laws and opened up disciplinary records in cases where officers have gotten into trouble for lying, so it's going to be harder to keep that information under wraps.

It's worth noting here that there are only 66 officers on this list being kept by Krasner in Philadelphia (though he is actively looking for more who need to be added), and of them, he'd still allow 37 to testify, but prosecutors had to inform defense attorneys about their past. Philadelphia's police union represents 6,500 officers. If anything, Krasner's tiny list actually supports the union's claim that it's just a handful of "bad apples" in law enforcement who are the problem. And yet the union is still suing the city for trying to keep these apples from "spoiling" their court cases.

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  1. If they have a documented history of misconduct and lying, shouldn’t they be banned from testifying because their misconduct got their lying asses fired?

    Yeah, yeah, yeah…

    1. Came to the comments to make basically this exact point. Giving testimony is part of the cops job, and if they’re so unreliable that their testimony could tank the prosecutors case…well shouldn’t they be fired since they can no longer do the job they were hired to do?

  2. Here’s a novel idea, D.A. Krasner. How about you use that list to put them on the stand as defendants?

    1. Krasner is doing a great job. Don’t let the perfect be the enemy of the good. Also my experience from the business side of the criminal justice system is that cops are well trained and professional and just doing their job, and now is not the time to start a war on them.

      1. That article has nothing to do with what’s being discussed here. Nor are we talking about cops that are “well trained and professional”, if Krasner is keeping a file on them.

        1. I can’t tell if you’re completely ignorant or just trolling. There is no due process for being put on the list. Did you read the article? And my comment was not a response to the article (do you need to learn how comment threading works?), it was a response to yours, which chided Krasner for not doing enough. He’s actually way ahead of you.

          1. Wow. One whole prosecution.

          2. I am a little curious what the criteria for being included on the list actually are since that could be pretty important when considering due process. If there is, for example, no appeal process to being included on the list it seems that the officers might have a point even if their reasons for bringing it up are suspect.

            1. I’m pretty sure the criteria for being included on the list are defined by Brady v. Maryland, 373 U.S. 83 (1963).

          3. There is no due process for being put on the list. Did you read the article?

            Yes, but I also read the 5th and 14th Amendments which assure that no person will be
            be deprived of life, liberty, or property, without due process of law,” not “deprived of the the right to testify in court as a witness for the prosecution.”

      2. Most cops, yeah. OTOH the systems currently in place – and the Unions play a VERY prominent role in this – mean that there are very seldom any seriously unpleasant consequences for being a bad cop, and LOTS of unpleasant consequences for failing to support a bad cop. That needs to change. Fast.

  3. The homily is “One bad apple spoils the whole barrel”. But I don’t expect a union to realize what they’re really saying.

  4. Sometimes due process can be very lucrative. Also, Filthacrapia juries should just assume the cops testifying are lying a-holes.

  5. If they can’t be trusted to testify, why should they be trusted to hold other police powers? Fire their asses

    1. Firing them usually involves fighting with their Union, which lazy politicians have given the means to make life absolutely miserable for anyone trying to terminate a cop for cause,

  6. So “prosecutorial discretion” doesn’t extend to allowing the prosecutor to decide who he’s going to call as a witness? That is quite the strange argument to be making.

    1. if prosecutors use testimony from police officers with a documented history of misconduct, the defense can then bring that up and use it to cast doubt on an officer’s integrity and testimony and seed doubt in the jurors’ minds.

      In this case, no, I don’t think he should. If an officer’s actions during the case on trial brings his honesty into question, yes. If they have a record of misconduct exclusive of the case at hand, no.

      1. So you are saying that being caught perjuring themselves before has no bearing on their credibility today?


  7. This lawsuit may seem baffling at first. Why would the police union demand that officers have some sort of “right” to testify in criminal cases if their testimony actually has the possibility of backfiring and clearing the defendant? Why is the police union trying to screw up these cases?

    I mean, the idea they have the ‘right’ to do so is probably because it’s assumed that the officer should probably be fired if they can’t be relied on for testimony about their job which is factually one literal aspect of doing said job.

    I don’t know if I would phrase it as a ‘right’ so much as ‘why hasn’t this guy been fired if they can’t testify without ruining their own case’?

  8. Membership in a public employee union should be an automatic firing offense.

  9. So the prosecutor should put witnesses on the stand whom they don’t trust? Why, then, should the jury trust them? Assuming of course the jury gets told about the problem.

    1. “Ladies and gentlemen of the jury, in obedience to a court order I’m putting an unreliable witness on the stand. I’m not saying you should believe this witness, just that I am ordered to put him up here.”

  10. The reason for the database’s existence is eminently logical?if prosecutors use testimony from police officers with a documented history of misconduct, the defense can then bring that up and use it to cast doubt on an officer’s integrity and testimony and seed doubt in the jurors’ minds.

    Another important reason (probably the primary reason) for the existence of the database is Brady disclosures that US Supreme Court precedent obligates the prosecutor to make to the defense attorney.

    It is my understanding that the prosecutor doesn’t get to claim that he didn’t know because the police didn’t tell him. He is obligated to find out and knowledge of anything disclosable under Brady that is known to the police will be imputed to the DA’s office.

    Why would the police union demand that officers have some sort of “right” to testify in criminal cases if their testimony actually has the possibility of backfiring and clearing the defendant?

    I think that the lawsuit is less about the right to actually testify than it is about keeping that information out of the hands of the defense. The defense can’t bring it up and use it to cast doubt on the credibility of police testimony if the defense doesn’t know about it in the first place. However, the courts aren’t going to let the police re-litigate Brady, so they have to make collateral attacks on the DA’s ability to maintain/disclose that information.

  11. I’d like to see a counter-suit by members of the public, demanding that the court order DA Krasner to furnish his list of misbehaving cops to the federal government, so it can revoke their licenses to be police officers. It makes no sense for anyone with a history of perjury, bribery, or planting evidence even one time to be allowed to be a police officer, or even a guard, anywhere ever again. Make them take up new careers that don’t require such a high level of trust.

    1. The federal government does not license local law enforcement officers. Where they are licensed, they are licensed by the state government. So the federal government has no power to revoke their licenses.

  12. The article misstates the basis for the lawsuit. This isn’t a claim for a “right to testify.” This is a claim for due process before a police officer can be unilaterally placed by a prosecutor on a “can’t testify” list that can end his or her career.

    1. No, the list is a compilation of publicly available (with some difficulty) documentation of job performance. How it is used is a matter of discretion. Some prosecutors may be more picky than others.
      Can we object to our DMV record being available to the policeman who pulls us over?

    2. While the 5th and 14th Amendments assure that no person will be
      be deprived of life, liberty, or property, without due process of law,” the right to have a career in law enforcement is not mentioned in the United States Constitution, not once.

  13. It should be rather simple. The policeman has the right to testify, and the prosecutor has the right to call him as a witness or not. Defense lawyers have the same right, to call anyone or not, including the client.
    Of course, the client does not get overtime pay.

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