Friday, December 12, 2014

Just "Requiring" Body Cameras is Not Seeing the Whole Picture

Many, including President Obama, have called for police to wear body cameras in the wake of Darren Wilson's killing of Michael Brown.  Others are skeptical, saying we need look no further than the death of Eric Garner to show that not even clear footage of a cop killing an unarmed man is enough to get an indictment in our system.  The criticisms as the relate to the Eric Garner situation are legitimate, and show why body cameras alone are not the solution.  Eric Garner's death shows we need other solutions in tandem with body cameras, like creating single term limits for prosecutors and eliminating qualified immunity in excessive force cases.   But body cameras are an important part of fixing this problem in the future and preventing prosecutors from hiding behind conflicting witness statements (which exist in most cases against civilians, which they have no problem prosecuting) as an excuse for not pressing charges.  But not just any body camera policy will do.  As has been proven by policies regarding recording police interrogations and cop car dashboard cameras, if the policies do not have strong enforcement mechanisms they will be meaningless.

Recording Interrogations:  The Prime Example of a Missed Opportunity

Missouri provides us with a perfect example of what can go horribly wrong if we do not craft a body camera policy with strict enforcement mechanisms.  A few years ago Missouri passed what, on its face, looks like an awesome law that required the recording of all felony interrogations.  But it did not work.

You see, our criminal justice system has a real problem with false confessions.  According to the Innocence Project, approximately 30% of the wrongful convictions proven wrongful by DNA evidence involve false confessions.  This is in part because the regular every day people who wind up on juries think to themselves that they would never confess to something they didn't do, so false confessions are not real.  But the DNA evidence proves that they are.  Young people, the mentally ill, and people with intellectual disabilities or other intellectual limitations are the most likely to falsely confess.  Intoxication or just plain old fear can also play a role.  Police officers coerce confessions.  The law allows police officers to lie to people to get them to confess.  And, while its illegal, some cops have even tortured suspects to get them to confess to crimes they did not commit.

Yes torture.  Not all that unlike the CIA torture we keep hearing about in the news.  For example, in Chicago former Detective Jon Burge tortured over 200 criminal suspects between 1972 and 1991 to get them to confess to crimes.  Suspects he or those he supervised interrogated were beaten, burned, suffocated, and subjected to electric shocks.

So Missouri came up with a great solution to this problem.  Record the interrogations.  Let the judges ruling on their admissibility and the jurors see the confession in context and in its entirety.  And Missouri passed a law to record these interrogations.  But the law that it passed is absolutely toothless.  It is what is now Missouri Revised Statute 590.700.2.

Now, there are a lot of loopholes in this statute.  But the most important for our purposes is the complete and total lack of an enforcement mechanism.  In fact, it has whatever one would call the opposite of an enforcement mechanism--language that prevents it from being enforced in any way.  The last three subsections of the statute say:
5. If a law enforcement agency fails to comply with the provisions of this section, the governor may withhold any state funds appropriated to the noncompliant law enforcement agency if the governor finds that the agency did not act in good faith in attempting to comply with the provisions of this section.

6. Nothing in this section shall be construed as a ground to exclude evidence, and a violation of this section shall not have impact other than that provided for in subsection 5 of this section. Compliance or noncompliance with this section shall not be admitted as evidence, argued, referenced, considered or questioned during a criminal trial.

7. Nothing contained in this section shall be construed to authorize, create, or imply a private cause of action.
So a failure to record the interrogation has no effect on the criminal case and does not open up the officer who fails to record to any sort of private action.  What this results in is a system where the few good officers out there who we didn't have to worry about in the first place record the interrogations, but the dirty ones still do not because there is nothing forcing them to record them.  If we allow this same nonsense to happen with body camera legislation, it will be a waste of time.

Dashboard Cameras--Why We Cannot Allow Police to Delete Body Camera Footage

One issue that comes up with body cameras is the question of storage--how do we store the footage and for how long.  As worked up as some opponents of these cameras get about how hard the storage will be you would think that we were still in the days of VHS tapes or Betamax.  If the NSA can store a yottabyte of information I am not terribly concerned about the government's ability to store some video footage.  And if we do want to allow for the deletion of the footage after some period of time, it absolutely must be overseen by some outside neutral party, not the police or prosecutors themselves.  Because when law enforcement is allowed control over deleting this sort of footage, they do it badly.  Dashboard camera footage proves that.

Dashboard cameras are exactly what they sound like.  They are cameras mounted on police cars that usually record audio and record video in front of the police car.  The officer can usually manually activate them or they turn on automatically when the officer turns on his or her emergency lights.  They can be an extraordinary tool for honest officers to use in the investigation and prosecution of drunk driving cases.  When used properly the cameras show the suspect's driving, his or her interactions with the cop, whether field sobriety tests are properly admitted (you would be shocked by how often they are not), and how the suspect performed on those tests.  These tapes can be strong evidence of guilt.  They can also be strong evidence of innocence.  But all too often they wind up destroyed.

You see, police department are allowed to set policies as to how long these recordings are kept before they are destroyed.  Sometimes they are kept for as little as 60 or 90 days.  But prosecutors have well over 60 to 90 days to press charges.  In the case of misdemeanor DWIs they usually have about a year,and in the case of felony DWIs they have longer than that.  And prosecutors often take their time in charging these cases because they have to wait for other evidence to arrive like certified copies of prior convictions and lab results.  So often a defendant is not charged with the DWI until after the dashboard camera footage that may show his innocence has already been destroyed.  So there is no way for the defendant or the defense attorney to request that important evidence until it is already too late.

This happens because of a United States Supreme Court decision called Arizona v. Youngblood.  In Youngblood, the Supreme Court held that:
unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.
What this means is that unless either (1) you can prove that the cops intentionally destroyed evidence that could possibly show your innocence because it could possibly show your innocence, or (2) that the evidence would have proven your innocence, you have no recourse for the cops destroying the evidence.  Of course (2) would never happen--if you could prove that the evidence would prove your innocence, you could prove your innocence without the evidence.  And (1) is almost impossible to do, unless you have a cop who was a bad cop but who undergoes a crisis of conscience.  So again, just like in the Missouri interrogation context, there is no way to enforce use use of and access to these recordings.

We Can't Just "Require" Body Cameras, We Need to REQUIRE Body Cameras

Body cameras are not the whole solution to our police brutality problem.  They are only one part of the solution.  But they can only be a part of the solution if we are willing to be serious about it.  Only if we hold the system accountable when the body cameras are not will they be useful.  If the recordings are not made or are destroyed, we need to allow that failure to have an impact in the defendant's favor in the criminal proceeding.  Theoretically it allows for a guilty person to get away with a crime, but that possibility only comes to fruition if the police do follow the rules.  That would fall on them.  And, for the most egregious cases, we may want to consider creating a private cause of action against officers or departments who willfully and wantonly disregard requirements to use the cameras.

No comments:

Post a Comment