Police Review: Investigation of Internal Affairs records and Other Files

This article deals with a fairly new concept in investigations conducted by the Law Offices of the Public Defender for the 17th Judicial Circuit. Until a few short years ago, most Public Defender agencies had never dealt with Police Review. I believe that this tool had not been explored because the Public Defender Investigators are not authorized to investigate police. We also adhere to this restriction and do not investigate police. What we do however, is collect and analyze public record documents to determine proper conduct of the officers, and any prior misconduct. This involves the exploration of Internal Affairs records, Personnel files, Federal and local civil court documents, and newspaper articles. Our State Attorney’s Office has been less than forthright in giving up Brady material until recently, and I suspect that this is the case in most Judicial Circuits. Knowing this encouraged us to seek out any public documents which we could obtain, evaluate, and utilize in various hearings.

About two years ago, one of the Chiefs in the office received a list of several police officers who were under investigation. This list was forwarded to us by an attorney in the State Attorney’s Office per their Brady obligation and our request for Brady material. Prior to this we had never been given any Brady notices that anyone in our office could recall. As you might imagine, this set off a response that has resulted in a multitude of Brady notices received by our office on almost a daily basis.

Prosecutors are required to disclose to the defense evidence favorable to a defendant which is either exculpatory or impeaching and is material to either guilt or punishment. Evidence is "favorable" to the defendant if it either helps the defendant or hurts the prosecution.

Our office began to collect Brady notices and ordered Internal Affairs information on the officers involved. We quickly began to learn that our office had been missing out on some very serious substantiated allegations related to officers in our area. All of these officers were witnesses against our clients in open cases. The State Attorney’s Office was questioned by our Public Defender, Howard Finkelstein, as to why we had not received Brady information prior to this. Their response was simply that their interpretation of Brady was not the same as ours. However, after the very public exchange of letters between Howard Finkelstein and the State Attorney, Brady notices began to stream in by the handful. During the following weeks the notices on the “Brady Bunch” officers went well over 100. In most cases, these were officers who had been under investigation for weeks, months, and years. In one case, an Officer with whom we had several open cases, had been under investigation for allegations that he had taken money from drug dealers and had not turned the money in as evidence. These allegations were eventually sustained and the Deputy was arrested and fired. Another Police officer was placed on suspension after helping a fellow officer who had been involved in an accident. The accident took place when an off-duty officer hit the rear of a stopped vehicle. The responding officer and the Accident Investigator teamed up to make it appear that the operator of the stopped vehicle was at fault. This was discovered after obtaining a complete copy of a dash cam recording in which the officer discussed his intentions in making the accident a Disney Story. This officer was also fired and prosecuted.

Another avenue of discovery we have taken is to reinvestigate the investigation.  I like to say that we start from the outside and work in while the police start from the inside and work out. They have a distinct advantage over us in that they have witness statements in hand, photographs, videos, and other evidence available from the start. In some cases we are unaware of everything that the agencies have in their files so we need to develop our own strategies. This course of action has proven to be essential in many of our cases. In one such case, our homeless client was stopped by officers after he reportedly yelled obscenities at them and extended his middle finger in their direction. Their report alleged that the client became combative and struggled with the officers and was arrested.  Investigation on the scene however revealed a video camera that was installed on a business adjacent to the arrest scene. When questioned about the incident, the owner of that business said he had observed the arrest. At first the owner thought that the officers, who were in plain clothes, were trying to kill the client. When he approached them, he was ordered back inside his business by the officers and threatened with arrest. Our investigator questioned the store owner about the camera and learned that he had the incident on video. When the video was played in court and the store owner testified for our client, the case was dropped. These cases began our procedure that we labeled “Police Review.” Our police reviews discovered several cases in which officers had been less than truthful on their reports, their probable cause affidavits, and their depositions. Our investigators then wrote an overview of the police review, listing the misconduct. The overviews were included in letters to our State Attorney from our Public Defender, Howard Finkelstein, asking his office to investigate the officer’s conduct. Keep in mind that this procedure should not have been needed in cases in which the State had already dropped its prosecution due to the officer’s misconduct. An investigation by the State should have been automatic, but it had never been. The first case we sent to the State for investigation involved an officer who reported seeing our client driving his vehicle around 2:00am. According to the officer, the client pulled his car into an abandoned gas station and was stopped at that point. The officer discovered that the vehicle had an expired tag and the client had no driver’s license. That officer also testified in a deposition to those facts. At this point technology began to assist us in reinvestigating that case. We ordered copies of the CAD (Computer Aided Dispatch), which is a list of the officers involved in the incident and an overview of what information they send to their dispatcher. That showed that there were actually three officers involved in this incident. We then ordered copies of the AVL/GPS reports (Advanced Vehicle Locater/Global Positioning System) from the officer’s police units. These items combined together showed that the arresting officer was not even the first to arrive on the scene, but was last. It would have been impossible for him to have observed the client driving the vehicle as he had testified. That officer was investigated by the State Attorney’s Office and charged with falsifying his reports. He was later terminated from his position.

One of my responsibilities as Chief Investigator is to assign cases to our investigative staff. Prior to giving the case to the investigator, I evaluate the attorney’s investigative request and read the discovery. This gives me an idea of what facts the investigator may need to explore and also allows me to evaluate the facts of the report and the probable cause. Twenty-six years as a police officer and over 15 years as an Investigator for our office gives me the ability to get a feel for what the officer is doing and saying in his reports. Some of our police review cases were the result of this first evaluation. In one such case, our client was stopped for walking on the road not utilizing an available sidewalk. The officers stated that the client was seen walking with traffic in the street in violation of the State Statute. That Statute requires the pedestrian to walk facing traffic if there is no sidewalk, and on the sidewalk if there is one available. The officers also reported that once they stopped the client he was asked if they could search him, which, they say, he consented to. A small amount of cocaine was located on the client and he was charged with that as well as not using the sidewalk.

The first thing that I noticed about the report was that the client had been in front of his own residence when he was stopped. I then went to the scene where I was able to locate the sidewalk which the officers had reported that the client had not been using. The sidewalk was approximately 70 feet in length and was located in front of an apartment building that was under construction directly across the street from the client’s address. When this case was reviewed and forwarded to the State, the case was dropped during a motion to suppress hearing. During the hearing a local reporter overheard a prosecutor telling the arresting officer that she was not going to embarrass her office by proceeding with this case.

In another case, our client was stopped for not wearing seat belt. The officers stated in their reports that they were able to see that the client was not wearing his seat belt because they were going in the opposite direction and saw the client through his windshield. All of the other windows in the car were tinted, so the only way the officer could have seen the violation was through the windshield. After stopping the car, the officers searched the client and the vehicle. They located narcotics and charged the client accordingly. In a sworn deposition, one of the officers verified the facts as stated in his police incident report and probable cause affidavit.

An interview with the client established facts contrary to those of the officers. The client stated that the officers had not been going in the opposite direction of his car but they had been following him. We were able to obtain a copy of the AVL/GPS report which did verify that the officers had been following the client and not going in the opposite direction. When confronted with this fact by our attorney, the officer changed his testimony and finally said he did not recall which direction he had been traveling. This case also was dropped by the state and the officer was investigated by the State Attorney’s Office.

So what then is our purpose in conducting “Police Review” if it is not to investigate the officers? We believe that an attitudinal culture exists among officers that they can create probable cause to fit the situation. This is done because of Quotas in the form of “Performance Standards” and the illusion that no one is watching.  As I have already stated, it is not in our job description to investigate the police nor is it our responsibility to have them charged with misconduct. There are many other agencies charged with that responsibility. It is however, our mandate to look at every aspect of every incident to assure that the facts, as they are presented, are true and correct. Our procedure in every case, from homicide to a single traffic ticket, is to vigorously review and evaluate. To date we have forwarded over 12 cases to the State to be investigated. Most have resulted in disciplinary action from the officer’s agency. Some have resulted in formal charges being filed by the State and termination of the officer. I have been solicited by local police agencies to give statements against the officers involved in these cases. It has been our practice not to give statements against police officers because it is unnecessary. We forward all of our reports to the State and they have copies of the officer’s reports as well. Our purpose then as stated by Public Defender Howard Finkelstein is, “to change the culture.” At some point the officers need to understand that they put their careers, their families, and themselves at risk by creative report writing.  On my office e-mail I have a note that says, “The right thing is not always popular and seldom easy. It is however always the right thing.” We will continue to do the right thing for our clients.   Officers also need to do the right thing – not only by the persons they arrest but for themselves and their families.

We have already seen some indication that things are changing. In recent cases we have had involving officer misconduct; the State has begun to review those cases without our request. We have also have seen a dramatic decrease in the number of misconduct cases that we have discovered.

Please do not believe for one minute that this article is intended as an indictment of all police officers. We know that the vast majority of officers do an incredible job, work long thankless hours, and spend many holidays away from their families. To those officers we all owe our safety and peace of mind.  To the few others who feel the need to take short-cuts in due process I can only say, “We are watching.”