ON TESTILYING

I always thought the word "testilying" came from my compadre Jack "Viva La Revolucion" Gerritsen. From criminaldefenseblog.blogspot.com:

The Cop Lied, To Me

IN 1994, Alan Dershowitz coined the phrase "Testilying." The practice of giving false testimony against a defendant in a criminal trial, typically for the purpose of "making the case" against someone they believe to be guilty when legal technicalities weren't followed to the letter during the arrest of the suspect, or while searching the immediate area.

So cops lie. We all know that. It's something we don't like to talk about because it brings out the "so what, they're guilty anyway" crowd. Of course everyone will say "that's terrible," and "that's just wrong," but deep down inside those that wonder why we even have defense lawyers, there is the thought that it really doesn't matter. These are the same people who believe that a 1% error rate on the death penalty, is the "price we pay for having the death penalty." (Yes, someone actually said that.)

So in a Miami courtroom last week, it happened in one of my cases. No, this wasn't a high profile case where the public was screaming for a conviction. This was an old misdemeanor case that no one cared about, except my client, and the 4 prosecutors clamoring to object to all that was being asked. (Tip to a young prosecutor: When you've been practicing about 5 years, you'll realize that if it's that irrelevant, there's really no reason to object so much.)

This case involved two officers that pulled over my client. During a chance encounter with one of them, this officer told me they did not observe the same driving pattern observed by the other officer.

No, I didn't have a witness standing next to me. Just me and the officer.

I ran back to my office and on the same day, filed a motion laying out the details of the conversation.

It would be a few months before the motion was heard.

"Do you remember having a conversation with me?"

"Yes."

"It was out in the hallway."

"Yes."

"You said he wasn't weaving."

"I never said that."

Not, "I don't remember," or "I'm not sure exactly what I said," "I never said that."

"You never said that?"

"No."

This went on for a little while.

In the end, the testimony of both officers was enough for there to be reasonable suspicion for the stop. I don't disagree,

But this cop lied.

What struck me was the fact that not the judge, who knows me well, nor the four prosecutors, who haven't been practicing a year and don't know me at all, acted like anything was amiss.

No one thought to ask "is Mr. Tannebaum making all of this up?" "Is Mr. Tannebaum lying?" I kept looking around the courtroom, and noticing that everyone was carrying on as if there was nothing out of the ordinary.

I'm glad this happened. These are the things that reinvigorate my passion for the practice. It reminds me that for every prosecutor and police officer I respect and may even be friendly with, there is an undercurrent of shit in our system that affects defendants everyday. This is why defense lawyers must remain vigilant.

And that's the truth.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.