Cue the Radiotape

Jamison KoehlerDiscovery, Evidence, Social Media and Technology, Trial Advocacy

I am a middle-aged man with some life experience. I have been doing criminal defense for a while now. Just yesterday I posted how many police officers “editorialize” when testifying. Still, I continue to be surprised – each time anew – every time a police officer gets up on the stand and lies.

I should have seen the signs. There were problems with the government’s case from the beginning. The case started out with charges of armed robbery, first degree burglary, kidnapping, and assault with a dangerous weapon. Two weeks before trial, the felony charges were gone, with only four misdemeanor charges remaining. Three of those charges were knocked out on the morning of trial because of Brady and discovery issues.  By the time we go to trial, we are facing a single misdemeanor charge – possession of a BB gun – that until recently would have been punishable in D.C. by a $25 fine.

In other words, the case has a certain smell to it.

I also have a bad vibe from the police officers on the morning of trial.  Stepping into the cramped witness room to inspect the evidence, I am met with six police officers – six officers needed to make out a charge that in many jurisdictions isn’t even illegal. They are clearly cranky it has come to this.  I should have known they would try to take this out on my client.

The first order of business is a hearing on a “motion to suppress” at which the government will need to prove that the officers had a “reasonable” and “articulable” basis for stopping my client.

The officers are not stupid.  They know something about the law.  They know that the description of a “black male wearing a gray coat wanted in connection with armed robbery” could fit hundreds of people within a two-block radius of the crime scene.  They also know that this judge – a former public defender – is likely to agree with me on this.

Officer Smith is a heavy-set, light-skinned woman in her late 20s.  When I speak with her in the witness room, I recognize her voice from the radio tape.   “Will respond,” she says on the recording.  “What is the lookout?”  The description is repeated. Minutes later, you can hear her voice again, this time breathless and harried.  “Need back up,” she says.  “Suspect stopped.  5th and Trenton.”

I can’t help wondering what the prosecutor thinks when, once on the stand, Officer Smith decides to improve on the lookout. It is still “black male wearing a gray coat in connection with armed robbery. ” But now she adds to the description:  “five foot five, wearing skullie.” She looks over at me for the first time during her testimony as she says this.  And her eyes narrow. Now I know her “tell.”

If I don’t know how the prosecutor is reacting, I do know what I am thinking:  Really?  Does she not know that I have a copy of the radiotape cued up on the laptop in front of me?  I am happy because now I have more impeachment material.  I am also annoyed because now I am going to have to play the radiotape, and radiotapes are notoriously difficult for the court to hear and understand.  Unless you have ever worked as a police dispatcher, you have to play them again and again to understand what is going on.

The prosecutor takes his time introducing the gray coat and skullie into evidence. I make some notes on my counterattack. I check to make sure the radiotape is still cued up. Then I sit back and wait for my turn.