Why would he lie?

We've all heard it at trial whenever there is a question about the veracity of a police officer's testimony. The prosecutor will ask the jury why a police officer would risk his job and his reputation for the sake of lying to get one conviction. Judges who came to bench straight out of the DA's office or who have never defended anyone accused of a crime can't fathom why an officer would lie. And jurors, most of whom have never set foot inside a courtroom, tend to believe the police because that's the way they were raised.

That's exactly what Kyle Reeves, then a prosecutor in Brooklyn, said to the jury in 1997 when a defense attorney accused the state's main witness, Louis Scarcella, a former homicide detective. And, as is par for the course, the jury bought the story.

The defendant, Jabbar Washington, said that Det. Scarcella told him what to say in his confession and beat him until he said it. Interestingly enough, Mr. Washington's confession began with the same two sentences that suspects in other cases interrogated by Det. Scarcella said.

“Our experience all around the city is that errors by police and errors by prosecutors go hand in hand and frequently become a toxic mixture,” said Steven Banks, the chief attorney for the Legal Aid Society, which represents many of the defendants whose cases are under review. “There are a series of circumstances that should have set off alarm bells both at the precinct and in the prosecutor’s office.” 

Now the Brooklyn District Attorney, Charles Hynes, has ordered an investigation into about 40 cases investigated by Detective Scarcella. Earlier this year Mr. Hynes revealed that an innocent man spent more than two decades behind bars due to a "flawed investigation" by Detective Scarcella.

Doubts about Det. Scarcella's integrity began to rise long before that trial in 1997. At least six defendants in murder cases have claimed that Det. Scarcella made up their "confessions" himself. In a rape trial back in 1983, a judge said that the defendant was more credible than the detective due to the number of times Det. Scarcella responded "I don't remember" under cross examination.

As an aside, earlier this year I tried a case in front of Judge John Clinton in Harris County. When it came to light that, despite the fervent denials of prosecutors, that both police officers had been investigated by internal affairs, I asked the judge for a continuance so that I could obtain the records I had previously requested from the city. I told the judge that since we now knew these files existed that I needed an opportunity to review them to find out if there was anything else we weren't being told. Judge Clinton, a former police officer, then said that he just couldn't fathom that a police officer would risk his career by lying on the witness stand.

It's this attitude on the bench that has led to the utter decimation of the Fourth Amendment because, in a world in which defendants always lie and the police never lie, nothing is ever suppressed.

Another question that sticks out in this case is why on earth the Brooklyn DA's Office - the same office that vouched for Det. Scarcella over the years - is even involved in the investigation. Even a blind man can see the blatant conflict of interest. Once a person is convicted, the prosecutor's office will fight tooth and nail to keep that person behind bars - regardless of the evidence before them.

The critics note that Mr. Hynes, 78, is seeking re-election and that Mr. Scarcella’s daughter works in the office as a prosecutor. In a brief interview, Mr. Hynes said that so far no glaring problems had been discovered in the review. He said the detective’s sloppy work was not brought to the office’s attention until a year ago, when it reopened the case that led to an exoneration. Even in that case, he found no reason to blame the prosecutors. 

“I am not going to second-guess the assistants involved,” Mr. Hynes said. “They are very good trial lawyers.”

We see it in almost every exoneration case. Prosecutors will argue til they're blue in the face that the defendant had a fair trial and that the evidence was overwhelmingly in support of the verdict. They will fight to keep evidence from being retested. They will fight to keep new evidence out. And so, unless Mr. Hynes' office finds that every conviction involving Det. Scarcella should be tossed out, there will always be questions of just how honest the investigation was.

I mean, after all, Det. Scarcella's being investigated by the same office who told jury after jury what an honest cop he was.