Mimesis Law
14 December 2018

Laquan McDonald & Police Perjury Prosecutions: A Plan Forward

Dec. 10, 2015 (Mimesis Law) — America’s collective rage at the murder of Laquan McDonald came on the heels not of his actual death, but of the release of the video that showed it.  There was a full year between the two events.  Everyone in a position of power who saw the video did everything in their power to keep the public from seeing it.  But now that we have, things have changed.

The only reason that the video of the shooting was released was because of enterprising journalist Brandon Smith, who thankfully got a bit too big for his britches.  Credit must also be given to Judge Franklin Valderrama, who upset the apple cart by ordering the video be released to the public.  Once the release date drew near, the major players who had tried to keep it hidden had to spring into action to try to fool the public into believing that they gave a damn about justice.

State’s Attorney Anita Alvarez charged Officer Van Dyke with murder mere hours before the release of the video.  After the video became public, and amidst the uproar over a killing that should never have happened, mayor Rahm Emanuel fired Chicago Police Superintendent Gary McCarthy and promised to reform the broken system they both helped break.

Now the feds have gotten involved.  But before anyone celebrates the arrival of the cavalry, what expectations should we really have?  Scott Greenfield has thoughts on the matter.

Complaints, from black interrogation sites to hundreds of killings of unarmed citizens with nary a prosecution, had been going on for years. Only when a bad enough story hits the front page does the machinery start to crank.

And then, a weird fog overcomes the demanded reaction.  When it comes to governmental overreach, abuse, misconduct, impropriety, the federal government has taken its deserved punches.  So if it can’t clean itself up, what sort of delusion overcomes us to believe it’s suddenly got magic powers to clean up some other jurisdiction’s improprieties?

It is tempting to see this heavy dose of reality as dead-ended pessimism, but it is actually the opposite.  In pointing out that trainings and panels and so-called investigations have proven to be a complete waste of time and money, Greenfield is merely telling us that these proposed “solutions” are the dead end, and, therefore, we must try to find another way.

The pragmatist in all of us wants a solution.  On Tuesday, I wrote about Rahm Emanuel and his high stakes game of three-card Monty.  Unlike the street level con-man, Emanuel is not interested in taking our money.  He is interested in taking our eyes off the central role he played in the Laquan McDonald cover-up and the police corruption that slaps America in the face every single day.  I, like Greenfield, pointed out that firing a police chief or a district attorney or a mayor is a dead end, not a solution.  Changing the putrid police culture that has our country by the throat will not occur by changing a few figureheads.

But then a pragmatist, who has spent his career pragmatizing, decided to introduce purpose into the discussion.  Judge Richard G. Kopf gave me an assignment.*

Ken,

Do me a favor, please. Write a detailed post outlining specifically what should be done by Mayor Emanuel (what an ironic name). Thanks.

All the best.

RGK

The quickdraw response is brief.  He should resign.  While that solves the Rahm problem, it is no solution to the larger issue of a police culture infested with dishonesty but bereft of accountability.  Finding a solution to this problem has proved to be about as easy as finding a corner in a round room.  But while an answer might be elusive, it cannot be impossible.  I have eaten 34 buffalo wings in 10 minutes.  Nothing is impossible.

So, in response to Judge Kopf, here goes nothing.

First, anyone who has paid any real attention to the issue of police misconduct and abuse can see that the main problem is a lack of accountability.  We see officer after officer go uncharged and unpunished for what many of us see as illegal killings (usually of black men).  We have unified around a desire to see accountability delivered to cops who kill.  Simply put, we want murder charges followed by murder convictions.

But the problem with this approach is that cops can never really be held to the same standard that we are.  It is difficult for a regular person to say they shot and killed in self-defense or defense of others, especially when the dead person was unarmed.  It is, as we have seen from the numerous acquittals, more difficult to prove illegal intent when the government has strapped a gun to the person’s hip and told them to go out and protect us from evil.  As a reformer, I don’t like it.  As a criminal defense attorney, I completely understand it.  Proof beyond a reasonable doubt protects the probably guilty (if applied properly), and that is the way it should be.

But what if we took a different approach?  To borrow from the great American past-time, what if we stopped swinging for the fences and tried to drive in some runs with a series of pragmatic singles?  What if we stopped focusing on the murderers and instead focused on a group that is much more prevalent in American law enforcement?

What if we start going after the liars?

When we watch the Laquan McDonald video, we are drawn to the actions of Officer Jason Van Dyke.  The killer.  But what has received much less attention is the fact that numerous other officers saw Officer Jason Van Dyke gun down Laquan McDonald in the absence of any real threat, and each and every one of them lied about what they saw.  The other officers lied in their reports and they lied to investigators.  In other words, they committed perjury.

The Chicago Tribune’s review of the recently released police reports shows clear evidence of perjury.

At least one patrol officer said McDonald was advancing on the officers in a menacing way and swung his knife at them in an “aggressive, exaggerated manner” before he was shot and killed. Officers claimed, too, that even after McDonald had been shot by Van Dyke, the teen tried to lift himself off the ground with the knife pointed toward the officers, and though he had been mortally wounded, still presented a threat.

Unlike murder, assault or other crimes of violence, perjury is much more mathematical.  There is no self-defense when it comes to perjury.  The only viable defense is that the person believed that their statement was true.  When a group of cops put forward the same story, and that story turns out to be demonstrably false when compared to the clear video evidence, it is not a mistake.  It is a lie.  Even the great Gerry Spence might have to stare at his shoe tops when trying to argue otherwise.

Beyond the sheer improbability of a group of officers all incorrectly remembering an event in the same exact way, there is clear motive.  The cherry on top in a prosecution of Van Dyke’s fellow officers would be that they each had the motive to lie, to turn the illegal killing of Laquan McDonald into a justifiable instance of self-defense or defense of others.  They did it to protect their fellow officer, in spite of the truth.  Is there any reasonable doubt that those officers lied?

No, there is not.  Guilty of perjury.  Turn in those guns and badges.  Those officers would never be able to credibly testify ever again with a perjury conviction under their belts, so they are useless as law enforcement officers.  The punishment they should receive for their crime is honestly of lesser concern.  Just stop being cops.  Go sell shoes or vacuums.  You can lie all you want in those professions.

And perjury prosecutions do not need to be limited to the cops who tried to cover for killer cops like Van Dyke or Ray Tensing or Michael Slager.  The high profile cases where the police shoot and kill an unarmed person get all the attention, but video and audio recordings catch cops lying all the time in non-lethal interactions.  With all of our attention on the relatively small number of killings caught on video, the police are getting a complete pass on perjury.

But cameras are everywhere.  If a cop needs to be concerned about being prosecuted and fired if what he puts in his report fails to match what some Burger King surveillance or camera phone recorded, then those reports might become a lot more truthful, or they might not be written at all.

Now the bad news.  You and I can’t prosecute lying cops.  That is, unless you happen to be a prosecutor, and then you should have been doing this all along.  But we are here to talk about solutions, not blame (just to be clear, prosecutors are also to blame).  If cops are going to be held accountable, it must come from the prosecutors.  But there is currently a lack the motivation to cross their friends in the police department.

This might be the point where we throw up our hands and think that we have hit yet another dead end.  What hope is there if we need to rely on prosecutors to do the job they have thus far refused to?

That concern is valid, but it is also changing.  Before many of us knew that Ferguson, Missouri existed, cops rarely faced charges for killing unarmed citizen.  But now that America is paying attention, this is changing.  The failure to fire or charge Officer Van Dyke has cost former Superintendent McCarthy his job and will make it difficult for State’s Attorney Alvarez and Mayor Emanuel to keep theirs through the next election cycle.  The people have risen up and demanded accountability for killer cops, and things have changed, albeit slowly.

But for every Van Dyke out there, there are a thousand liars in uniform who ruin people’s lives.  If vengeance is our focus, then we will continue to be distracted by long, drawn out murder trials that will continue to end in unsatisfying acquittals.  And that is precisely what those in power want.  But if reforming the dishonesty of police culture is what we truly want, then pragmatic perjury prosecutions will give us much more return on our outrage investment by dropping some truth bombs on the other side of that blue wall of silence.

*  As a good lawyer, when a judge tells me to do something, I usually do it.  Especially if that Judge’s last name is Kopf.

19 Comments on this post.

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  • Richard G. Kopf
    10 December 2015 at 1:15 pm - Reply

    Ken,

    Thank you for responding to me. I truly appreciate it.

    Your suggestion is a very good and practical one. A plethora of properly investigated and even-handed perjury (or false statement) prosecutions of police officers make tons of sense from a general deterrence point of view as well as a “just deserts” perspective.

    The elephant in the room is how to accomplish those prosecutions in a manner that balances the various interests while having some chance of working politically. I have two suggestions: (1) require that internal affairs officers in a police department be appointed for fixed terms by the city council with the direction that they report only to a special prosecutor; and (2) create a standing office of special prosecutor (with the special prosecutor appointed by the city council and entirely independent of the local prosecutor) to prosecute cops who lie.

    Again, great job, and very practical too. Thank you.

    All the best.

    RGK

    • Leonard
      13 December 2015 at 3:25 pm - Reply

      I don’t believe that internal affairs has ever been an effective way for police departments to investigate their own. In fact, I don’t believe in the fox guarding the hen house period. Better to create a separate external department whose sole responsibility is to investigate and prosecute misconduct, especially use of force/deadly force incidents. We have a rich and clear history that prosecutors and the judiciary give to much deference to the judgments of officers and departments. I don’t see significant and meaningful change until the system changes.

  • JS
    10 December 2015 at 2:02 pm - Reply

    I don’t know man. What you are suggesting is some sort of equality under the rule of law for cops too.

  • Ken Womble
    10 December 2015 at 2:17 pm - Reply

    Thanks Judge. Your second suggestion is interesting. In New York, a special prosecutor has been established, but only to investigate if the police kill an unarmed individual. Incredibly limited. Plus, this kind of set up is begging for a scorched earth media battle if they ever decide to charge a NY officer. And the police (especially the unions) have shown that they can scorch with the best of them.

    Granted, a focus on perjury would involve many more cases, but they would be much less involved and would likely not play out in the same glaring spotlight as a murder case. Could prob be done with similar or slightly more resources. But with significantly greater impact.

    So it sounds like we have two votes. Who else is with us?

    • Mark Daniel Myers
      10 December 2015 at 4:59 pm - Reply

      I am with you. There is a novelty to your proposal reminiscent of Al Capone’s prosecution for tax evasion, of all things. It’s just crazy enough to work. Three votes.

      • Peter H
        11 December 2015 at 9:32 am - Reply

        Unlike Capone though, this doesn’t have the patina of charging the wrong thing because you can’t charge the right thing. Perjury is in fact the right thing to be charging, and lying to protect officer misconduct is probably the biggest problem of policing in America today.

  • Cindy
    10 December 2015 at 4:31 pm - Reply

    “…Anita Alvarez charged Officer Van Dyke with murder…”

    Officer Van Dyke was charged with 1st Degree Murder. Why 1st Degree Murder? Premeditation is an essential element of 1st Degree Murder. Officer Van Dyke only encountered Laquan McDonald mere minutes/seconds before pumping 16 bullets into Laquan’s body. In that very, very short time span did Van Dyke intentionally plan to kill Laquan McDonald? ???? Can the state prove it beyond a reasonable doubt?

    Anita Alvarez should have charged Van Dyke with depraved indifference murder and/or manslaughter. The videotape is very strong documentary evidence of Officer Van Dyke’s acting with depraved indifference to human life. Van Dyke acted recklessly.

    • shg
      10 December 2015 at 4:34 pm - Reply
      • Cindy
        10 December 2015 at 5:01 pm - Reply

        You are correct. Premeditation is not requirement of 1st degree Murder in Illinois. Thanks for pointing that out. It will save me from telling others erroneous information. I should have looked at the statute before commenting.

        • Scott Jacobs
          10 December 2015 at 7:10 pm - Reply

          Part of the problem is I don’t think “premeditated” means what you think it means.

  • End of the Semester Fire Sale: Every Link Must Go | Gerry Canavan
    12 December 2015 at 10:01 am - Reply

    […] version of events told by the officer who fired the fatal shots, newly released records show. Laquan McDonald and police perjury: a way forward. The U.S. Department of Justice unit that investigates civil rights violations by police […]

  • Eva
    13 December 2015 at 3:43 pm - Reply

    Firing cops who lie is probably the best solution to this problem.

    I also think that following the money regarding any kind of investigation would probably go hand in hand with these kind of investigations to see if there is any kind of outside vested interests that may be uncovered too and addressed.

  • Baby Bou Bou And The Busted Plan | Simple Justice
    15 December 2015 at 8:06 am - Reply

    […] there was still the lies in the reports to cover-up this crime.  Ken Womble’s modest proposal at Fault Lines was that we start with the lies, the perjury, designed to conceal police officers who do […]

  • A few law-enforcement links from Radley Balko | Later On
    16 December 2015 at 4:54 pm - Reply

    […] telling that something like “police officers who lie in court should be prosecuted for perjury” would be offered as a reform — and a controversial one at […]

  • jeolson11
    17 December 2015 at 2:14 am - Reply

    The 1st degree murder charge serves both the Police and the Prosecutors interests. By overcharging, the prosecutor can look tough while increasing greatly the chance of a hung jury or an acquittal of the police officer. No one goes to jail BUT the Prosecutor and the Police Department look good (or better than they did 2 weeks ago).

  • How About Perjury Prosecutions for Cops Who Lie About Other Cops’ Killings? | MasterAdrian's Weblog
    20 December 2015 at 10:00 am - Reply

    […] Read Womble’s complete article here. […]

  • Trending: Cops Getting Indicted and Their Shocked Reactions
    29 January 2016 at 7:26 am - Reply

    […] Womble called it in an earlier post: go after the officers for perjury. That’s what you are seeing here, and it is what the screaming […]

  • Why Do We Still Bother With The Oath?
    12 April 2016 at 9:25 am - Reply

    […] Ken Womble has suggested that we may be able to solve some of our problems with law enforcement simply by regularly pursuing perjury charges when officers lie. But for as long as those charging decisions are made primarily by people whose convictions might be threatened by those prosecutions, such inquiries are not going to be a regular part of our system. […]

  • Will The Chicago Police Union President Always Be Tone Deaf?
    17 August 2016 at 9:14 am - Reply

    […] seem to think so. He thinks things are upside down because cops are taking heat for things they have done. In this instance, it is the murder of Laquan McDonald and the subsequent effort by cops to cover […]