The New Dropsy, Chicago’s Fragile Cameras
Jan. 29, 2016 (Mimesis Law) — Chicago is feeling a little sheepish about its cop murdering Laquan McDonald, then fighting disclosure of the crime and encouraging perjury from officers on the scene. It even offered to buy some extra cameras. Awfully generous.
But unfortunately, no one has yet made a camera that works when the microphone is hidden in the glove compartment, the lens is smashed, or the power is cut off.
As DNAInfo reports:
In fact, 80 percent of the Chicago Police Department’s 850 dashcam video systems don’t record audio due “to operator error or in some cases intentional destruction by officers,” according to a review by the Police Department.
And dashcam videos don’t seem to fare much better, when there’s a chance that the officers may have made a mistake:
[O]nly three of 22 Chicago Police-involved shooting investigations forwarded to the Cook County State’s Attorney’s Office from the Independent Police Review Authority this year included dashcam video evidence. And none of those videos included audio recordings, state’s attorney spokeswoman Sally Daly said.
That’s remarkable. Generally, about 12 percent of dash cameras are not working at any given time. But when there’s a shooting under investigation, that number jumps to 87 percent.
Perhaps that’s just being cynical. Fraternal Order of Police head Dean Angelo seems to think that the problem is that Chicago simply fails to repair its cameras and microphones enough.
The FOP has been brought into discussions about things we have nothing to do with, and officers are being accused of being involved with things they have no impact on. They’re looking to discipline people, but they don’t repair them. It’s easy to point fingers now and it seems … whether you’re involved in the department or an elected official, everyone wants to point toward [the FOP] or our members.
The problem with the “they’re just not repairing it enough” argument is that the equipment seems most prone to fail right when it’s about to record something that might be the basis for officer discipline.
See, when you have a device that is working reasonably well normally, and then it happens to stop working right at some crucial point, there are very few people who are going to believe that it is just a coincidence. Even if you are the President of the United States, and there’s only eighteen minutes missing from your audiotape.
It also looks a lot more suspicious when officers aren’t just destroying their own tapes of violent encounters with citizens, they’re wandering off into nearby Burger Kings to wreck their tapes.
As for the microphones, an eighty percent fail rate is just uncanny. Until you consider that audio rarely helps the officer in the courtroom. There may be swearing, or lying, or coercion that shows up in an audio recording that can just be waved away in the face of a silent video and a defendant who can’t testify without having his entire criminal history dragged out in front of the jury.
At this point, it would probably be fair to draw the inference that these cameras and microphones are not spontaneously combusting in the face of all the awesome police work they’re witnessing. Rather, officers are disabling or destroying them because they would rather rely on the enhanced credibility their badge brings them, rather than an accurate record of what happened.
So, in Chicago at least, something has to give. Taxpayer money is being wasted. Courts are having a harder time getting to the truth of what happened, rather than simply taking the officer’s account at face value.
Isn’t it time, at long last, for Radley Balko’s proposed missing video presumption?
As Scott Greenfield points out, there is simply no one who has more control over whether a dash cam is working than the officer at the scene. And yet there is no incentive for him to make sure that his equipment is working. Officers who would rightfully balk at having to go out with a non-functional firearm or a busted radio see no problem in forcing courts to rely on them as sole witnesses to an event.
It’s time to put the incentives in the right place. When there should have been video or audio of an event, be it a shooting, an arrest, or an interrogation, instruct juries that they should presume that the video or audio would have been favorable to the accused unless the officer can show that his equipment failure was both recent and unintentional.
As useful as this might be in the jury trial context, it would be even more useful at suppression hearings, which often turn solely on an officer’s description of an arrestee’s consent. You often se reports that read like:
At this point, Officers Red, White, and Black arrived at the front door, at which point the homeowner stepped aside and waved us in and we found four kilograms of heroin in plain view under a mattress.
When the outcome of a hearing is so dependent on small factors (Was the guy actually waving you in? Was the bag of heroin really poking out from beneath the mattress?) it is hard to imagine that courts will really be able to know what happened. The requirement that such searches be either filmed or forfeited would likely lead to far more accurate enforcement of citizens’ rights.
We spent a long time believing police officers who claimed that defendant’s simply “dropped” drug evidence on the ground in plain view before judges started to get a little bit skeptical. We were willing to believe that officers were afraid that suspects would kick their way out of squad cars to run back to their vehicles and seize weapons. But eventually, we stopped accepting those excuses.
If we expect Chicago’s cameras to keep working when we need them most, then someone is going to have to create some consequences when they don’t. And if, incidentally, these new videos cause judges to doubt the “new professionalism,” well… most of us in the defense bar won’t lose much sleep over it.