idiggory, King of Bards wrote:
Their notes being reviewed by the same counsel before submitting is itself problematic.
Agreed. But it's not the same as having both officers in the same room while writing those notes as was repeatedly claimed. There's a difference between "problematic, but could be an innocent scheduling issue" and "no way this could be done without an intent to falsify the resulting reports". Alleging the latter if it didn't happen is disingenuous at best.
You give one person, who has the
rightprivilege not to disclose what goes on with his or her clients, the power to advise them both regarding notes of the same event. There's absolutely no way to ensure that their notes wouldn't be collaborated through this process.
Semantics, but it's important in this case.
If the process involved a back and forth, yes. But if either different lawyers were used (the best way to handle this IMO), or even if the same lawyer handles both but does them serially (meaning he takes the statement from the first officer, advises him on the best legal language to use, and they write an official report and when he's completely done, he goes on to the second officer) much of that concern can be reduced. In the second case, you're still left with the possibility that the lawyer could advise the second officer in ways which result in a more consistent report at the end.
Honestly though, I'm not sure how critical this is. In that case, the attorney would have to be knowingly violating the law. Not many attorneys are going to do that. And frankly, there are a **** of a lot easier ways for the officers to get their stories straight than this if they really want to. While I'll freely admit to having never heard about this case before, it honestly looks to me like a group of people not satisfied with the official explanation of the shooting, and in the absence of any contradiction or questionable statements in the reports of the officers or evidence collected from the scene, or any other data which might be available, have decided to sue over the methods by which the reports were written in the first place.
And I guess my biggest issue is that the way it's being presented here is like this was some gross violation of the rules. But this appears to be the standard way of handling officer related shootings in that organization. I can't imagine that this just appeared out of the middle of no where. Someone just decided in this case to sue over it, and an investigator decided to raise a big stink about it (apparently about something which would be true in every case involving an officer related shooting for some time now), and a judge decided to rule in the favor of the plaintiffs.
I suppose that's how legal changes happen, but I still have some concerns about the apparent bending of public policy to public outrage (which may very well be exaggerated via the very kinds of false claims being posted in this thread). That's a really bad reason to make judicial rulings which may have a significant impact on people's rights, so I'm a bit concerned about that.
I'm generally accused of being overly idealistic on this board, and even I can see that just trusting lawyers to not do this is pretty absurd.
We trust lawyers to do the exact same thing every single time a person is arrested though (or even just questioned). You're guaranteed the right to speak to an attorney prior to being questioned by authorities. Always. And any one of those lawyers might coach their client on what to say and what not to say (in fact, they do this all the time). But they aren't allowed to tell their clients to lie, and they aren't allowed to knowingly present false statements on behalf of their clients. Yet, they certainly *can* do this. And we still extend them attorney/client privilege and we don't consider this a problem. Even in cases where the same lawyer represents two people in a case! OMG!!!
The legal system is required to work around those things. Find evidence at the scene that contradicts the statements of the officers. Find some reason to doubt their statements. But don't just assume that because they *could* have written false statements and the lawyer *could* have facilitated this that this means that there's some problem with the process itself.
Yeah, in a perfect world that lawyer will consider both sets of notes with no regard to the other set. But there is absolutely no way someone could know if he/she did or did not do this. And there needs to be a control for that.
Sure. Use different lawyers just to avoid the perception that this could happen. But IMO that's still not a violation if they don't. As I said above, the legal system has to work around that. We extend those rights and privileges to every other attorney and client, and I don't think making an exception in this case is warranted.
Unless there's some reason to actually think the officers lied other than family and friends insisting that there must have been more to the story? Is there anything?
Especially, since this case has demonstrated, any investigation that relies on their notes to determine wrongdoing is incapable of making any kind of determination, so a corrupt cop will go free. I believe, very strongly, in innocent until proven guilty. I don't believe that we should be making it easier for a dirty cop (of which there undoubtedly are) to evade repercussions by using the same legal counsel as the witnesses to his actions, who will have a vested interest in defending the department as a whole (which, for nearly all institutions, generally consists in keeping any wrongdoing from being found out).
I see both sides of this though. I agree that as a matter of policy the department should segregate the lawyers representing the two in the same way they segregate the officers themselves, but I'm not sure I'd go so far as to find some violation of law if they didn't. I'm far more concerned with the precedent this sets. Why not do the same for cases with multiple defendants? After all, it's a big pain in the **** for police investigators trying to get the truth from a group of people if they lawyer up and then are allowed to possibly coordinate their stories through a common lawyer, right? But we allow this. But police would love it if they could separate the suspects *and* not allow them any possibility to have the same lawyer represent them. Is that ok?
If not, why in one case, but not the other?