If he cares enough about a case, a detective can lobby or even argue for a particular strategy. But in the end, decisions about the legal approach to a case are not his to make. From crime scene to conviction, the courthouse is the only part of the process in which the detective becomes a passive participant, a player wholly dependent on the decisions of others. A detective is there to testify and otherwise serve the lawyers in any way he can. The lawyers, meanwhile, regard that service with varying amounts of appreciation. Some prosecutors consult the investigators on evidence and presentation, asking the opinions of veteran detectives who have been through the process more often than the attorneys. Others view the detectives as little more than props and gofers, responsible for showing up on time with the right evidence and the right witnesses.
Homicide detectives are further distanced from their cases because, as witnesses, they are sequestered and therefore prohibited from attending court and listening to other witnesses. Detectives in Baltimore spend 90 percent of their court time sitting on hard wooden benches in corridors, or running bags of evidence between the courtroom and the prosecutor’s office, or chasing down a witness who’s supposed to testify in the afternoon session but hasn’t shown up, or maybe bullshitting with the secretaries upstairs in the Violent Crimes Unit. Court time for a detective is a strange limbo, a period of nonexistence that is only briefly interrupted when he is called to testify.
The stand is the last point in the process in which a detective’s expertise counts for something. In most cases, the testimony of civilian witnesses-primed and prepared by the prosecutor before trial-will produce the most critical evidence. But in every case, the testimony of the detective, concerning the crime scene, the discovery of witnesses, the statements made by the defendant, lays the groundwork for the prosecution’s case. Among prosecutors, there is a theory that says a detective’s performance on the stand can rarely win a case, but it can be enough to wreck a prosecution.
Before taking the oath, a detective who knows his business makes a point of reading through the case file. After all, it’s been six months and a lot of bodies between the arrest and trial. In 1987, a city detective-no longer in the homicide unit-responded to a prosecutor’s question with an elaborate description of the crime scene and subsequent investigation. After a minute or two, he saw that the prosecutor was making strange faces. Even the defendant looked a little curious.
“Um, wait one second,” said the detective, coming to grips with the disaster. “Your honor, I think I’m remembering the wrong murder…”
That spells mistrial with a capital M.
Many detectives prefer to take the file onto the stand, but with some judges that can be dangerous. A typical case file contains notes and reports on potential suspects and blind alleys that were eventually discarded, and a few judges will allow a defense attorney, on cross-examination, to take hold of the file and go fishing. Given an alternate suspect from a police file and a tolerant judge, a defense attorney can run for miles in front of a jury.
One detective, Mark Tomlin, makes a point of copying his trial notes onto the back of the defendant’s computerized arrest sheet. Once, when Tomlin was testifying, a defense attorney asked to see his notes and began to suggest that they be admitted into evidence. He then turned the sheet over, looked at his client’s priors, and returned it without another word.
Veteran detectives also go into court knowing the strengths and weaknesses of their cases; they can anticipate a defense attorney’s line of questioning and answer accordingly. This doesn’t mean responding with answers that are grandly deceptive, but tailoring answers so that they do the least damage. If, for example, the defense counsel knows that your witness picked his client from a lineup but failed to do so in a photo array the previous day, he’s almost certainly going to ask about that. Anticipating, a good detective will, in the course of his answer, manage to work in the fact that the array used a picture of the suspect that was six years old, that the suspect’s hair was different, that he had no mustache and whatever else can be said before the lawyer stops him from talking. Defense attorneys have now endured untold generations of slick, manipulative police witnesses; one consequence is the just-answer-yes-or-no style of cross-examination, which requires a detective to wait for the prosecutor’s redirect to fully shape his answers.
On the other hand, if a detective is on the stand and not sure just where a defense attorney is going, his answers will become cautious and a little less specific, though not inaccurate in any detectable sense. A professional witness doesn’t needlessly back himself into corners with blanket declarations and assurances, because a good attorney will then manage to produce an exception.
“Detective, you say that after Mr. Robinson was arrested for this crime, the robberies in the area of North and Longwood ceased.”
“Yes, sir.”
“Detective, may I call your attention to a police report dated…”
Experienced detectives take one other rule to the stand with them: They don’t lie. The good ones don’t, anyway, not about anything that could ever be directly contradicted in open court. Perjury can destroy a career, steal a pension, and maybe, if the lie is big enough and stupid enough, lead to some jail time. For a detective to falsify evidentiary material, to wrongly attribute statements to suspects and witnesses, carries a risk far greater than the reward. How much does it matter-really matter-to the detective if any one suspect charged with any one murder goes to prison? He does fourteen of these guys a year, a couple hundred in a career. For what reason is he going to start believing that the world ends when he doesn’t win a case? If it’s a police shooting, or if it’s someone the cop knows, then some corners might be cut, but not for something that happened in the 1900 block of Etting Street on a Saturday night last summer.
The one notable exception to the marked honesty of a good police witness, the only point in the legal process where law officers can be expected to lie routinely or, at the very least, exaggerate, is probable cause.
For narcotics or vice detectives in particular it’s become a ridiculous game, this business of establishing the correct legal prerequisites for a search or arrest. Not surprisingly, it isn’t enough to say that the suspect was a squirrel who’d been out on that corner about ten minutes too long. No, the law of the land requires that the arresting officer had the opportunity to observe the defendant operating in a suspicious manner on a corner known for drug trafficking and that upon closer inspection, the officer noticed a glassine envelope sticking out of a sweatshirt pocket as well as a bulge in the front waistband indicative of a weapon.
Yeah. Right.
Probable cause on a street search is and always will be a cosmic joke, a systemic deceit. In some parts of Baltimore, PC means looking at a passing radio car for two seconds longer than an innocent man would. The courts can’t acknowledge it, but in the real world you watch a guy until you’re sure he’s dirty, then you jack him up, find the dope or the gun and then create a legal justification for the arrest.
In homicide, where the name of the game is search-and-seizure, with affidavits written in advance for specific addresses, the PC generally has to be straight up. After all, you need the judge’s signature on the warrant just to get you inside. A detective with a talent for the written word may be able to get some weak or exaggerated PC past a duty judge, but at least he’s required to put something in the affidavit.