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From Pillar to POST

The Massachusetts Peace Officer Standards and Training (POST) Commission recently released data regarding officers who have faced disciplinary action. This public shaming is the most recent approach to “police reform” in an attempt to build trust between the residents and their local police. While the thought is there, it’s not exactly taking a knee. Is a public recognition that some officers have participated in conduct unbecoming enough to build trust? Let’s walk down memory lane and see if we can find out.

On March 30, 1934, a white Mississippi planter named Raymond Stewart was killed. Three Black tenant farmers were arrested. All three were tortured mercilessly by law enforcement officials in order to obtain confessions from them. One of these men was hanged by the neck, taken down and then hanged again and taken down and tied to a tree and whipped – all the while denying any involvement in the homicide. The other two were arrested, ordered to strip, secured to chairs and whipped to the point that they could barely walk, and neither could sit. All three of these men, subjected to unspeakable brutality at the hands of law enforcement, ultimately “confessed” to Stewart’s murder after days of this prolonged enhanced interrogation. These “confessions" were presented to a Grand Jury who indicted them on April 4, 1934; they were arraigned that night. At their arraignment, at least one man offered to plead guilty which was denied by the judge; none had attorneys and wondered aloud what help a lawyer could be to them.

The generosity of the state of Mississippi would not allow these men to go without the assistance of counsel and so assigned attorneys then and there and set trial for the following day. All three were tried for murder on April 5, 1934. All three of these men took the stand and told the jury about the torture that preceded their “confessions”. Their wounds had not even scarred over at this time including rope burns on the neck and likely bleeding through clothing. No one denied the sadistic cruelty – the supervising law enforcement agent averred that the men were beaten, but, “[n]ot too much for a negro; not as much as I would have done if it were left to me.” All three were convicted on that same day and sentenced to death. The high court of Mississippi upheld the convictions and did not seem to have a serious problem with the manner and means of extracting these “free and voluntary confessions” which amounted to the only evidence against these men.

The case made it to the Supreme Court of the United States who disagreed with this conclusion in a unanimous decision noting that it was, indeed, a violation of due process of law to brutalize another human being in order to obtain a confession stating,

It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process…

The trial court knew that there was no other evidence upon which conviction and sentence could be based. Yet it proceeded to permit conviction and to pronounce sentence. The conviction and sentence were void for want of the essential elements of due process, and the proceeding thus vitiated could be challenged in any appropriate manner.

Brown v. Mississippi, 297 U.S. 278, 285-287 (1936).

All three men would later plead nolo contendere rather than face another jury. All served some jail time. As far as I can tell, the law enforcement agents were not charged with any wrongdoing; the prosecutor went on to become a United States Senator.

Courts have determined that when police misconduct occurs, the penalty should be to exclude tainted evidence from trial rather than punish law enforcement. This is true when it involves coerced confessions as happened with Ed Brown, Henry Shields, and Arthur Ellington in 1934. It is true when the confession is from a 19-year-old mentally disabled boy who was held for days, denied access to his family, beaten every one of those days, placed on display for repeated “show-ups”, and fed nothing but bologna sandwiches. After he became violently ill causing him to be transported to the hospital, he was then brought back for more questioning and confronted with co-defendants who accused him of murder. He then agreed to a confession and was subjected to additional interrogation by both police and prosecutors. The state court did not believe his will was overborne and therefore allowed the confessions in evidence and the conviction to stand. This defendant served 25 years before the Supreme Court of the United States pointed out the error of this conclusion. Reck v. Pate, 367 U.S. 433 (1961). Officers had, by that time, likely retired with pensions.

It is true when the accused is a 15-year-old boy in Ohio accused of killing the owner of a candy shop and then questioned for hours without being informed of his rights, beaten by the police, and shown the written confessions of his alleged cohorts. This child confessed before being able to talk to his mother and lawyer, both of whom pleaded with the police to see him. Ohio courts had no issue with this scenario, but the Supreme Court ruled the means of obtaining the confession to be a due process violation. Haley v. Ohio, 332 U.S. 596 (1948).

It is true when the coercion is less messy but equally torturous as in the matter of L.D. Harris in South Carolina. Mr. Harris had the misfortune of a frustrated police force seeking, and failing to find, the killer of Mr. and Mrs. Bennett. Despite not matching Mr. Bennett’s dying declaration of his killer, Mr. Harris was detained a few months after the homicides and subjected to endless hours of interrogation in a stifling hot cubicle without access to counsel or family, all the while denying involvement in the crime. In his despair, Mr. Harris actually accused another man of the crime. Continually held without access to the outside world, the police then threatened to arrest Harris's mother for handling stolen property. Upon this threat to his family, Mr. Harris “confessed” to the murders. The conviction was upheld in South Carolina and only reversed by the smallest of margins by the Supreme Court of the United States. Harris v. South Carolina, 338 U.S. 68 (1949). No word on discipline for law enforcement.

It is true when the abuse by law enforcement involves the warrantless forced entry and ransacking of a home, including looking through personal papers and photographs. Mapp. v. Ohio, 367 U.S. 643 (1961). It is true when law enforcement blatantly denies the accused access to counsel when his lawyer is literally in the building asking to see his client. Escobedo v. Illinois, 378 U.S. 478 (1964). It is true when law enforcement holds people in custody, questions them, and fails to inform them of their constitutional rights. Miranda v. Arizona, 384 U.S. 436 (1966).

While the evidence obtained in these cases would be excluded at a new trial, in none of these cases were the officers reprimanded or fired. These rulings changed specific police practices, but there is no real evidence that they changed the culture of policing.

The eternal hope of this branch of decisional law is that if evidence obtained through misconduct would be lost, law enforcement would act better. They would respect due process of law. Despite this noble aspiration, they have never, ever worked to constrain the actions of the police. When it became clear that hanging suspects or tying them to posts and whipping them or depriving them of food and water or pummeling them, or rummaging through their belongings or refusing to inform them of their rights would be too obvious, police invented other techniques in order to close their cases.

While they have never completely given up on brutality, mostly police officers bent on abuse became corrupt in other ways. And even when publicly shamed, the culture of feeling above the law or better than or privileged has remained. It is certainly not all officers, and is not just the fault of the police – who, admittedly, have very difficult and dangerous jobs. There is plenty of blame to go around - from calling cops "heroes" to discounts on housing to special treatment in court to their very own, very different bill of rights, our society has lauded police in so many ways that it is impossible to disentangle the respect from the community from the arrogant privilege and authority that dominate the culture of policing.

In the end, it takes a certain personality to want to become a police officer. People in law enforcement must be somewhat enamored of authority and have a specific sense of "law and order". Given that, there are more police officers who are willing to go along with, and even agree with, the culture in which they find themselves than there are Frank Serpicos willing to take a bullet for telling the truth when the culture is less than ideal. Turns out, the fault is in both our stars and ourselves when it comes to police culture.

Maybe the public shaming will work this time. Maybe. But, not if past is prologue.

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