Seven police officers sat behind me as I questioned one of their colleagues in Judge Goodhair’s courtroom. Witnesses in a case are normally excluded from the courtroom when another witness is testifying, so I knew that these seven other cops were here to get a search warrant signed by Judge Goodhair. In the past, I have seen officers enter Judge Goodhair’s chambers with a thick stack of affidavits and then leave, warrant in hand, in far too little time for him to have read that stack of materials. Word had traveled quickly within the Santa Asphalt police department.
The officer who sat on the witness stand had been called to testify at a motion to suppress evidence for violations of my client’s Fourth Amendment rights. I did my best to piece together the officer’s story. In the early early morning–about 2:00 AM–neighbors reported a drive-by shooting, the target being my client’s home. At 10:30 AM, the Santa Asphalt Police Department decided to respond in force to this very urgent situation. Out of grave concern for potential gunshot victims, the SAPD ordered my client and his two roommates to walk backwards out of the apartment one-at-a-time, each with their hands on top of their head. Each was then handcuffed and put in the back of separate squad cars. The SAPD’s continued search for gunshot victims took them into the back corner of my client’s sock drawer, where they found 50 pills of MDMA in need of immediate medical assistance.
My opposing counsel was maybe two years out of law school. Every important decision about the case thus far had been made not by him, but by his supervisor in the narcotics unit of the district attorney’s office. He was a nice kid, and I knew that he couldn’t just come out and say that his office needed to keep their conviction rates up in order to continue receiving grants from the United States Department of Justice, and that was why he simply couldn’t let my client do rehab instead of jail time. But he was perfectly pleasant and always memorialized the discovery that he had given me thus far in writing. I played along when he explained that he couldn’t give me what I had asked for in way of plea bargain because it was “too serious a case.”
I’m still not sure if he understood that he was being tasked to defend the SAPD’s behavior as a perfectly reasonable reaction in the context of a possible emergency medical situation.
With a premise so absurd, could the final part of my cross-examination of this officer not be? I resume my questioning:
Q: Officer, you testified that you believed that the clothing in the dresser was men’s clothing, correct?
Q: And you testified that you believed this based on your “training and experience.”
A: Yes, that’s right.
He just couldn’t help himself.
“Training and experience” is one of the things that an “expert witness” can rely upon to testify to her “expert opinion” and have that opinion weigh as evidence in court. I assume this officer learned that in one of the many trainings the District Attorney’s office gives to local police agencies. From what I can infer from the testimony of 70% of the police officers in my jurisdiction, those trainings teach police to simply sprinkle the phrase “based on my training and experience” over whatever speculative bullshit they feel like spouting in order to turn their guesswork into admissible evidence.
This works most of the time, but not today.
Q: Can you describe for us the training that you had in the police academy on the defining features of men’s clothing.
A: Can you repeat the question?
Time bought for the cop to think of his answer
Q: When did you learn in the police academy how to identify men’s clothing?
Same question, different phrasing; let’s see how quick on his feet this guy is
A: Well, we had many trainings where senior officers would dress in civilian clothes and pose as suspects. They would wear men’s clothes or women’s clothes, depending on whether they were male or female. And so I got to see what clothing would be men’s clothing or women’s clothing.
Q: So these trainings were not actually ABOUT the nuances of gendered clothing items?
Q: Was there a test you had to pass at the end of it?
Q: Are you a member of any organizations devoted to forensic clothes typing?
A: Uh, no.
Yes, yes I did make this man answer these questions on the record before he was excused from the stand. Tee hee.
I looked up to the bench and I knew I had won–there was no way for Judge Goodhair to rule that the warrantless search of my client’s home was related to a potential medical emergency, not when the responding officer (the men’s clothing expert) responded to my client’s home 8 hours after the shooting, pausing to collect and photograph shell casings along the way to my client’s door. Judge Goodhair was going to have to throw out a whole bunch of hard-earned dope in front of a room full of cops, many of whom were there for his rubber stamp on search warrants of their own.
Judge Goodhair granted my motion and threw out the evidence. I reassured my client that yes, his case was dismissed and no, he would not have to drug test any more. My client was relieved to know it suddenly didn’t matter anymore whether the probation department’s urine tests could detect bath salts. The opposing counsel began to explain to his officer why the evidence had been thrown out. The other officers remained impressively poker-faced. A private defense lawyer sitting in back gave me a thumbs-up. I noted that it was only March, and that I might have just gotten my year’s worth of external validation in one afternoon.
And I remembered that sometimes a court of law can also be a court of justice.