Should We Ever Believe the Police?

In fact checking Alice Goffman’s On the Run, I sometimes referred to police reports and interviews with members of the Philadelphia police department (as did Paul Campos in his recent article in the Chronicle of Higher Education).  These sources revealed numerous implausibilities and inconsistencies with many of Goffman’s claims, including the purported police gauntlet outside Philadelphia hospital emergency rooms; the conviction of 11 year old “Tim” for riding in a stolen car; the details of Goffman’s alleged interrogation by SWAT officers; her presence when detectives arrived at “Chuck’s” hospital bedside; as well as other incidents about which I have not yet written.  A frequent response by both Goffman and her defenders is that “the police lie” and commit other misconduct, thus rendering police sources worthless.  Because we know that police can be abusive and oppressive in minority neighborhoods, they maintain, it is only to be expected that they would cover up the misdeeds that Goffman has exposed.  Goffman herself accused me of privileging hierarchy by using “the expertise and authority” of the police to discredit her. New York Magazine columnist Jesse Singal explained his view of cops more bluntly, tweeting, “What the fuck do you think they’d say?”

In other words:  Some police lie; Lubet uses some police sources; therefore the critique of Alice Goffman is wrong.  This is an easily recognized false syllogism, to which I will return shortly.  First, however, some general comments about police credibility.

I cross examined more than a few police officers and detectives in my decade of criminal defense work, and I have read transcripts of many others.  I have continued to consult on police misconduct and wrongful conviction cases to this day.  I am not naïve about cops, and I certainly do not take their word for granted.  Even so, most of the police I encountered were telling the truth as best they could.  It is really a slander to generalize from the known incidents of misconduct to all police, everywhere, always.  Goffman had no trouble taking the word of her informants, including drug dealers and violent felons, even though experience shows that criminals lie – to the courts, to their own lawyers, and even to friendly ethnographers – all the time.

It is intellectually irresponsible simply to reject all police sources out of hand; and worse, it leads into a blind alley.  If no police officers are ever to be believed under any circumstances, then all accusations must be taken as true, no matter how unlikely.  Goffman’s defenders have painted themselves into just this corner, accepting her most questionable claims about police activity in Philadelphia because they have read about similar behavior that occurred elsewhere.  In reality, however, it is quite reasonable to ask a social scientist to meet an evidentiary standard higher than “well, it's not impossible.”

Does that mean we should always believe the police?  Or course not. Critical thinking requires skepticism of all sources, on both sides of the law.  We can, however, apply the standard tools of basic lawyering – and one hopes, concepts also familiar in social science – to determine when and under what conditions the police are likely to be trustworthy. 

After the jump, I will use On the Run as a paradigm – only because it is a convenient template for this discussion – to illustrate three situations in which even the most profound skeptic ought to be willing to have some confidence in police sources:  (1) when the police have been corroborated; (2) when the police are describing their own lawful procedures; and (3) when there is contemporaneous documentation and the police have no conceivable reason to lie.

When the police have been corroborated.  As with any witnesses, police accounts are more believable when they have been corroborated by other sources.  One of the more questionable vignettes in On the Run is the story of the brothers Chuck and Tim. In Goffman’s account, eighteen year old Chuck and eleven year old Tim were out for a drive, when they were pulled over by the police.  It turned out that the car had been stolen, and Chuck was arrested for receiving stolen property, notwithstanding his protest that he had only borrowed the car from his girlfriend’s uncle. Young Tim was also arrested, according to Goffman, and later placed on three years of juvenile probation on the charge of “accessory” to receiving stolen property.

This story is not incidental to Goffman’s theory of over-policing, as she uses Tim’s ordeal to demonstrate how difficult it is for her subjects to avoid acquiring significant criminal records at an early age.  Although I do not doubt her general point about the snares of the judicial system, these particular events could not have happened as she retells them in her book and lectures.

A current Philadelphia prosecutor (a virtual cop, in the criminal justice world) told me that the episode was indeed impossible as described by Goffman.  Even adult passengers, he said, are not charged for riding in stolen cars, because that is not a crime in Pennsylvania.  There is nothing to prosecute, he explained, because it isn’t against the law.  Perhaps Jesse Singal and others would automatically discount the word of an assistant district attorney, but in this case there is corroboration.  I also asked the same question of two former Philadelphia public defenders, both of whom agreed with the prosecutor (who would ordinarily, of course, be their natural adversary).

Both public defenders were equally dubious of Tim’s alleged charge, conviction, and probation for “accessory to receiving stolen property.”  That would never happen to an eleven year old simply for riding in the car, one of them told me.  There would have to have been proof of something more – “like maybe if the kid had popped the ignition with a screwdriver.”  And in any event, the other explained, a three year “probation sentence” would have been impossible, because Pennsylvania does not have fixed terms of probation for juveniles.  If Tim had indeed ended up on probation for three years, it would have been for continued violations far more serious than merely sitting in a stolen car.  

Goffman has refused to accept the possibility that Tim had misinformed her, insisting – quite falsely – that the Pennsylvania courts had “upheld these kinds of charges.”  The larger point, however, is that the prosecutor was fully knowledgeable about Pennsylvania criminal procedure in a way that Goffman was not.  His explanation was completely credible, and it was backed up by two public defenders.  Reflexive rejection of police and prosecution sources, in this circumstance, would only keep us from recognizing the truth.

When the police are describing their own lawful procedures.  There have been many documented incidents of police officers lying to conceal misconduct, ranging from brutality to graft.  Higher-ups have too often been complicit, facilitating cover-ups and even suppressing or falsifying documents.  There is no justification for lying by law enforcement officers, but it is easy enough to understand why they would be tempted to do it.  Those motivations – self-protection, solidarity, fear – would not ordinarily apply, however, with regard to standard, lawful procedures.  Police officials are aware of departmental routines, and for the most part they have no reason to conceal or misdescribe them.  For the purpose of determining police credibility, we must therefore distinguish between illegal or corrupt practices, which are naturally hidden (such as the Ramparts scandal in Los Angeles and many others), and those that are lawful, even if controversial (such as DUI roadblocks).

In that light, consider Goffman’s repeated assertion that the Philadelphia police routinely check patient and visitor lists at hospitals in order to apprehend those with open warrants.  She claims to have witnessed three such arrests on the same night in a maternity ward, explaining that the cops stopped in mid-sweep to tell her that they had been following their “custom,” which Goffman describes this way:

To round up enough young men to meet their informal quotas and satisfy their superiors, the police wait outside hospitals serving poor Black communities and run the IDs of the men walking inside.

Philadelphia police officials have denied the existence of such a practice, in comments both to me and to Paul Campos, describing Goffman’s story as “outlandish,” “nonsense,” and “one hundred percent false.”  Should we believe them?

Goffman’s claim is that the hospital gauntlet is a standard practice, conducted completely in public by hanging around “outside hospitals” and openly requesting IDs.  On the night of the alleged maternity floor arrests, a couple of cops evidently had no qualms about describing that “custom” to a total stranger.  Goffman herself has noted that checking visitor lists would not violate HIPAA (in this she is correct; although checking patient lists would violate federal privacy law). 

That being the case, however, why would police officials deny the existence of a publicly conducted, perfectly legal form of law enforcement?  Moreover, arrest statistics are public records.  It would be a simple matter for someone – Goffman or a friendly reporter – to confirm the relative frequency of warrant executions in hospital parking lots or waiting rooms.  Whatever one thinks of high-ranking cops, they are not morons, and it would be foolish of them to deny the existence of easily provable facts.

When there is contemporaneous documentation and the police have no conceivable reason to lie.  Trial lawyers and journalists all know that contemporaneous documentation can be the most reliable sort of evidence.  Written records, made immediately after an occurrence, can usually be given great weight, especially if there was no reason for falsification at the time.  If you want an unvarnished version what happened, without the interference of frail human memory or motivated reasoning, go back and look at the earliest written accounts of the events.  This principle applies to records from hospitals, schools, businesses, governments and – yes – to police reports, whether they support or contradict cops.

This is not to say that police reports are always accurate or truthful.  We have all seen the videos of cops abusing unarmed civilians, sometimes shooting them for no good reason, and we know they have falsified their reports in the aftermath.  Of course they did; after all, they had something awful to hide.  But that does not render every single police report a sham.  Anyone who has ever cross examined a cop understands that the first reports of an incident are often most useful, having been written for the purpose of collecting raw facts, and before there was any reason to shape the story one way or another.

On the Run concludes with Goffman’s account of the 2007 murder of her friend “Chuck,” who had been shot in the head and taken to a hospital, where he died some hours later.  She describes her vigil bedside and the callous behavior of the police investigators, who acknowledged her in the room but “rolled right past her” without asking any questions.  She could have assisted in the investigation, she says, if only they “had bothered” to ask for her help.

The police report, however, tells a different story, in which Goffman was not in the room at all when the detectives arrived.  The detectives recorded the names and descriptions of everyone who was there, and no one fitting Goffman’s description was among them.  I reached Detective Francis Mullen earlier this summer, and he was sure that he had not ignored a prospective witness.  “I am 100% certain there was NOT a white female,” he told me in an email.  (Mullen, of course, does not deny that Goffman was at the hospital, or even in “Chuck’s” room at some point, but he is adamant that he did not “roll right past” her.)

Mullen’s report was written on the same day as the incident, at a time when he had absolutely no reason to omit the presence of a prospective witness.  He could not possibly have known that Goffman would someday write a book about that particular murder.  The report therefore has what trial lawyers call the “hallmark” of reliability, having been created at a time when the detective had no incentive to fabricate or exclude anything.

Goffman’s account of the incident, however, was written at least three years after the fact, and perhaps even later.  It was not included in her dissertation, which was submitted to Princeton in 2010.  Instead, it is found only in an appendix that she added while working on the book manuscript.  She told journalist Jesse Singal that “the appendix alone took around eight months, because I went back to all the field notes and reconstructed how I'd met people and what the experience was like at different points.”

Thus, we have a conflict.  On the one hand, we have Detective Mullen’s contemporaneous report, written when he had no reason to do anything other than record what he saw and did.  On the other hand, we have Goffman’s reconstructed recollection, written at least three or four years after the events, at a time when she was working on a book that emphasizes police abusiveness and misconduct.  In these circumstances, only the most cynical cop critic would summarily dismiss Mullen’s report.

Finally.  Alice Goffman claims to have been present on multiple occasions when police officers engaged in, shall we say, unique behavior (not all of which I have included above).  According to Goffman: she was once interrogated by SWAT officers, rather than detectives; two cops relinquished control of their guns in her presence, laying them on the table in front of her; police have set up gauntlets at hospitals and obtained patient lists from emergency room staffs; she saw three men arrested in the same maternity ward on one evening, by cops who hard-heartedly snatched new fathers away from their screaming baby moms, while at the same time pausing to answer Goffman’s questions about their “standard practice” for executing warrants.

Do police officers ever violate policy and procedures?  Sure they do.  But do different cops just happen to break the rules whenever Alice Goffman is around?  You can believe that if you wish, but let's at least give some consideration to contrary information from the Philadelphia police.

 

Comments

[William D. Markle]

Ok. I am convinced. Goffman lied, at the very least failed to conduct careful research. Both are serious failings.

[SEATAF]

Ha. Nicely done, Prof. Lubet. It's absurd that you should have to argue these points, and it's even more absurd that Goffman's defenders will be unbowed, but many of us are grateful to you for the persistence.

[anon]

Ok. Let's stipulate that academia gave AG a bunch of accolades for a piece of fiction posing as "science."

Are there other examples in our culture of this problem? Shouldn't ethnographers be studying the reason that truth is playing a decreasing role in our culture (politics, especially), and looking into the reasons that the substitutes for "reasoned analysis" are reverting to the lowest forms of group association?

Steve, time to put AG in a larger context. You've made the point about her book.

[Derek Tokaz]

anon,

As a composition professor, this is something that's been on my mind a lot lately as I've been working on my syllabus for the Fall.

I think one of the main causes for people giving such little credence to the truth is that in academia we tend to see scholarship as a one-way street. I'm speaking mostly about student writing, though some effects will flow through to articles written by professors.

If you take the typical undergraduate essay, the student will write it, turn it into their professor, and then one of two things happens. (1) they get a grade back and a few comments, and that's the end of it; or (2) they get a grade back and a few comments, revise the paper slightly (mostly line edits, nothing major) and return it for a marginally improved grade. What doesn't happen is a genuine back and forth on the ideas. I've had classes, even at the graduate level, where the professor didn't even know my topic until I handed in the paper.

In this environment, you're taught to value certain things like organization, paragraph structure, emulating the sounds of academics, and getting citations in the correct format. What you aren't taught to value is getting it right.

[anon]

Derek

In legal academia, add "celebrity" ... Law profs value, above all else, "placement" and "prestige" and the judges of the content are, in a stunning reversal of what you've described, naïve, inexperienced, untrained students, who, like the profs, value "placement" and "prestige" (of the author) almost above all else.

But, I had in mind the ethnography that Lubet has been obsessing about. He has shown that it is subject to delusions, valuing a "good story" above any sense of truth (again, give AG a break here, and just consider her maturity and level of life experience, training, education etc. in undertaking her "project").

I am seriously proposing that ethnographers, rather than seeking to confirm their elitist world view by means of fictional accounts of imaginary events, should actually examine the reason that this attitude has become so pervasive.

There was a time when "truthiness" was funny. Now, not so much, as folks are generally sensing that this tactic is ubiquitous and not limited to "them."

I, for one, would be far more interested in this than the fiction of AG.

And, BTW, Steve, AD at Harvard has been speaking about "testilying" for a very long time. There is nothing new here, and there is a culture there that merits examination. I don't disagree that uninformed imagining and creative writing is not proof or evidence of anything. However, there is an issue there, as I believe you would agree?

[Derek Tokaz]

Anon,

I think Jon Stewart nailed it when he described the two primary biases in journalism. It's not left/right liberal/conservative political type biases. The biggest biases in media are sensationalism and laziness.

I suspect you'll find that holding up for ethnography, law, and any number of other fields, though with a loose definition of 'sensationalism' (such as you suggest, the desire for celebrity).

[anon]

I referred to the term "truthiness" (that was Colbert's term) not to laud or praise or even make relevant that style of "news," but rather as term to describe a belief in the "truth" of something because of one's group affiliation and "feelings" of truth.

[Nigel Paneth MD]

The component of the story that I find most difficult to credit is the accusation of hospital collaboration with police in arrests, both in emergency rooms and, even more unlikely, in maternity services. Goffman apparently refuses to name the Philadelphia hospitals, but as someone who worked for several years in large urban hospitals, including especially city hospitals, these stories do not ring true, largely because the medical/nursing culture of large city hospital would not accommodate such police violations. The largest component of staff in big city hospitals are residents of the same inner city neighborhoods that Goffman's arrestees come from. Many doctors and nurses self-select for their concern for minority health to work in large city hospitals. They spend a lot of time protecting their patients from all sorts of outside agencies, including the police if necessary. While I do know of occasional arrests by police in emergency rooms of suspects who sought care after being injured in crimes, these rare episodes are immediately around the time of the crime. I suspect that interviewing staff/directors of labor and delivery units and emergency rooms in the large Philadelphia hospitals (there are not that many) would not confirm these accusations of the kind of collusion with the police described.

[terry malloy]

HIPAA is taken quite seriously by hospital staff. My mother was a VA nurse for 40 years, and HIPAA violations were a third rail.

Running the visitor list against outstanding warrants may not implicate HIPPA, as the visitors are not likely covered as patients. However, this practice would be so strange that hospital staff would recall and likely object. I know my mother, as a triage nurse in a busy ER, wouldn't let that happen.

[Anonymous]

It's getting to the point where I feel like I'd benefit from a bulleted list of significant flaws in the book. There have been so many articles, so many updates, so many accusations -- hard to keep them straight, at this point.

[Derek Tokaz]

Looks like the show's over. An Honest Scholar^TM has weighed in and said all this is quite underwhelming. And I'm pretty sure he's an authority on being underwhelming, so you'd better listen to him.

[Tom T.]

Also consider the instances where a statement by the police would be expected but is lacking. She claims at one point that someone was shot while getting out of her car, with blood spraying across her seats. This is apparently only one line in the book, and she never comes back to this event. Was there a police report about the shooting? Was she interviewed as a witness? Was her car examined as evidence? Or did she simply flee? Some of these questions ought to be answerable, and the fact that there is no record seems like a significant gap.