Lessons from the court-martial: applying an impartial process to police misconduct

by Erick Williams

One of the features of a well-regulated profession is a fair and effective disciplinary process. The major professions have codes of ethics and state-level boards to enforce them. In Michigan, for example, we have boards and professional codes for accountants, architects, doctors, engineers, lawyers, nurses, social workers, surveyors, teachers and other professions. The boards have majorities of professional members, minorities of public members: They enforce professional codes of conduct, and they have enforcement staffs and budgets.

We lack such a system for police officers. Other states may be similar to Michigan in this respect. The police profession has not developed a code of ethics that carries the force of law; and few, if any, states maintain structures that could enforce such codes even if they existed.

The absence of a professional ethical code makes it hard for a lay person who encounters a police officer to verify that the officer is a competent practitioner. The professional lives of police officers are regulated piecemeal by the many local police departments where they work. In most cases, complaints and grievances by and against police officers are decided by the departments that employ them.

Employment-based professional discipline is fraught with conflicts of interest. Workplaces—especially in paramilitary organizations like police departments—have chains of command that influence every decision the organization makes. Commanding officers sometimes have their own world views and their own axes to grind. They manage the workplace but cannot always be expected to serve as impartial judges in matters of professional ethics.

Conflicts of interest confound impartiality

When the accused is the judge and jury, and the accuser is departmentally subordinate to the accused, it is unreasonable to expect impartiality and fair proceedings.  The following cases explore the influence that conflict of interest can play in a police misconduct investigation.

Badalucco v. City of Auburn Hills

Officer Joan Badalucco worked road patrol in Auburn Hills, Michigan. In 1995, she saw her supervisor strike a handcuffed prisoner. After talking with fellow officers about the incident, she learned that the supervisor had done the same thing on more than one occasion. Officer Badalucco reported her supervisor’s misconduct to a deputy police chief. But instead of disciplining the supervisor, the department promoted him yet again and then put pressure on Officer Badalucco to resign. She was ultimately suspended and made to submit to psychological testing as a condition of being allowed back to work.

Officer Badalucco’s case illustrates how chains of command sometimes have conflicts of interest that make fair discipline hard to achieve. She was involved in two discipline cases before a department that arguably could not have given her a fair hearing in either case. Her complaint against her boss did not get a fair hearing: the chain of command arguably protected itself by exonerating her boss. As a defendant facing suspension, she could not get a fair hearing because the chain of command had a score to settle. There was no alternate structure in Michigan independent of the local chain of command to provide a fair hearing. Ultimately, Officer Badalucco sued the City of Auburn Hills and won. She was awarded a final judgment of $859,365, which was later upheld upon appeal.

Truel v. City of Dearborn

Officer Christopher Truel, a police officer in Dearborn, Michigan, responded to a call about a fight in a bar. Officer Truel alleged the following facts: When he got to the bar, he saw a person lying on the floor covered in blood. He also saw the Dearborn police chief and other Dearborn police officers at the bar. He was told that the police chief had been involved in the fight and had been wielding a pool cue. The police chief told Officer Truel that if he knew what was good for him, he would end the investigation and get out of there. Officer Truel dutifully stopped investigating and left the scene.

Officer Truel’s story of the fight in the bar attracted media attention and comment from the Dearborn City Council. The county prosecutor and state police were asked to conduct an investigation. During the investigation Officer Truel was called as a witness, and he agreed to testify. The investigation ultimately exonerated the police chief and the department.

Officer Truel alleged that after he testified, he was harassed and ridiculed by his fellow officers. A week after testifying, Truel found himself under investigation for misconduct; and he was taken off duty.

Officer Truel’s allegation—that the police chief used his authority as employer to protect himself by ordering Truel to stop his criminal investigation—raised a question about whether the chief behaved ethically. The chief’s professional behavior was never evaluated. When the fight in the bar became a political scandal, the county prosecutor investigated the police chief.

Prosecutors investigate violations of criminal law, not professional ethics. Criminal activity and professional incompetence are two different things, with different standards of proof and different consequences. Nobody investigated whether the chief behaved unethically because the state had no agency outside the local chain of command to investigate and adjudicate issues of professional police ethics.

Officer Truel’s allegation that he was harassed and ridiculed by his fellow officers after testifying against his chief raised another ethical issue that the department could not adjudicate impartially. The department—the alleged offender—could not also act as an impartial judge. Yet there was no agency outside the local department where Truel could have taken his harassment complaint.

The stories of Officers Truel and Badalucco follow the typical “whistleblower” scenario: a police officer complains about conditions in her department, the complaint is not taken seriously, the department exonerates itself, and in turn the department subjects the complainant to a misconduct charge. In whistleblower scenarios, the local department almost inevitably has a disqualifying conflict of interest—it is both a stakeholder and also controls the key procedural levers, and, in the end, the whistleblower is the party who ends up getting punished.

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Court martial process removes command influence and associated bias

When a commanding officer is—or appears to be—biased, the process of proving bias, disqualifying the commander and finding a replacement judge is difficult, if not impossible in police discipline cases because there is no authority outside the local chain of command that can supply a substitute judge.

Interestingly, it is easier to get a fair trial in the military. Predicaments such as those in the Truel and Badalucco cases would be unlikely in a court-martial. While both military and police work environments are characterized by strong chains of command, the military has developed tools to protect fairness that the police profession has yet to deploy. The military has recognized and named the persistent problem of “command influence” and has developed a structure and a procedure to combat it. The police profession can learn a lesson from the military in this regard. As the following case studies indicate, the importance of protection from command influence cannot be overstated.

United States v. Baldwin

Captain Holly Baldwin was an Air Force officer at Fort Bliss, Texas, who had been charged with larceny, conduct unbecoming an officer, mail tampering, and obstruction of justice. A court-martial was convened but was still underway when the commanding general summoned members of the court-martial panel to an “officer professional development” meeting. At that meeting, the general’s representative discussed various court-martial cases. He said that court-martial sentences were too lenient, that officers should always be punished more harshly than enlisted persons, and that the minimum sentence for an officer should be one year. Right after that meeting, the court reconvened, convicted Cpt. Baldwin and sentenced her to one year in prison.

The Uniform Code of Military Justice has a rule against “unlawful command influence.” The Court of Appeals set aside Cpt. Baldwin’s conviction, holding that a commanding officer engages in unlawful command influence when the commander purposefully uses a staff meeting to give instructions to the members of a court-martial panel about how to decide a case.

Decades ago the military reorganized its discipline system. Judges and lawyers were placed in a separate command headed by a high level Judge Advocate General who controls case assignments. Base commanders are allowed to file complaints and initiate courts-martial but they are not allowed to serve as court officers, and they are forbidden to put pressure on court officers. When a local commander wants to bring charges against a member of the military, the commander must petition the JAG to assign a judge. If a party believes that the assigned judge is biased—and can prove it—the JAG will appoint a substitute judge or an appellate court will order a new trial.

In police life, disciplinary matters are adjudicated in much the same way that the Royal Navy used to discipline sailors in the days of Mutiny on the Bounty. A ship captain could take offense, make an accusation, dictate a verdict, and impose punishment on the offender all by himself. In police life, the local department head is typically both accuser and judge, or in some cases both defendant and judge.

Participants in police discipline proceedings take conflicts of interest for granted because there is no way to avoid them. There is no structure in place that allows parties to demand a substitute judge from outside the local chain of command. The military example demonstrates that “mutiny-on the-Bounty-style” justice is not inevitable in the police world. The police profession could erect an independent JAG-like structure that would inject more fairness into professional discipline.

United States v. Harvey

The commanding officer of a small Marine flight squadron in Yuma, Arizona, charged Lance Corporal Jemima Harvey, with several offenses, including conspiracy, making false official statements, use and possession of LSD, amphetamine and cocaine, and communicating a threat. The commanding officer ordered a court-martial.

Throughout the trial, the prosecution characterized the officer’s misconduct as a “direct threat to the safety of the aviation community.” During closing arguments, the commanding officer came into the court room wearing a flight suit and sat in the audience.

While the defense lawyer was making his argument, he noticed that members of the court-martial panel were looking over his shoulder. After the closing arguments were finished, the judge told the defense lawyer that the commanding officer had been sitting in the back of the room, and the defense lawyer asked for a mistrial. The judge denied the motion, and Cpl. Harvey was convicted.

The Court of Appeals set aside the conviction reasoning that the commanding officer’s presence probably influenced the proceedings.

The court wrote, “… because the inherent power and influence of command are necessary and omnipresent facets of military life, everyone involved in both unit command and in military justice must exercise constant vigilance to protect against command influence becoming unlawful.”

The court warned that although trials are public, and anyone may attend, commanding officers should “give prudent and careful consideration” to the impact their presence in a courtroom might have on both the proceedings and the perception of fairness of the court-martial.

Thus a conviction was reversed and an entire trial had to be redone merely because the commanding officer walked into the courtroom. Nothing could be more different than the way complaints and grievances are handled in the police world where local commanders control the key procedural levers.

Cpl. Harvey’s case illustrates how thoroughly an organization—even an organization with a military chain of command—can enforce fairness if it adopts the right structure. The military can enforce its rule against conflicts of interest effectively, and very strictly, because it has a cadre of judges accountable to a separate command. The police profession could eliminate “mutiny-on-the-Bounty–style” justice by creating a state-level adjudicatory structure separate from local police departments with authority to adjudicate complaints and grievances.

Repeat misconduct reinforces negative public perception of police

A major shortcoming of the employment-based model of professional discipline is repeat misconduct. According to a 1981 study of police officers in Houston conducted by the US Civil Rights Commission, twelve percent of police officers attracted 41 percent of all citizen complaints. Most misconduct can be attributed to a small number of repeat offenders.

According to the New York City Civilian Complaint Review Board, in 2014, 60 percent of New York police officers had either zero civilian complaints against them, or one. Three percent had ten or more civilian complaints against them. One officer had fifty.  As with diamonds, the propensity to commit misconduct is unequally distributed.

The local employment-based discipline system facilitates repeat misconduct because it tends to cloak discipline in secrecy. Police officers who are disciplined or fired for misbehavior—but not convicted of crimes—can negotiate to keep their records secret because personnel records are widely considered confidential matters between employer and employee. When misconduct records are treated like personnel records, an officer can change jobs without having his misconduct record follow him.

In a series of articles, the Denver Post exposed the problem of Colorado police officers fired or forced to resign amid misconduct charges who find jobs in other Colorado departments. Officers negotiate with their former employers to keep their misconduct records secret. Even when they are aware of a candidate’s prior record, prospective employers overlook that information because new recruits are hard to find (given the low wages they are paid). The regulatory system at the state level is inadequate and underfunded. In April 2016, Colorado lawmakers passed House Bill 1262 that will make it more difficult for rogue police officers to gain employment with law enforcement agencies in the state.

Still, as the following case suggests, a centralized state-level disciplinary system would go far to address the problem of repeat misconduct, and further lessen the opportunities to make potentially dangerous hiring decisions.

Greg Brown was a deputy sheriff in Eaton County, Michigan. Sometime before 2014, he had been disciplined for verbally abusing civilians during traffic stops. He was instructed to videotape his traffic stops. In 2014, he made another traffic stop, and again he didn’t use his body camera.

The driver who was stopped happened to use his own phone to record the encounter; he placed it on the dashboard. When the driver asked Deputy Brown for his badge number and supervisor’s name, he apparently triggered something in Deputy Brown, who cursed, grabbed the driver, pulled him out of his car, forced him face-down on the ground, handcuffed him, and took him to jail. Deputy Brown then wrote an entirely false report about how the driver had gone berserk, causing Brown to fear for his own safety. After several warnings, Brown had felt compelled to arrest the driver.

The driver filed a complaint and brought his recording of the encounter to the sheriff’s department, but the video got lost. A sergeant in the sheriff’s department evidently helped it to disappear. Eventually, the video came to the attention of the sheriff. The video demonstrated that Deputy Brown had falsified his report: it was Brown and not the driver who had gone berserk. When the video surfaced, the sheriff began formal dismissal proceedings, though Deputy Brown resigned prior to being fired. The sergeant was also disciplined for his role in suppressing the video.

In late 2014, Deputy Brown found a new job as a Deputy Sheriff in Lenawee County, Michigan.   In 2016, Mr. Brown was the subject of another lawsuit by a Lenawee County couple who claim that he assaulted them during a traffic stop, shoving the husband’s body into the side of his car without provocation and with enough force to dent the car.

Deputy Brown’s story shows how the employment-based discipline system, confidential record-keeping, and the absence of a JAG-like structure, tend to facilitate repeat misconduct. Mr. Brown was disciplined for mistreating civilians sometime before the 2014 incident, but he was given no punishment, and no public record was made. In 2014, he repeated a similar offense and was forced to resign, but again no public record was generated, and the system allowed him to change employers freely.

In 2016 he was accused of a third similar incident on his new job.  The upshot is that civilians have been repeatedly mistreated, two police agencies have been exposed to public ridicule, an insurance carrier is facing repeated claims, and there is no credible structure in place designed to interrupt the next incident.  If a state-level agency had been empowered to monitor and adjudicate disciplinary matters, it may have corrected this problem at an earlier stage in Deputy Brown’s career.  How can the public maintain trust in a profession with a discipline system that facilitates repeat misconduct?

Changes to disciplinary procedures needed to restore public trust

The current state of discipline in the police profession is disorderly compared to the other professions. Civilians encountering police officers have no convenient way to verify their competence. The adoption of code of ethics and a strong, and independent misconduct review process is long past due.  In this day and age, in which misconduct cases are nightly feature stories, this type of transparency is imperative in restoring the public’s trust in our police officers.

 

Sources:

The Florida Department of Law Enforcement has adopted a “Law Enforcement Officer Ethical Standards of Conduct” drawn from the International Association of Chiefs of Police’s Law Enforcement Code of Ethics, available at http://www.fdle.state.fl.us/cms/CJSTC/OfficerRequirements/LE-Ethical-Standards-of-Conduct.aspx.

Joan Badalucco v Auburn Hills, 2001 WL 1699700, (Michigan Court of Appeals, 2001).

Christopher Truel v Dearborn, 291 Mich App 125 (Michigan Court of Appeals, 2010).

United States v Holly Baldwin, 54 MJ 308 (Armed Forces Court of Appeals, 2001).

Uniform Code of Military Justice, Article 37; 10 USC 837; available at http://www.ucmj.us.

United States v Jemima Harvey, 64 MJ 13, 14-31 (Armed Forces Court of Appeals, 2006).

Rob Arthur, “We Now Have Algorithms to Predict Police Misconduct. Will Police Departments UseThem?” (Five Thirty Eight, 9 March 2016), http://fivethirtyeight.com/features/we-now-havealgorithms-to-predict-policemisconduct/?ex_cid=538twitter.

US Commission on Civil Rights, “Who Is Guarding the Guardians? A Report on Police Practices,” (Washington, DC: Government Printing Office, 1981), p 166, quoted in Samuel Walker, “Early Intervention Systems for Law Enforcement Agencies,” (US Department of Justice, 2003) pp 45-46, http://www.cops.usdoj.gov/html/cd_rom/inaction1/pubs/EarlyInterventionSystemsLawEnforcement.pdf.

Robert Lewis and Noah Veltman, “Can the NYPD Spot the Abusive Cop?” (WNYC News, 5 December 2014), http://www.wnyc.org/story/can-the-nypd-spot-theabusive-cop/.

Christopher N. Osher, “Colorado Laws Allow Rogue Officers to Stay in Law Enforcement,” (Denver Post, 12 July 2015), http://www.denverpost.com/news/ci_28470805/colorado-laws-allow-rogue-officers-stay-law-enforcement.

Christopher N. Osher, “Bill Seeks to Reduce the Hiring of Rogue Police Officers in Colorado,” (Denver Post, 14 March 2016), http://www.denverpost.com/2016/03/14/bill-seeksto-reduce-the-hiring-of-rogue-police-officers-in-colorado/.

Todd Heywood, “Traffic Stop Gone Bad: Eaton County Deputy Resigns to Avoid Disciplinary Hearing,” (Lansing City Pulse, 20 April 2016), http://lansingcitypulse.com/article-13044-Trafficstop-gone-bad.html.

David Panian, “Lenawee County Sheriff’s Deputy Accused of Battery”, (Daily Telegram, Adrian Michigan, August 6, 2016), http://www.lenconnect.com/news/20160806/lenawee-county-sheriffs-deputy-accused-of-battery.



About the Author:

This article was written by Erick Williams and originally appeared in the IADLEST newsletter.  Mr. Williams is a Michigan Administrative Law Judge handling cases involving professional licensing and misconduct.  He is the past president of the Michigan Association of Administrative Law Judges.

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