Abstract
The first part of the analysis compares the observed actions of the officers during the investigation to the standards defined by criminal procedure, criminal investigations, police management, and supervision against the organizational accident framework and helps answer the first research question: what are the failure points in the investigation that facilitated the wrongful arrest? The second part maps the failure points during the preliminary and follow-up investigations, then tests for relationships and the prevalence of risk, which helps answer the last two research questions: are acts of commission or acts of omission more prevalent throughout the investigation? and which categories of failure present the greatest risk?
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Notes
- 1.
The crime scene technician from the City police department did not sketch the scene and did not measure distances, which would be expected in such a case.
- 2.
This was reported during the Wade hearing and attested to by the victim in a sworn declaration.
- 3.
See Ref. [1].
- 4.
(In his deposition, the second responding officer conceded that during a simulated eyewitness identification training exercise while he attended the police academy, some police recruits could not make a positive identification of an offender when a gun was present. The victim testified during the Wade hearing that he was struck twice on the head during the robbery with a piece of wood used as a weapon); see also [2].
- 5.
The 2005–2009 U.S. Census, American Community Survey, estimated the percentage of the population in the City that self-identifies their race as White is 58.3% and as Hispanic or Latino of any race is 76.4%. Those in the City who specifically self-identify as Puerto Rican comprise 28.1% of the population, which is the largest Hispanic/Latino subgroup in the City.
- 6.
See U.S. v. De Jesus-Rios, 990 F. 2d 672, 677–678 (1st Cir. 1993) (identification was held unreliable because the witness described the defendant as White and 5′2″ although the defendant actually had light brown skin and was 5′6″); Raheem v. Kelly, 257 F. 3d 122, 139 (2nd Cir. 2001) (identification was held unreliable because witness did not describe any distinctive features and testified the shooter “looked like any other person who was dressed real neat”); Cossel v. Miller, 229 F. 3d 649, 655–656 (7th Cir. 2000) (identification was held unreliable because the witness described the offender as no taller than 6′0″ and 140–150 pounds, when the defendant was actually 6′3″ and weighed 215–220 pounds at time of the attack); Tomlin v. Myers, 30 F. 3d 1235, 1241–1242 (9th Cir. 1994) (identification was held unreliable because the witness described the offender as being 5′6″–5′8″ tall with heavy build and “afro” hair when defendant was actually 6′0″ tall, thin, and had straight, shoulder-length hair); Thigpen v. Cory. 804 F. 2d 893, 896–897 (6th Cir. 1986) (identification was held unreliable because victim only briefly viewed offender once during the robbery).
- 7.
See National Institute of Justice 1999, [3] at 27.
- 8.
This testimony was derived from the motion to suppress transcript.
- 9.
The distance between the primary crime scene and the multi-family house where all three alleged offenders were located was measured using Google Maps© pedestrian mode.
- 10.
See Refs. [4, 5] (discussing how constitutional restrictions become more suspect in the face of community pressure to crackdown on crime; anyone considered “disorderly” is by definition beyond a respectable citizen and perhaps does not deserve the same level of protections against state authority, at 11); Ref. [6] (discussing the link between unconstitutional searches and the municipality’s “war on drugs” rhetoric); Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) (holding roadblocks erected by the Washington, D.C., Metropolitan Police Department in the face of increasing crime, whose “primary purpose” is to “serve the general interest in crime control,” is unconstitutional, which implies that rising crime rates alone are not sufficient to justify such a reaction from the police who cast their net wider to see who they might catch in their effort to reduce crime).
- 11.
See Packer [7] (discussing the ever-present competing interests of crime control [production] and due process [safety]); see also Ref. [8] (discussing public pressure on the President and Congress to pass crime control legislation); Ref. [9] (discussing the internal and external pressure to improve performance in the homicide investigation process); Ref. [10] (discussing how external pressure and activism are applied to a police agency to have police policies and practices added to the City agenda); Ref. [11] (where police chiefs responded via survey that they were pressured by the mayor (28%), City council members (29%) and business leaders (6%) for arrest or enforcement action; the findings revealed political pressure contributed significantly to police chiefs’ non-survival); Rampart Reconsidered: The Search for Real Reform Seven Years Later, (no date), at 27 (discussing how “…political pressure to reduce [spiraling crime] produced a distorted focus on [performance] numbers that fueled tendencies to use ‘any means necessary’” and reinforce a cultural disposition of “warrior policing” in the Los Angeles Police Department. Retrieved on April 3, 2012 from http://www.lapdonline.org/assets/pdf/Rampart%20Reconsidered-Full%20Report.pdf).
- 12.
The lieutenant’s job responsibilities are defined by the state’s department of civil service.
- 13.
- 14.
The job responsibilities for a police sergeant are defined by the state’s department of civil service.
- 15.
The distinction between an act and an omission should be thought of this way: an act is overt positive action, and an omission is overt negative action. Both acts (taking the wrong course of action) and omissions (failing to take the correct course of action) can arise from conditions such as preoccupation, deliberateness, ignorance, laziness, inattention, or forgetfulness that may be facilitated by fatigue, medical, pharmacological condition, or bias. In the case of police officers, they are duty bound to act so their omissions are tantamount to acts.
- 16.
- 17.
See National Institute of Justice [3].
- 18.
See Ref. [24] (explaining that when the actual offender is absent, the witness tends to identify an innocent person who looks more like the offender than the other individuals in the lineup).
- 19.
See generally citations at Adams [14], Hale [15], International Association of Chiefs of Police [16], Giacalone [17], Lyman [18], Sonne [19], National Institute of Justice [20], Swanson et al. [21], Geberth [22] and Hess and Orthmann [23]; (one City police department policy on preserving the crime scene vests the officer conducting the preliminary investigation with such responsibility. A separate City police policy on collecting, preserving, and processing evidence states “The initial officer to arrive at the scene of a crime, accident, or incident will be responsible for securing the scene to preserve any evidence that may be present”).
- 20.
- 21.
The photographs show that the cash register was not disturbed in any way as though someone had tried to open it.
- 22.
- 23.
This was confirmed by the audio recorded interview of the basement apartment’s occupant by a County prosecutor’s office investigator. Also, photographs submitted by the City police confirm the front, side, and rear entrances of the house.
- 24.
- 25.
See Lyman, Adams [14], Hale [15], International Association of Chiefs of Police [16], Giacalone [17], Lyman [18], Sonne [19], National Institute of Justice [20], Swanson et al. [21], Geberth [22] and Hess and Orthmann [23]; CALEA standard 83.2.6 (A written directive governs the preparation of a report by the person who processes a crime/traffic collision scene) mandating written directives for preparing investigation reports; National Institute of Justice,20 (processing the crime scene is also defined by the City police department’s policy on crime scene preservation and evidence processing).
- 26.
Deposition testimony from an assistant prosecutor, an alibi witness and a supporting detective alleged the offenders were members of the Almighty Latin King and Queen Nation, an organized Hispanic gang, but no official documents or direct evidence was offered. Although sketching the scene is discretionary according to the City police department’s policy, an armed robbery scene involving an assault and alleged gang members warrants a crime scene sketch to augment the prosecution.
- 27.
The crime scene technician submitted four photographs that show an unidentified person inside the crime scene using a tape measure to measure what appears to be the height and width of the customer counter. The measurements are unreadable, they are not referenced anywhere in his report narrative, there is no description of what the photographs are intended to explain and is not possible to identify if the photograph actually belongs to this investigation.
- 28.
A canvass (or canvassing) is a systematic process of speaking to a broad array of people and visiting residential homes and businesses in an area where a crime has occurred, along the escape route where the crime occurred, and where offenders or evidence are located to uncover witnesses, offenders, evidence, and proceeds of the crime. See Ref. [25, 26]; Geberth [22], at 86; Giacolone [17], at 57–62, 92; Lyman [18], at 48.
- 29.
See Giacolone [17], at 59.
- 30.
See McDevitt [26], at 171–172.
- 31.
See Giacalone [17], at 61; Lyman [18], at 34 (negative statements are used to confront a witness who subsequently comes forward after the investigation is completed to testify that they did see or hear something when they originally said they did not. When this occurs, the previous statement can be used to impeach the witness’s credibility and to disclose the inconsistencies in his or her testimony).
- 32.
The City’s policy states: “The initial officer will initiate the department’s Crime Scene Log as soon as possible and record the name, badge #, agency, and the time anyone enters or leaves the scene. Unless otherwise advised by an officer of supervisory rank, no one is to be permitted access to the scene until the scene is turned over to the detective.” A separate City policy directs the officers conducting the investigation to: “Initiate and maintain a chronological log recording the names, badges and commands of any police officers entering the crime scene. In addition, record the names, addresses, etc., of any civilians who may have to enter the crime scene. This log shall contain the time the persons entered and exited the crime scene…This log shall be initiated by the assigned uniformed officer and continued until conclusion of scene processing.”
- 33.
The City’s policy states: “Upon arrival, the duty detective will assume control of the scene. Although the street supervisor will maintain operational control of the scene and personnel present as per Rule & Regulation…the duty detective will be responsible for the decisions made regarding processing of the scene as per Rule and Regulation…The duty detective will carry out tasks assigned by the street supervisor that are in keeping with the detective’s role in the investigation and the supervisor’s responsibilities under Rule and Regulation…To assume command and direction of police personnel to assure the most efficient accomplishment of the police task. If a detective supervisor responds he will relieve the street supervisor as per Rule and Regulation…so that the street supervisor can return to their general patrol supervisory functions.”
- 34.
The City’s policy states: “Command of the Scene. The Watch Commander shall assign a Patrol Division supervisor to respond to the scene of a homicide, other serious crime or incident, or catastrophic event. RESPONSIBILITIES: The assigned patrol supervisor shall, upon arrival, assume command of the crime/incident scene, and shall implement crime scene precautions as outlined in the previous section for initial responding officers. The assigned superior officer shall also: (1) Assist the Detective personnel; (2) Oversee, and be held strictly accountable for, the actions of uniformed personnel at the scene, and for all non-uniformed personnel until the arrival of a Detective Supervisor; (3) Not leave the scene until properly relieved by a Detective Supervisor; (4) Once relieved, the Detective Supervisor will assume command of the crime/incident scene and be accountable for all uniformed and non-uniformed police personnel at the scene.”
- 35.
- 36.
None of the reports describe why the person was inside the store during the robbery or who he was [e.g., an employee, a visiting friend, a relative, a patron]. During deposition, a police officer said that he did not believe that the man could add anything to the investigation so he did not formally identify the man or take his statement, despite that the man heard the robbery occurred.
- 37.
See Sherley v. Seabold, 929 F.2d 272, 274–275 (6th Cir. 1991) (identification deemed unreliable because the victim suffered from memory loss); Ref. [27] (discussing the fallibility of human memory).
- 38.
See Lyman [18], at 325–326.
- 39.
Although there is no direct evidence to suggest that the crime scene was not adequately staffed, the number of tasks that needed to be completed that were not completed outnumbered the officers that were on scene.
- 40.
The lead investigator and the supporting detective testified at deposition that the lieutenant is in charge, and as detectives on the scene, they are bound to follow his orders.
- 41.
See Florida v. Bostic, 501 U.S. 429 (1991); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324 (1983); U.S. v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 2110 (2002).
- 42.
The facts weighing against the show-up that were known to the police beforehand included (1) the victim only saw the faces of two alleged offenders, not the third alleged offender; (2) the victim’s failure to adequately describe or positively identify the third alleged offender; (3) the victim’s vague and common clothing description; (4) the victim’s tentative racial description; (5) the victim’s failure to articulate any distinctive or unusual physical attributes; (6) the victim’s failure to articulate any common physical descriptors beyond sex and race; (7) the victim was ordered to the floor and told “Don’t look,” he complied so he was no longer looking at the alleged offenders; (8) the lack of containment at the secondary crime scene, which potentially allowed other persons into and out of the building; (9) the incomplete search of the secondary crime scene for additional offenders, or evidence and proceeds connecting the alleged offenders to the crime; (10) the failure to search the apartment building, where an unidentified female citizen told the second responding officer that she observed three males matching the description run inside; (11) the unsupported and tenuous connection between the alleged offenders and the vehicle [the tertiary crime scene]; (12) the lack of corroborating evidence beyond the clothing, sex, and racial description; (13) the lack of corroborating witness identification, despite one male witness seeing three people run inside the multi-family house and one witness seeing three people associated with the alleged offenders’ vehicle.
- 43.
See Ref. [28].
- 44.
The lieutenant’s praise and support for the officers suggest his loyalty to his peers over the profession. It also suggests his overconfidence in his subordinates’ actions, despite the numerous errors that were committed; for similarities involving the loyalty ethic, values, and police culture see City of New York, Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department, at 51–69 (commonly known as the Mollen Commission Report, July 7, 1994, retrieved on May 7, 2012 from http://www.parc.info/client_files/Special%20Reports/4%20-%20Mollen%20Commission%20-%20NYPD.pdf.
- 45.
- 46.
See National Institute of Justice [20].
- 47.
These routine questions comport with the basic telecommunications’ training curriculum offered by the state, specifically described in the overview of the police function and use of standard operating procedures; see also Adams [14], at 297; National Institute of Justice [20] at 13–14; Lyman [18], at 35–36 for a brief description of accepted industry practices on the police telecommunications function.
- 48.
These details do not appear in the 911 transcription.
- 49.
- 50.
The City police issued the lieutenant an oral reprimand in August 2010.
- 51.
Illinois v. Gates, 462 U.S. 213 (1983) (defining and describing the totality of the circumstances test and its use for determining whether probable causes exist).
- 52.
See Ref. [29] (discussing the importance of corroborating evidence to support a finding of probable cause); Lyman [18] at 48–49; [video evidence shows that the City police tried unsuccessfully to obtain a confession from the plaintiff. Even if they had obtained a confession, an uncorroborated confession would not have been enough to sustain a conviction, see Warszower v. United States, 312 U.S. 342 (1941); Isaacs v. United States, 159 U.S. 487 (1895); Miles v. United States, 103 U.S. 304, 311–312 (1880). Once the prosecution lost the Wade hearing, they did not have any corroborating evidence or judicially created remedies available to salvage the case, such as inevitable discovery rule Nix v. William, 467 U.S. 431 (1984); attenuated taint doctrine Nardone v. United States, 308 U.S. 338 (1939) and Wong Sun v. United States, 371 U.S. 471 (1963); or independent source doctrine Murray v. United States, 487 U.S. 533 (1988)].
- 53.
Jens Rasmussen, What Can Be Learned from Human Errors Reports? (In Duncan et al. [30]) (reviewed 200 significant event reports of nuclear power operations and found omissions accounted for 34% of “functionally isolated errors” and “other” omissions accounted for 9% of errors); Institute of Nuclear Power Operations, An Analysis of Root Causes in 1983 Significant Event Reports, INPO 84–027 (investigation revealed that 60% of “all human performance root causes” were from omissions and 64.5% of “maintenance-related activities” were from omission errors); Reason 1997 [31], at 95 (analyzed 122 maintenance lapses in a single airline carrier over three years and found 56% of errors were omissions).
- 54.
Reason 1997 [31] at 132–135.
- 55.
See Ref. [32].
- 56.
MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7–13 (2004) (stating that the prosecutor’s “…duty is to seek justice, not merely convict”); Berger v. United States, 295 U.S. 78, 88 (1935) (emphasizing “[the prosecution’s] interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done”).
- 57.
See Ref. [33].
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Shane, J. (2013). Analysis and Findings. In: Learning from Error in Policing. SpringerBriefs in Criminology(). Springer, Heidelberg. https://doi.org/10.1007/978-3-319-00041-1_6
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