Accountability, Memory, and the Dallas Police Shooting of Bobby Bennett

If you work in criminal justice long enough you see situations in which rules are broken often. Defendants break rules and face the unbridled wrath of the criminal justice system (which seeks to take their money, time, and sometimes freedom). But what happens when the Government breaks rules? More often than not, the Government changes the rules so that they don’t get caught again.

DPS is a good example. The “scientists” at DPS are notorious for rewriting the breath test guidelines whenever the rules become too burdensome or difficult. That is, whenever the system can not clear the embarrassingly low hurdles it sets for itself to insure credibility, it moves the goal posts. Rather than trying to say, quit breaking rules, the Government forgives itself and moves on. It’s similar to the “harmless error” analysis that our pro-conviction authoritarian judicial activist appellate courts have taken. The Defendant makes a mistake and pays with his freedom, the Government violates the Constitution and it’s “no harm no foul” (with former prosecutors deciding what “harm” is”). The only truly accountable actor in society today is the individual, the Government need not be bothered by pesky things like laws, rules, or the Constitution. But I digress.

The latest example comes from the Dallas Police Department. Bobby Bennett is mentally ill and his mom called the cops for help (a larger issue we will skip is the intersection of the mental health and criminal justice system). The shooter, DPD Officer Cardan Spencer, lawyered up and waited to give a statement about what happened (even cops know not to talk to cops if you are suspected of possible wrongdoing). Meanwhile Spencer’s partner at the scene, Christopher Watson, gave a statement that said Bennett “aggressively approached” Spencer with a knife. Bennett was arrested and charged with aggravated assault.

What Watson didn’t know was that a security camera caught the whole incident on tape and it showed that the Bennett never approached Spencer. But for this tape another innocent man would have been sent to prison. What was Watson’s punishment for lying about this and nearly sending an innocent man to prison? A 15 day suspension for “making false statement”. Wow, that will show him. Way to be tuff on crime guys. Question- Why isn’t Watson being prosecuted for filing a false report? Anyone? Anyone? Bueller?

So what did Dallas Police do in the wake of yet another scandal? Try to get their employees to be more truthful? Work to end the blue code of silence that may have facilitated Watson’s behavior?

Of course not. This is the Government. They put in a new policy to give officers days to think about a shooting before making a statement. That way if their first instinct is to lie they can wait and see if they will get caught by video first. Awesome! From DMN-

Any Dallas officer involved in a police shooting — whether the officer fired a weapon or witnessed the gunfire — will now have the right to remain silent for 72 hours under a new department policy.

And even before they give a statement about the shooting, the officers can watch any available video before they give a statement.

Previously an officer who witnessed a shooting typically would have been required to give a statement to police investigators within hours of the event. And the officer who fired, while not required to speak right away, typically did so. The new policy now requires the firing officer to wait at least three days before giving a complete statement to investigators.

What’s more interesting is that some guy claiming to be a police memory expert says that you probably  should not believe the recollection of a police officer after a traumatic event (ATTENTION JURORS!).

Alexis Artwohl, a nationally known behavior consultant for law enforcement agencies, said studies show officers need rest before they can accurately recount traumatic events.

“They are not passive observers watching something from an easy chair,” she said. “They are at the scene where life-and-death decisions are being made, and they’re an integral part of it. So of course they are going to be impacted.”

Brown said in his email that the science was “fairly conclusive.” He also said at an October news conference that he experienced memory problems when he was shot at once.

Fairly conclusive science? That means if the State calls him he can testify for sure, if the Defendant wants to use him, maybe not. Remember, this is Texas where we let dogs testify as experts for the State if means we can convict someone.

I can see situations in which a defendant uses this expert to some effect. I find it convenient this is being thrown out now to help out the liar, Watson, instead of say, to help a Defendant. That is, I’m not sure this memory expert would have shown up to defend Bobby Bennett if this video had never surfaced. (Trivia question- If the police knew about this expert, and knew that officers have difficulty remembering traumatic events, is that Brady material?)

If we  are going to accept this idea about officer memory and recall it will have far reaching implications. The entire criminal system rests on the assumption that officers always tell the truth and that they have amazing memory and recall. There are very few situations outside of trial in which defendants ever get to question an officer about an event. Judges can rule on motions in criminal cases by just reviewing police reports, and guess what, until Watson was caught lying every judge, prosecutor, and probably juror assumed everything he said was the truth. So let’s go both ways with this. Let’s admit that not only do officers not have perfect memories, that some will lie to protect themselves and their friends. To protect the public against this risk we need to increase the opportunities for confrontation of officers and rely less on unverified police reports.

As for the traumatic event hurting memory theory I have to say that rings true with me. I was attacked by a dog that I thought was Cujo pit bull from hell, but it turned out to be a mix breed lab. I know that adrenaline can hurt recollection and make details difficult to remember. I’m glad to law enforcement catching on to this theory and realize it applies to them.

This traumatic event impairs memory theory could impact other cases as well. Take family violence cases, if we can’t trust officers memory of traumatic events how we can trust those who got in a fight with their spouse? People are people are traumatic events are traumatic events.

Now is this why Watson completely made up the “aggressively approached with knife report”. I’m skeptical the police suspended him for “making false statements” not “having a bad memory.” I’m more likely to believe that details are negated by memory, but creating a whole new narrative seems less likely.

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