Opinion: When the police blunders ….

POSTED: 09/25/13 5:55 PM

When the police blunders, judges do nothing. Thus read the headline above a piece written by Folkert Jensma on his legal expert-blog in NRC Handelsblad this week. It’s an intriguing piece, also because it sounds so familiar here in St. Maarten. But is it really true? Let’s follow Jensma’s findings for a bit.

“What happens when police officers make professional mistakes? Every now and then I see a dismissal case come by due to corruption. Usually it is about leaking information to criminals of the embezzlement of fines. This year, three police officers have been convicted for this already.

Or it is about police officers that are unfit for their profession. Selection-failure – these things happen. At the end of April a trainee-officer was sentenced to six months conditional for shooting down an unarmed motorist. After a tense chase; but still. This month an officer was fired for disproportionate violence during an arrest. The man also had a little business in counterfeit brand clothing. In June a former officer was arrested for committing an armed robbery at a supermarket, shortly after he was fired.

This type of misbehavior attracts attention. But blunders during the regular detective work often stay under the radar. The judge does not make too much of ado about it either. According to the Supreme Court he only has to impose legal consequences in extreme cases. Only when an important rule of legal principle has been violated “considerably” evidence must be voided or a case must be declared inadmissible. The public prosecutor has a wide margin – the judge turns a blind eye to a lot of things.

However, when the judge intervenes there is really something awry. On August 6 the court Zeeland/West-Brabant ruled that in a sex-case crucial police interrogations were no good. The prosecutor had admitted that the interrogations did not deserve top honors and that they were on certain points also incorrect. But the court should not let this carry too much weight.

That is of course exactly what the court did. In sex-cases there is a strict protocol for the police interrogation, in particular to prevent suggestion and to control empathy. The interrogation has to be recorded, the report has to be in the format of question and answer, and guiding questions have to be avoided. In this case the police did not record the interrogation, it related the results in its own words and it appeared to have been posing strongly guiding questions. The court ruled that it was incomprehensible that the prosecution had left this without consequences. Read: that it had wasted the court’s time with it. The court ruled that the victim statements were unreliable and implausible, the interrogation methods incorrect. The defendant was acquitted.

Would the police learn something from this? Will the prosecutor’s office be stricter with itself the next time? We do not know if and how they give account internally. The press is not wide awake either. These are short reports (Suspect sex-crime released) of they are ignored. Take this July 18 ruling from the court in The Hague. In it, a teacher in witness interrogation of the Police Academy was caught lying and manipulating of witnesses who were police officers. The serious mistakes of police and the judicial resulted here in lower punishments for the suspects. Two suspects got six months sentence reduction, another one three months. The summoned Police Academy teacher had trained witnesses “based on the documents of the criminal case on the phrasing of the answers witnesses had to give.” The court ruled this an inadmissible violation of the rules of the criminal prosecution process.

It makes witnesses match their stories, thereby making it impossible for an attorney to figure out what was seen or heard and by whom. The teacher denied according to the court that she had gone through the whole case with the group of police officers. She knew that such a practice is incorrect, undesirable and forbidden by the judge. If you then still do this it testifies of serious ignorance, the court ruled. It was prepared to accept that the teacher’s actions had been “badly thought through” and that it had not been her intention to frustrate the defense’s interests. The court also accepted that she had not acted at the instructions of the Public Prosecutor’s Office. But it remains evidently stupid, Jensma commented.

Will this teacher stand before a class at the Police Academy again this year? I asked about it, the Academy did not know the court ruling and did not know that its teachers had been taken to task in it. The matter is now under investigation.

This summer Justice Ybo Buruma wrote in the commentary in the Nederlands Juristenblad in a somewhat veiled plea to become somewhat stricter with the police. Of course he did not want to question the relaxed approach of his own criminal division at the Supreme Court. But is remains a fact that the criminal judge does almost nothing against irregularities in police investigations. Buruma referred to a plea from Vrije Universiteit professor Matthias Borgers (Delikt and Delinkwent 2012/25) for a system of general quality control for the police.

Borgers says that there is a need for an inspectorate-like authority that inventories all police neglects and mistakes in the criminal investigation process, establishes the bottlenecks, provides recommendations and eventually takes individual measures. That could be for instance the National Ombudsman, Borgers says. Citizens already have the possibility to file complaints with the Ombudsman about police actions.

That is indeed a possibility, Jensma commented, but he prefers an inspectorate with more teeth, or of course a stricter judge. The Supreme Court must back this up, and Jensma wonders whether Buruma could do something about that.

Before readers start thinking that police officers in St. Maarten collude in case they are called as witnesses to the court, we have to point out that there are at least two recent examples where it was absolutely clear that the officers told their stories independently from each other and that they did not insult the court with a pre-cooked statements.

One case was about a man who had been stopped for an impromptu traffic control. When one of the officers searched the car, he found a firearm. The motorist told the court that the officer had not asked permission to search the car. Based on the testimony of the two officers, the suspect was acquitted.

In a second case, where officers were incorrectly accused of harassing a motorist who had been caught on her cell phone while driving, the court ruled against the defendant after hearing the independent testimonies of the police officers.

It is years ago that we remember a defendant claiming he had been ill-treated by police officers. Do you want me to call the officer to testify? The judge asked him, and when the defendant said that he would appreciate this, the judge noted: “I already see him standing there, swearing to me that he did nothing of the kind.”

Which is exactly what happened, but the officer added some flavor to his statement. “If I had ill-treated you,” he told the defendant, “you would not have been sitting here. You would have been in the hospital.”

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