Breaking the Blue Code of Silence

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The murder of George Flyod was tragic but watching the officers stand by and do nothing was chilling.  This is clear evidence of a deep seeded law enforcement code of silence.  They don’t interfere with or correct other officers bad behavior and they don’t inform on each other.  The code bleeds from our streets into our court rooms.  Just like the cops, the prosecutors have unchecked power to take lives in terms of years and decades.  The prevailing attitude is that a badge allows them to dole out, what in their view is justice.  Because their profession is noble, it is often held that the ends justify the means.  In other words, they don’t necessarily have to follow the law to enforce the law.  Bad actors abuse their power and knowingly engage in misconduct, depending on the “code”; other officers, other lawyers and even Judges either actively protect them or remain silent.

 

Much has been made of reforming the qualified immunity standard, which states that unless the officer is acting completely outside the color or law, he cannot be held liable.  Qualified immunity comes into play when we attempt to hold an officer of the law, court or prison liable for his bad behavior.  There is another side to the coin and that is when an officers misconduct is a contributing factor of a criminal defendants conviction.  In other words, when an officer of the courts behavior is unethical or illegal and the results of at misconduct is used as evidence, Doctrines like qualified immunity called “good faith” a “harmless error” forgive the officers misconduct because either he meant well or it would not have effected the outcome of the case.  These doctrines allow prosecutors and judges to excuse all but the most egregious misconduct.  A prosecutors misconduct can be crucial in obtaining convictions, all too often a prosectors misconduct goes unchallenged.  It’s a claim most defense attorneys refuse to make and judges avoid ruling on it.

 

David Lewen, a Federal Prosecutor out of Knoxville Tennessee is under fire for an extraordinary misconduct in a 2017 high profile trial.  Recently filed court documents reveal that AUSA Lewen permitted his witnesses to perjury themselves and then he vouched for the knowing lies, AUSA Lewen also misrepresented facts in his pleadings and he released false uncharged allegations to the media – manufacturing national sensationalism.  AUSA Lewen’s actions can only be described as self serving and a desire to win at any cost.  AUSA Lewen deliberately deprived Michael Benanti of a fair trial.

 

During trial, Benanti’s privately retained attorney, Robert Kurtz, failed to raise prosecutorial misconduct.  Benanti raised the issue in open court and Robert Kurtz refused to represent Benanti on the misconduct issue, stating “it was not appropriate at the time.”  The court ordered Benanti to represent himself on the matter, which is an example of the blue code in action.  Now the Sixth Circuit Court of Appeals (19-5805) is deciding whether Benanti had a constitutional right to counsel and whether Kurtz was conflicted in his duties.  They will also rule whether AUSA Lewens misconduct was plain error.

 

Ultimately it will be District Judge Thomas Varlan’s decision.  This will be the third time the issues are in front of him, he ignored them the first two times.  Benanti has filed several additional motions all in an effort to get Judge Varlan to provide a meaningful response and fair consideration.

 

There is a systemic misconduct, a code of silence, an unwillingness to acknowledge correct or punish bad behavior by law enforcement.  The consequences are far reaching.  As long as there is an exception of silence or assistance by other officers in covering up misconduct, people will continue to die, like George Floyd and spend their lives in prison 1:16 Michael Benanti.  We can honor the dead by supporting the living who fight in our court rooms.