Blue Byline

A cop's perspective of the news and South Sound matters

The double-edged sword of criminal justice

Post by Brian O'Neill on Sep. 24, 2011 at 12:09 pm with 27 Comments »
December 13, 2013 8:56 am

“…and lead us not into temptation but deliver us from evil.” The Lord’s Prayer

When I was a boy reciting this prayer I took this particular excerpt to simply mean I should steer clear of trouble. But what if, like Pierce County deputies Montgomery and McNicol, your job is to steer straight into trouble?

As the recent Trib article relates, a Pierce County jury returned a guilty verdict on Friday for the two deputies accused of perjuring themselves in March 2010. Fortunately, this shameful scene is a rare event. But when it happens it is painful to watch, especially for those of us in the same profession.

The criminal justice system in which we work is an imperfect format. Cops (myself included) often criticize the process for its loopholes, limitations and one-size fits all approach. In most instances, however, we are there to see the system work well (or at least well enough).

I am operating under no more information on this case than the average reader. For myself, I can only be assured that the two deputies appeared to have been given fair treatment, were well represented and received judgment from a jury of their peers. In other words, you can’t support the system when it’s working for you and then bitch about it when it goes against you.

There is, however, that nagging question: If it weren’t for the job they were performing would these two ever have been branded a felon in our society? The answer is that no one, except for perhaps the two men themselves, can possibly know.

What I do know is that performing the duties of a police officer is not unlike the plight of Damocles. This legendary figure gratefully accepts the temporary authority of a king only to find that it comes with a sharp sword suspended over his head by thin horsehair. Too dramatic? Maybe.

But there is a heavy liability associated with the job. Since every call for service requires a reasonable decision – based on legal and procedural knowledge as well as an individual’s work ethic and moral standards – each call also holds the potential for departmental discipline, a civil lawsuit, or a criminal investigation. Not many positions come with such liabilities in the job description.

Such were the circumstances under which deputies McNicol and Montgomery labored when they took custody of a felon in possession of a firearm almost three years ago. I could suggest that, had it not been for their sworn duties,that these two men might not be awaiting sentencing for a felony conviction of perjury. Without taking on the added risks (or temptation as the Bible puts it) inherent in their authoritarian roles, they would be simply two guys living their lives.

That would be ingenuous. Like the rest of us who voluntarily swore an oath, they knew the risks. Ultimately, the jury decided that both men failed in their role to faithfully and truthfully discharge their duties.

The vocal minority, who relish the public drubbing of cops, have already taken this as an opportunity to resurrect past corruptions, such as Jankovich and Brame, two former Tacoma police chiefs whose careers (and in Brame’s case the life of his wife and himself) ended on a repellant note. But that dog, as they say, won’t hunt.

The Pierce County Prosecutor’s Office was quick to pick up on the inconsistency of the deputies statements. The Sheriff placed the two on unpaid leave, and this trial was aggressively pursued by every involved agency. In the end the system worked.

There is a reason the statue of Lady Justice has a blindfold. When the criminal justice system cuts both ways there is hope that the system actually works.

For all of us.

Leave a comment Comments → 27
  1. You say the system worked. Well, not exactly. A felon with a gun got away with it.

    Will there be any changes to the methods of judging officers’ performances? Do we know for sure that these two cops weren’t improperly trained on the use of computer database systems and the Fourth Amendment in the 21st century?

    Do we know for sure whether PCSO has an unwritten policy of aggressive use of database systems which in turn led these two cops to perform as they did?

    Does anyone care whether the policies we compel officers to follow are in fact good constitutional policies?

    The convictions can be the end or the beginning. I suppose it depends on one’s point of view.

  2. Brian O'Neill says:

    pgroup- I appreciate your question. I guess the same question–is the professional performing his or her job correctly–could be asked of your attorney, your dentist or your doctor. Like any of those other vocations, cops have ongoing professional training mandated by state law. This training, which includes the legal protocols and procedures necessary to perform the job, is done by legal experts including our own prosecutorial staffs. Also, virtually every law enforcement agency has protocol covering these issues within their respective policy manuals. As a result the only reason for failing to carry out the job correctly, as this jury decided based on the evidence, is either a matter of deceit or incompetence.

    Either option looks pretty bad.

  3. LibertyBell says:

    And two felons with two guns didn’t get away pgroup?

    A legal expert, always depends on the meaning of the word expert.

    “Since the ancient forms of action have disappeared, a broader treatment of the subject ought to be possible. Ignorance is the best of law reformers. People are glad to discuss a question on general principles, when they have forgotten the special knowledge necessary for technical reasoning. But the present willingness to generalize is founded on more than merely negative grounds. The philosophical habit of the day, the frequency of legislation, and the ease with which the law may be changed to meet the opinions and wishes of the public, all make it natural and unavoidable that judges as well as others should openly discuss the legislative principles upon which their decisions must always rest in the end, and should base their judgments upon broad considerations of policy to which the traditions of the bench would hardly have tolerated a reference fifty years ago…”
    Justice O.W. Homes

  4. LibertyBell says:

    And the September 1, 2011, opinion from our Supreme Court, sums it all up in one short phrase, about two confused law enforcement agencies;
    State v. Ericksen

    “…we will not manipulate the law to achieve a desirable policy result.”

  5. TacomaJeepJeff says:

    Perhaps. But I will say that based upon my 10 years with TPD, that the pattern of lies as normal starts at the top. TPD’s Chief(s) routinely lie to their troops, to the city , and to the public about the things they do and don’t do.

    Sometimes one worker bee is cut out of the herd and sacrificed. I wish that I thought it was the system working as designed, but it was usually the Chiefs getting rid of someone who had annoyed the stars.

    And once the target is on your back, there is no way to survive. TPD has 2 full time attorneys, whose primary job is to make sure that those selected are persecuted beyond all measure and reason. There is no way a personally funded attorney can compete with those resources.

    I do not understand why no one in the public questions that many many year long admin leave investigations conducted against those that that are currently out of favor. The local attorneys are sure aware of the pattern.

  6. dinseattle says:

    Wow, really? If you don’t like working for TPD, then quit. There are plenty of others that are out of work that would gladly take your place. Not to mention, your attitude towards the upper chelant is putting your co-workers’ lives at risk. No one likes upper management in any company. It is in every profession. Do you stay because of the benefits and your retirement? The benefits, wage, and retirement are creme de la creme. You may need to just cowboy up. You won’t find another job that pays as well and has the great benefits too. Haven’t you been watching what is happening at the State level? TPD is probably one of the only secure companies to work for right now.

  7. LibertyBell says:

    Just quit, like a few in Seattle, on their way to the big house?

    Putting your coworkers lives at risk?

    Keep Clam, where the Seatte Special aways works out well!

    http://www.thenewstribune.com/2005/10/30/367691/all-clamor-little-action.html

  8. LibertyBell says:

    CHIEF LIAR!

    Above all, they show Brame lied to his co-workers and his boss, who believed him. A few employees complained to Corpuz about Brame. Those who didn’t believed the city manager was aware of what was going on.

  9. dinseattle says:

    Wow, LibertyBell, you have issues. Nowhere in my post did I say upper management didn’t lie. It is simply a statement to TacomaJeepJeff to quit his job if he is that unhappy. You really should state your real name and address so the police don’t come to your house when you need help. Why should they waste their time and taxpayer money on you?

  10. LibertyBell says:

    I can’t figure it out either dinseattle, it seems to be a new mode of taxpayer dollars, hiring the handicapped liar on his way to the big house too?

    Issues?

    http://latimesblogs.latimes.com/lanow/2011/09/fullerton-police-chief-homeless-beating.html

  11. LibertyBell says:

    dinseattle loose a few tax dollars too?

    You know O’Neill’s Cousin, don’t ya?

    http://www.justice.gov/opa/pr/2011/March/11-crt-403.html

  12. jimkingjr says:

    If they hadn’t been cops…

    These two showed their propensity to lie their way out of trouble, rather than tell the truth. They’d be bad apples no matter what barrel you put them in. Don’t blame the job, blame the fundamental character flaw.

  13. gogoDawgs says:

    The irony lies in the decision by these officers to commit a felony, thus having their 2nd amendment rights taken away, to discover that a felon was in possession of a firearm. Under Color of Law they violated the fundamental right of this individual to be secure in his effects. I am glad to see that this particular action did not stand. However, I have personal information that the PCSO has violated the 4th amendment rights of others. I have personally witnessed the department spokesman lie about it on television. At what point does connecting the dots require a more serious investigation of TPD/PCSO?

  14. TacomaJeepJeff says:

    Dinseattle,

    “It is simply a statement to TacomaJeepJeff to quit his job if he is that unhappy.”

    Actually, I did.

  15. Brian O'Neill says:

    jimkingjr- I disagree. If you lie in just about any other work context the end result would likely be either discipline or getting canned. Only in law enforcement, where we swear an oath that can carry severe consequences if broken, is there the risk of a felony conviction for a work place lie. In addition, cops are prime targets for criminal charges in such cases because–and I wholeheartedly agree with this–we must set the example. Or be the example.

  16. Brian O'Neill says:

    gogoDawgs- Sorry, you not only missed the point but got your information wrong. The deputies were well within their rights to enter the residence, remove the firearm and take the felon to jail. I wonder how you could possibly consider the 2nd amendment rights of a convicted felon (though I do agree with the ironic nature of the deputies’ plight) to be of any concern whatsoever?

    The action against the felon did not stand because the deputies got caught in a lie. Had they simply stated “We went into the house, took the weapon and booked the felon” they would have still been on the job. And the bad guy would be in jail.

  17. Brian O'Neill says:

    Tacomajeepjeff- This job, its politics and its infighting can be extremely unpleasant. I left TPD in ’99 when morale was sinking, though for different reasons. I am sorry to hear that you feel it is still an unpleasant place to work. Best of luck.

  18. gogoDawgs says:

    If they were within their rights (4A) to enter the residence without a warrant then why did they lie about it?

    “That man’s defense attorney challenged the legality of the seizure, and a hearing was held in March 2010. At that hearing, both deputies testified they did not go into the house but let the homeowner go inside alone to get the gun and bring it to them. Tratnik theorized McNicol was afraid they’d lose the case because they didn’t have a search warrant the night of the seizure.”

    Read more: http://www.thenewstribune.com/2011/09/23/1836792/pierce-county-deputies-convicted.html#ixzz1Z0xuYIc6

  19. Brian O'Neill says:

    If you read some of the other reports you’ll hear the prosecutor stating that they were within their rights to enter the house. I don’t know what the particular exception to search and seizure was (that’s typically the nugget of information not in media reports), but it could have been a consent search, a domestic dispute with a check for weapons or something else.

    Any way you slice it, the cops made a judgment mistake.

  20. LibertyBell says:

    Any way you slice it, when your a liar and find a real judge(R) on the stand, sometime’s lets just say one of the most famous trials, ever held in our U.S. Supreme Court

    Sheriff Shipp(D), takes the stand and the lie exposed to the world!

    http://law2.umkc.edu/faculty/projects/ftrials/shipp/shipp.html

  21. If you can’t do the time, don’t do the crime.

  22. Good article. It has to be a tough job. While I am glad justice was served, and these two men who chose to lie to attempt to get a cleaner conviction, you have to feel back for their families. McNicols son was on a message board on another article, and it just hurts thinking what their families are going through. Thank you to the honest, moral, and ethical officers out there. Few more to go, but the system may be heading in the right direction!

  23. meant bad for their families.

  24. LibertyBell says:

    “No man is above the law, and no man below it; nor do we ask any man’s permission when we require him to obey it.
    Theodore Roosevelt

    Teddy’s Judge, at 203 U.S. 563, in the Confederate Sheriff and Deputies most infamous trial.

    “It is urged that the sworn answers are conclusive; that, if they are false, parties may be prosecuted for perjury, but that, in this proceeding, they are to be tried, if they so elect, simply by their oaths.”

    Sin has many tools, but a lie is the handle which fits them all
    O.W. Holmes

  25. BlaineCGarver says:

    Brian, if you could please, expain what the two thought they would achieve by the lie if they could have just gone in and got the gun and arrested the BG…

  26. Brian O'Neill says:

    I don’t believe they thought it through well enough to understand they had the option available to them. As I mentioned, it appears that the deputies either used poor judgment, poor tactics or told a lie. It’s a sliding scale.

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