The five young recruits–four of them Sheriff’s Office cops in training, one of them a Flagler Beach Police Officer–were in Circuit Court Terence Perkins’s courtroom. Four of them sat in the jury box. One of them sat in the witness box, to get its measure.
They were getting a lesson in how to behave in court by Assistant State Attorney Jason Lewis. It was a rare look at the dynamic between prosecutors and cops on the usually confidential fringes of court cases, at a time when law enforcement officers’ conduct is scrutinized at every turn and when the public’s trust in courts and cops is at historic lows.
It was an equally rare look, witnessed entirely by FlaglerLive, at how prosecutors prepare, guide and at times admonish police before they take the witness stand, since a cop’s testimony can make or break a case: it isn’t always the coziest or most natural relationship, even though they’re very much on the same side. There was not a public defender in sight.
Lewis manages the felony division of the Seventh Judicial Circuit in Flagler, Volusia, Putnam and St. Johns counties. He is the circuit’s most accomplished, most successful prosecutor, and a winner last October of a lifetime achievement award. He’s also its most candid. Purposefully, tactically unfiltered at times, he doesn’t confuse decorum with niceties. A courtroom is for blunt, uninhibited and unforgiving inquiries and judgments. Not just of defendants. Lewis was showing the recruits how.
“What’s the perception people have a police officer sometimes?” he asked them.
“Aggressive,” one of them answered without hesitation.
“Aggressive, right? And all they want to do is write you a ticket, they want to be in charge, they want to be in control,” Lewis said. He was explaining to them how they should conduct themselves in the witness stand. “But if you show while you’re up there that you’re in control, you’re calm, you’re just responding” to questions, the jury will get a less stereotypical idea. “Same thing on your body cameras. If you’re–don’t take this the wrong way–a dickhead on your body cameras, then the jury’s going to see that and they’re not going to like you. So your job is to be likable, okay?”
The recuits chuckled uncomfortably: it’s a given that they’d never heard the word “dickhead” in a courtroom before, let alone the word associated with them in a courtroom, though the word is actually among the tamest in the gallery of obscenities, profanities, slurs and abominations routinely spoken by lawyers and witnesses in court: a courtroom is also the formalized deconstruction of society’s worst, and where language takes on a clinical, calculated weight. Lewis was not using his words carelessly.
He acknowledge that there are live situations on body cameras when cops cuss as they’re faced with high-stress, sometimes terrifying situations. He might’ve had in mind the Sheriff’s Crista Rainey, the celebrated badass of the agency. “That’s acceptable in that situation but on everyday interactions or when you’re investigating, there’s no reason to be disrespectful or rude to the people out there,” he said: every recording could end up in court.
The five recruits had walked in with Sgt. Daniel Weaver and two other officers toward the end of a hearing on an animal cruelty case last Friday. They’d sat in the back of the room, watching Circuit Judge Terence Perkins preside over the proceedings, which Lewis was prosecuting, with Assistant Public Defender Bill Bookhammer for the defense. They got to see something rare: Perkins refusing a plea agreement, because it had no jail time, just probation. The judge had read the offender’s arrest report and had been incensed by the description of the conditions of four dogs who’d been neglected. He wanted 90 days in jail for the offender, but agreed to delay the decision until Bookhammer could show him that it wasn’t as bad as the arrest report showed.
When it was done, Lewis asked Perkins to give the recruits a brief overview of his courtroom. Perkins invited them up past the bar, into the jury box, with the only woman among them given the jury box. None of them said a word, looking around as if they’d never been in court before.
“I remember my first time walking into courtrooms to testify,” Weaver said. “I had no clue about approaching podium getting sworn in. We’ve done that for years,” meaning throwing recruits to the wolves without preparation. “So we just started this incorporating it so it’s not a huge shock to them, the first time.”
Perkins explained some of the basics. He talked about the still-extensive use of zoom, the elimination of in-person court reporters, and how “in the span of probably six months, we advanced about 10 years in our technology.” He told them where defendants’ holding cells are, where the jury room is (they would get to see it later), how screens all over the courtroom and in the jury box are used to display evidence, and of course how the cops themselves would take their place in the witness box to testify and comply with the rule of sequestration.
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“What that means,” Perkins said, “is that the witnesses in a case are not permitted to either see the testimony of the other witnesses or to talk to the other witnesses about their testimony, or about the testimony that they are about to or the witness is about to give.” So they’re usually sequestered outside the room until their testimony. If they’re released by the court afterward, they may then sit through the rest of the proceedings, as law enforcement officers involved in the case frequently do, especially when the verdict is rendered. “So one of the things you might want to know is when you’re leaving, are you released from your subpoena, or are you still bound to come back,” the judge told the recruits.
Perkins explained how the attorneys each get a turn at direct, cross-examination and re-direct examination. “Your only obligation when you come up is to tell the truth and answer the questions,” Perkins said. “That’s it. Pretty straightforward.” The judge then went back to his chambers, leaving Lewis in charge.
The first thing Lewis told them about was dress code. Cops have Class A and Class B dress, Class A being the very formal uniform they would wear, say, at funerals, memorials or other ceremonial occasions, and Class B being what they’d wear on patrol or in everyday duties–still a uniform, but not as formal. In felony court, it’s always Class A (Class B is OK in traffic court).
“You need to wear class A all the time because,” Lewis told them, “some of you may have tattoo sleeves down your arms or whatever. It’s becoming more and more common to accept that these days. But there are still jurors who find that offensive, no offense. But there are jurors who find that offensive or they don’t like those. So we try and make sure that we don’t allow outside views to affect those people, you know, what they want to do.”
Lewis addressed what he termed one of the most important factors in testifying: body language. A newcomer to court might notice that savvy witnesses in the witness box–seasoned cops, crime analysts, expert witnesses–look at the attorneys when the attorneys are asking questions, but then pivot and look at the jury when they answer. Rookies and children, or lay witnesses who suddenly find themselves in court and would rather be elsewhere, will look at the attorneys the whole time.
Don’t do that, Lewis told the recruits. Speak to the jury. “And look at all of them, don’t fixate on one person,” Lewis said, “because what I can tell you about the juries, they’re just like regular folks and they judge your credibility. If you’re standoffish. If you kind of make weird facial expressions, they’re going to be [turned] off and pull away.”
Lewis cited Florida Department of Law Enforcement analysts as masters of the form. They not only seamlessly and naturally pivot from facing attorneys to addressing the jury, but they do so with conversational ease, usually free of jargon or condescension–as if FDLE provides a class in addressing juries. (Condescension alone can prove deadly to a witness’ credibility in the jury’s eyes.)
As for preparation, “it is unacceptable to come into a deposition and not have read through records or watched your body camera for this incident. But I will tell you, it happens all the time,” Lewis told the recruits. It also happens in court: a jury, or anyone, can pick out an unprepared witness in the first exchanges, though before trial the State Attorney’s Office generally prepares its witnesses so as not to take chances. Even then, Lewis wants the cops to be prepared, “because it doesn’t help us to sit there watching the body camera with you and read the report at the same time. We’d rather you be prepared so we can walk through it. So I’m just telling you: if you ever want to be a detective, you want to move on, you want to be successful, you need to be prepared.”
He gave them advice on not falling into opposing counsel’s traps–being goaded, riled up, frustrated: it was then that Lewis’s spoke of the importance of staying in control and being nice guys, of not being dickheads. But he also reassured them that when their first trial rolls around, they’ll be prepped carefully, they’ll get to know one of the five prosecutors working the case. “No offense. I have five of them,” Lewis said of his attorneys. “There’s like 250 of you. So we kind of know most of you guys, but sometimes we don’t. And we may just assume that you’ve been in another trial. If you haven’t just let us know.”
But the bottom line was simple advice, similar to the judge’s: “tell the truth.”
And if there was an error in the arrest report, if a mistake was made on the job, own up to it in court and to the jury. “If you make a mistake, you just have to fess up to it,” Lewis said. Don;t argue with the lawyers. Don;t minimize the mistake or justify it. “Just be very contrite,” Lewis said. He reminded them that to make an arrest, the burden of proof of probable cause is 51 percent. To secure a conviction in court, the beyond-a-reasonable-doubt standard requires a burden of proof closer to 95 percent or above.
That means a lot of the cops’ arrests will be thrown out and not prosecuted. “You didn’t do anything wrong, but don’t get mad at us,” Lewis said. “I know some officers are like, Oh, the state Attorney’s Office, they dropped another one of our cases. We don’t drop them lightly.” But there’s no purpose in going forward on a case that can’t be won. “So don’t get your feelings hurt. You can’t. If you get your feelings hurt, you’re in the wrong place. Because you’ve got to put on your big boy and your big girl pants and just realize that you know, it’s not always going to go your all’s way.”
For a parting shot, Lewis channeled his inner Sgt. Esterhaus as he stood before the jury box: “And most importantly, just be safe out there.”
