In the high profile Matlock case, ADA Opsitnick denies the defense discovery materials, claiming that the police would falsely report implicit bias tests
JULES MARSH & WILL MEYER
On April 9, 2018, during a pre-trial hearing, assistant District Attorney Bob Opsitnick responded to Attorney Dana Goldblatt’s request for implicit bias test results of two Northampton police officers. He argued to judge Patricia Poehler that if Northampton Police officers were knowledgeable of results that revealed they had an implicit racial bias, and were forced to provide those results, that they would lie in order to protect themselves.
This admission happened in the the high profile case Commonwealth v. Eric Matlock. Last August, Eric Matlock was arrested on the contested claim that he resisted arrest and assaulted a police officer. Photographic evidence contradicts the officers’ testimonies. Goldblatt is arguing for the case to be dismissed on the grounds that the officers lied to the court to get charges brought against Matlock.
Through discovery — when attorneys are able to gather relevant evidence for their case — Goldblatt requested that she be given the training materials used by the Northampton Police Department in order to determine whether officers followed or departed from their training when they responded to Matlock. One of the pieces of evidence turned over to Goldblatt was a powerpoint presentation that indicated NPD officers had taken an implicit bias test. Implicit bias tests are designed to reveal the possible racial biases of police officers. The test is taken on a computer and a random series of black and white faces flash on the screen. Officers are then asked to associate negative terms like hurt, evil, agony and failure with the black faces and positive terms like love, joy, peace and happy with the white ones. In the other part, the qualities are switched, with the black faces getting the good terms and the white faces the bad ones. The participant’s reaction time is measured and constitutes evidence of “implicit bias” against a certain group. If the test results of Dzialo and Delano showed that they were biased against black men, this could be used as evidence to argue that they acted on that bias when seizing Matlock.
After learning from the third party that administered the test that NPD officers had taken the implicit bias test on their own time — they were given a link to complete it online — Goldblatt discovered that there was no record of what the test revealed about the officers’ implicit bias. Rather, Goldblatt found that the only indication of the test results, to the best of her knowledge, are what the officers remember.
The Shoestring was able to obtain a thirty-five minute audio recording of the pre-trial hearing, in which Goldblatt, assistant district attorney Opsitnick, and the judge discussed whether information stored in officers’ minds was indeed discoverable material.
After establishing that what cops know is valid discoverable material, Opsitnick said that information obtained from the officers’ own knowledge of their test results would be “not trustworthy.” Opsitnick offered a hypothetical answer to the hypothetical question of what would happen if an officer was asked about his test results. “I don’t believe that officer is going to tell me what his results were, ’cause he’s not going to openly say that he was biased—that he was found to be totally biased.” He elaborated that “If an officer is biased, and found out to be biased, I don’t believe that officer is going to be forthwith with us.” And concluded by turning the tables, saying that “And if [the officer] was found to not be biased at all, I don’t believe the defense council or defendant would believe the response.”
In what could be generously interpreted as a helping of radical transparency from a powerful law enforcement official, Opsitnick implied that police are not reliable witnesses.
But one sentence after saying that the police witnesses wouldn’t tell the truth and even if they did that the defense wouldn’t believe them, Opsitnick quickly pivoted: he suggested that police departments granting information about implicit bias test results is a “catch 22” because making this information available to defense attorneys would open a huge “can of worms” around the the country.
Opsitnick is far from the first person — even in law enforcement — to observe that cops are not always truthful. “Every lawyer who practices in the criminal courts knows that police perjury is commonplace,” Irving Younger, a former New York state criminal court judge, US attorney and NYU law professor wrote in The Nation in 1967. “And even if his lies are exposed in the courtroom, the policeman is as likely to be indicted for perjury by his co‑worker, the prosecutor, as he is to be struck down by thunderbolts from an avenging heaven.”
The New York Times did a big expose on the phenomenon known as ‘testilying,’ when police officers commit perjury, earlier this year. They were able to confirm at least two-dozen instances when police officers lied under oath since 2015, which the Times estimates is “only a fraction” of the actual total. Similar investigations have taken place in other cities like Baltimore and Chicago, and have likewise exposed that police perjury persists. Even in the age of body-worn police cameras and civilian cell-phone footage, police are still able to fib, and are rarely held accountable for lying.
Further, as the Assistant District Attorney, Opsitnick has a great deal of power in how he brings the Commonwealth’s case against Matlock. By admitting that his police witnesses are “not trustworthy,” Opsitnick demonstrated that he doesn’t expect sworn law enforcement officers to tell the truth under oath. Instead, he makes the case that police would absolutely lie to protect themselves. He reveals the malleability of his argument; all that matters is that his police witnesses would do the right thing, which according to him, in this instance, would be to lie.
As the Matlock case continues, if the defendant has any chance of having his charges dropped, it will be due to the photographic evidence that contradicts police testimony of what happened — not because police officers decided to tell the truth.