Sunday, April 27, 2008

Fifty Bullets and One Body

I'm pretty sure I don’t have the psychological makeup to be a police officer. I'm not attracted to risk and excitement, I have a relatively low tolerance for mortal danger, and I would be highly disinclined to kill another person in an ambiguous situation. It's obviously a good thing that other people are willing to take on this responsibility; I'm just glad it's not me.

I try to bear all of that in mind when evaluating cases like the one that is currently dividing New York City. You probably know the story by now: three unarmed men, all African American, left a bachelor party at a Queens strip club around 4:00 in the morning. Some sort of argument followed with other patrons who turned out to be undercover detectives. Stories differ as to what happened next, but two facts remain undisputed. Three officers fired fifty rounds from their service weapons and a 23-year old man named Sean Bell died on the morning of the day he was to be married.

On Friday, the three officers were cleared of all counts resulting from Bell's death. The judge in the case (the defendants waived jury trial) determined that reasonable doubt existed as to whether the policemen might have been justified in believing that their lives were in danger. Witness testimony was contradictory. The cops say that they were worried that Bell was using his vehicle as a weapon. Someone suggested that a shattered window in the victim's car—the result of the officers' fusillade—was mistaken for return fire. A defense expert persuaded the judge that fifty rounds could be fired so quickly that intent and premeditation were impossible to assess.

On the one hand, the standard of "beyond a reasonable doubt" that protects us all must also protect officers of the law. This is a criminal case, after all, and the rules don't change just because the alleged perpetrators wear badges. On the other hand, if you or I had killed someone under these circumstances, the only remaining question is whether our resulting prison sentence would be twenty years for second degree murder or five for voluntary manslaughter. No judge or jury on the planet would entertain the notion that our actions were justified.

But you and I are not police officers. We are expected to walk—or even run—away from deadly confrontations and to let the bad guys get away rather than risk our own lives. We are not obligated to consider the danger our adversaries pose to others, nor are we charged with enforcing any law.

Still, the Bell case presents a number of disturbing issues that somehow always seem to dominate matters such as these. First, the waiver of jury trial is problematic because many judges are drawn from the ranks of criminal prosecutors, whose predispositions may well favor law enforcement. Although that was apparently not true in the present case, it is still possible that even those judges without prosecutorial backgrounds will identify with the professionals rather than the public (more on that in a moment). Juries are valuable precisely because their members are not otherwise participants in the criminal justice system and are drawn from all sectors of society.

Second, anyone who has watched even a couple of episodes of "Law and Order" should be familiar with the extent to which police and prosecutors not only work hand in hand, but also come to depend upon one another. When district attorneys bring charges against law enforcement officers, a potential conflict of interest automatically exists. Any deficiencies in the subsequent prosecution raise questions—fairly or not—as to whether the D.A.'s office is really fighting to win, or merely going through the motions. These sorts of cases cry out for an independent prosecutor.

According to the trial judge, one of the key factors in acquitting the three police officers was the inconsistency between witness' statements at the time and their later testimony. Here's the judge's statement:

"The court has found that the [prosecution's] ability to prove their case beyond a reasonable doubt was affected by a combination of the following factors: the prosecution witnesses' prior inconsistent statements, inconsistencies in testimony among prosecution witnesses, the renunciation of prior statements, criminal convictions, the interest of some witnesses in the outcome of the case, the demeanor on the witness stand of other witnesses and the motive witnesses may have had to lie and the effect it had on the truthfulness of a witness's testimony. These factors played a significant part in the people's ability to prove their case beyond a reasonable doubt and had the effect of eviscerating the credibility of those prosecution witnesses. And, at times, the testimony just didn't make sense."

Let's parse these words for a moment. To being with, details are commonly misremembered, particularly in the heat of a violent and traumatic altercation. Further, the "interest of some witnesses in the outcome of the case" and the "motive witnesses may have had to lie" would logically apply much more strongly to the police officers—who faced prison sentences—than to those who sided with Bell. As to the demeanor of witnesses, what does that mean? Does anyone expect a polished performance from young men and women who have never before taken the witness stand, especially compared to cops who do so routinely? Reduced to its essentials, the judge's statement basically boils down to this: "I didn't believe any of these thugs."

I'm not arguing that this case was necessarily wrongly decided. Nor am I suggesting that police officers should be presumptively disbelieved; quite the opposite: they are entitled to the presumption of innocence as much as anyone else. But the fifty spent bullets and one dead body provide testimony unimpeached by issues of consistency, criminal conviction, or demeanor. Something wrong happened here and justice was obviously not served.

At the very least, even if criminal culpability cannot be proven, these officers should clearly be excused from further participation in law enforcement at any level. Having never worn a badge, I am willing (albeit reluctantly) to concede that split second judgment calls can go terribly wrong and innocent people can die without criminal responsibility on anyone's part. But I would feel better about reaching that conclusion if there was no conflict of interest in the prosecution and a jury was impaneled to weight all of the evidence without bias.

I would also be a bit more comfortable if these mistakes on the part of law enforcement--and the number of bullets fired--didn't always seem to correlate so highly with the race and social class of the victim.

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