Daily Archives: February 6, 2013

Lawyer Risk Management And Another Troubling Cop Incident (Updated.)

But not “troubling” for the reason(s) most people think.  If there were a national conversation, outside of a few obscure blogs (blawgs?), about the power imbalance in the criminal justice system this story would be played big all over the country.

As things stand, it will just be another squalid little tale from an upstate New York backwater, where a police officer apparently (allegedly) killed – indeed, allegedly murdered – his own son in the proverbial “isolated incident”.  The incident, while a factually extreme example, is not “isolated”.  Far from it.  It’s part and parcel of the larger problem.

It’s important to get this distinction, which sadly might be too subtle for many people:  the story here is not that the police officer abused his power; rather, the story is that a police officer could ever conceive of abusing his power in this manner to begin with.  The former is the stuff of “isolated incidents”.  The latter is intrinsically related to systemic abuse of power that trickles all the way down to the police department of Perry, New York, where the police officer in question plied his trade.

There aren’t a lot of details in the story, but it appears that the shooting death occurred more than half a year ago and there was no doubt about who had done it.  The inference, then, is that some evidence was procured in the intervening six months that led someone in authority to believe that the shooting was not an accident, as the officer had first claimed.

And without of course prejudging anything, another inference:  the evidence would have to be strong enough to convince whoever decided to prosecute that they could convict a police officer.  This being no mean feat, it’s fair to conclude that the police officer committed a major screw up if such evidence exists.

Perhaps some readers can understand how dangerous this all is:  narcissists and psychopaths with badges and guns and an inner certainty that they are invincible.  Assuming the truth of the charges against this officer, I can point once again to this, the hopefully now infamous Ashley Baker statement.  This statement is the kind of evidence that should get any criminal caught, even if the criminal happens to be a police officer.

Yet after more than 9 years, not only has the police officer/criminal not been caught, but the beloved “system” has backed him entirely and has done to his victim exactly what the cop wanted it to do.

Here’s another fair inference:  every cop in Mount Morris, New York, where this contemptible fraud and atrocity over Sephora Davis occurred, knows exactly what happened.  It’s the stuff of legend within that tiny but still way overstaffed department.  And you know what else?  Perry, where the cop who killed his son has been “working”, is right across the County line from Mount Morris, and the same officers often cross-pollinate both departments, both departments being widely regarded as depositories for cops with questionable backgrounds.

And another thing, directed to certain lawyer-bloggers who have largely acted like dimwitted simpletons in assessing some of the facts and concerns I have written about on this blog in connection with the Sephora Davis matter.  I have in mind in particular the concern over my own personal safety, and to a lesser degree my client’s, arising from the whole affair:  again, assuming the truth of the charges, this cop murdered his own son and was obviously convinced he could get away with it.  We don’t know anything about the motive, but it’s certainly a fair inference that there was one.  We know with certainty that Dana Carson (who is still a police officer) and others more or less known or unknown have and have had for 9 years a strong motive to kill me.  Under the circumstances it is not, of course, comforting that there are some and possibly many having this motive that are unknown to me.

The point being that if this personality type – narcissistic and psychopathic – which is disturbingly common among police officers (and, by most educated estimates, much more common in the Mount Morris and Perry police departments) is capable of such a despicable crime against a fellow officer who also happens to be his own child, how much risk do you think there is to an outsider who has crossed them, is a popularly despised “defense lawyer” and seems to have no friends or supporters of any significance?  How easy would it be to arrange that person’s death with no one suspecting anything?

Maybe it’s my military background, but this strikes me and I think should strike any reasonably prudent person as a real and tangible risk.  Not a probability, for those unfamiliar with the idea of “risk management”, but probability is not the earliest point at which you take steps to mitigate risk.  By the time a serious risk (such as, say, that you will be murdered) is probable you are already behind the curve in preparing to mitigate it.  Of course, there is no certainty unless and until the risk has been realized, but at that point you absolutely know what to do – or in this case you know that nothing can be done.

In other words, anyone in the kind of position I have been in who didn’t take steps to address such a risk would be very foolish indeed.  And it is fair to question the judgment of those who scoff at simple prudence in such a deadly serious context, a professional context with which they claim expertise and hard earned familiarity.  It isn’t just prosecutors that face risks to their safety as a result of their work, and it’s a far more difficult situation for defense lawyers.  Like everything is.  That shouldn’t surprise even the most foolish of the criminal defense bar.

Update:  Only a day since the Perry cop story broke and it has disappeared from most of the local news outlets.  Not here, but it’s buried pretty deep even on YNN.

Part of the reason is that it’s a difficult story to run with because, as the article indicates, the police who are charging their fellow officer are being really tight-lipped about just what evidence they have that has convinced them that it was a murder and not an accidental killing.  It had better be really good evidence:  they concede that the victim was shot only once.  And the defendant in this case is a cop, the one kind of criminal defendant that a jury is likely to acquit.

But I think the real problem is that the story “has no legs” because the narrative that cops can be criminals is highly, highly disfavored in the media, primarily for reasons of self interest, both short term and long term.

Maybe that should change.  After all, the narrative made for a pretty decent and profitable movie 20 years ago:

 

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Filed under Judicial lying/cheating, Striking lawyers, wrongful convictions