Maintaining The Fantasy (Updated)

We have nothing against cops as a group here at LoS.  We appreciate that the job can be extremely difficult and often dangerous.  Still, there are times when the criminal justice system’s double standard in their favor deserves a comment or two.

Under the headline “Experts:  Bench trial paid off for Nero”, MSNBC credits smart tactical decision making by Edward Nero’s lawyers for his acquittal on charges related to the death of Freddie Gray in Baltimore.  Rene Sandler, a Maryland defense attorney and “former prosecutor”, we are told, puts it this way:

“It was a very tactical decision for Nero’s lawyers, a very smart move,” Sandler said.

They’re laying it on thick:

When only the judge hears the evidence and renders a verdict, that’s known as a bench trial, named for where the judge sits. Such a proceeding isn’t common, but there are times when defense lawyers would rather try the case based on the law, rather than appealing to a jury.

Back to Rene:

“If you have an overwhelming legal issue that better plays in front of a judge on the law, as opposed to the emotions of twelve people, you will go for a bench trial,” said Rene Sandler, a Maryland defense lawyer and former prosecutor.

A little over a year ago we alluded to the sheer obviousness of this “very tactical decision…very smart move”, when the Defendant is a cop:

Let us summarize.  You have a criminal case out of Chicago where the defendant is a cop charged with reckless homicide and the judge renders a judgment of acquittal, at trial, at the close of the prosecution’s case because the defendant was a cop and that would never happen for anyone else because the cop had fired into a crowd and the mens rea didn’t fit the facts.

From the sound of things we’d guess an acquittal is the right result here, although we are by no means a close student of this particular story.  Our only concern is when “experts” give the public a false impression of the even-handedness of our criminal justice system.  It is not even-handed.  It grossly favors police and the government generally. This has nothing to do with an “overwhelming legal issue” better playing in front of a judge; it’s about the defendant being a cop that all the other cops, and probably the attorneys prosecuting the case, want to see acquitted.  How often do cops tender an enthusiastic congratulatory handshake to an acquitted criminal defendant?

Image: Officer Nero Acquitted of all Charges in Freddie Gray Baltimore Case

The general rule for criminal defendants is that you go with a jury because the risk of the jury wrongly convicting, while substantial, is far less that the risk of the judge wrongly convicting.  But that’s not generally true when the defendant is a cop:  the cop-as-criminal-defendant doesn’t even have to run the jury risk.

The rest of us do.  That’s not even-handed.

Shame on MSNBC for misleading the public.

Update:  Here are the judge’s career highlights.  ‘Nuff said:

Career highlights: Led court’s criminal division from 2012 until January. Chaired Criminal Justice Coordinating Council for Baltimore, 2012-2014. Special litigation counsel for the civil rights division of the U.S. Justice Department, 2002-2005. Trial attorney in the civil rights division of the U.S. Department of Justice, 1997-2002. Assistant state’s attorney in Baltimore, 1989-1997




Filed under Uncategorized

9 responses to “Maintaining The Fantasy (Updated)

  1. Chris Halkides

    Why is there less risk that a judge will wrongly convict than a jury? My non expert opinion would be to suggest a bench trial when public opinion was against the defendant, but the facts were strongly in his or her favor.


  2. Chris Halkides

    Sorry, I misspoke. I meant to write why is there a greater risk that a judge will wrongly convict.


    • Well, Chris, the reality is that the bulk of lawyers and judges were political science majors in college; political science majors are overwhelmingly politically oriented and positivist-utilitarian in the worst sense of the term; and from that point of view there is almost never any reason to acquit a criminal defendant. Evidence and ‘law’ have nothing to do with it.


  3. Jessie

    Doesn’t Graham v. Connor have an awful lot to do with this? If that decision were overturned, wouldn’t we start to see at least a few more cops going up on charges for excessive force and more convicted of it?

    I know of one case where police beat a man in a wheelchair (yeah, let the “in a wheelchair” part sink in; how much of a physical threat could this man possibly have been? The officer pounded the daylights out of this guy—on camera!) DA wouldn’t bring charges because…..Graham v. Connor. The defense would whip that out and claim that the jury must apply the standard of a “reasonable officer” not just a “reasonable person.” The defense would bring in law enforcement experts to tell the jury that, if you’re a cop, well, then it’s reasonable to think an unarmed paraplegic can get the upper hand in a fight (ignore the fact that the video clearly shows the paraplegic not fighting). It would have to be experts from a different department, though, because the cop’s own department had fired and denounced him (which is rare in itself).

    Finally, the city attorney prosecuted the guy under some obscure law. Some low-level municipal charges. They get a change of venue, since everybody in the local community pretty much wants to run this dirty cop up a flagpole. So it goes to trial somewhere else…..and sure enough, they out trotted Graham v. Connor and acquitted the guy! The defense did exactly what the DA said they would when refusing to bring state charges.

    Often you have shades of gray in these cases. Things are happening fast. Did the witnesses see what they thought they saw? Did the police perceive an actual threat to their lives? The truth gets lost in the fog of war. But how much fucking clearer can you get than beating a man to a pulp when he’s in a goddamn wheelchair? Graham v. Connor!

    It’s illogical on its face, because, if anything, police should be held to a HIGHER standard due to their ongoing training and repeat POST certification, which the average “reasonable person” doesn’t have when assessing a threat to life and limb. Part of the LEO job description is dealing with society’s pains in the ass, without assuming every one of them is trying to kill you. And it’s something they do on the job over and over again, most of the time without hurting anyone.

    I just don’t think we’ll see any improvement as long as this is the standard. Sure, many judges are former prosecutors, and prosecutors have worked with police, giving the system a bias towards police as defendants and witnesses. But, still, they have the stirrings of human decency within them when presented with a clear-cut case of excessive force. It’s rare that even a chief will turn on one of his own and testify for the prosecution. But they knew they couldn’t nail the guy for it and….they were right!


    • Hello, Jessie. Nice to see you still reading here.

      Does this have a lot to do with Graham v. Connor? Yes and no. If you’re asking my opinion it has a lot more to do with practical realities.

      In the first place, it is very, very hard, comparatively speaking, for prosecutors to get convictions against police officers, even if they’re really, really trying. The police as a group, with the cooperation of a toadying media, have intentionally and very successfully tainted the jury pool and it matters. Remember that jurors are not really a representative sample of the population; by and large the pool is selected from voter lists, only about half the population. Voters are more likely to have faith in government than non-voters. Voters are more likely to be establishmentarian than non-voters. Thus jurors as a rule favor police and prosecutors in criminal prosecutions, but of course these biases get all convoluted when the criminal defendant is a cop. Given the confusion, more fundamental emotionalism will often govern, and emotionally jurors regard cops as protectors and public servants and are literally frightened to believe otherwise.

      The difference between jurors and judges is that the jurors’ bias is not absolutely impervious to evidence, whereas the judge’s is. That’s why you generally go with a jury when you represent a criminal defendant. It’s a tough row to hoe, but it’s not impossible.

      Anyway, a prosecutor thinking about prosecuting a cop has to take all that into account. In the usual case all these dynamics work in his favor, but they screw him up when he has to prosecute a cop. They convicted Holtzclaw in Oklahoma. And notice: it’s been reported – the media always report – but it doesn’t get the saturation you might think would attend one of the rare times a cop is convicted.

      Graham v. Connor is a good excuse to hang an acquittal, or a dismissal on motion, or a TOD on. But what really drives the outcome is the other stuff, I think.


    • In another interesting comparison regarding the Holtzclaw thing, some truly idiotic story about a “private investigator” who alleges that Jose Baez got paid by Casey Anthony with sex, and that Baez admitted to him that Casey had indeed killed her daughter is running amok in a matter of hours, with almost 50 articles and counting.

      But the Holtzclaw thing generated only ten articles in a few days. Moreover, it appears the lurid and basically preposterous Casey Anthony related claims have all been aired on major media like ABC, NBC, NY Post NY Daily News, People Magazine, and so on; whereas the Holtzclaw story appeared mostly in places like Jezebel, although a couple of major outlets had a story here or there.

      The media bias is insidious, really. You can never really accuse them of not reporting a story entirely; but they can play up a story or play a story down as it suits them.


      • Jessie

        Oh, that Casey Anthony rumor is a hoot! (If it’s not obvious, I meant I had never heard of this rumor before, not that I’d never heard of Casey Anthony before.)

        Anyway, in defense of the media, there’s only one legitimate outlet that reported it (in Miami, which is the only place it’s even marginally relevant), and their story on it is quite responsible. Then about 150 online tabloids picked it up, which I didn’t bother to read, but I can guess from a gander at the headlines.

        The Holtzclaw case got a lot of more legitimate coverage from actual news outlets. Jezebel might be the only blog that picked it up, but I don’t think the dearth of tabloid coverage on Holtzclaw can be taken as any indication of even public opinion. The story was widely covered.

        I’m much more interested in what legitimate, reliable media are doing—and, yeah, their crime coverage is usually pretty bad. Just throwing the word “allegedly” in there doesn’t mean the story presents the crux of the legal arguments or is any less prosecution-biased.

        In their defense (so to speak), defense attorneys will often decline comment, while the prosecution stages a press conference. That’s invariably going to spin the coverage in favor of the prosecution (notwithstanding the occasional defendant who has high public sympathy).

        I’d say one thing Jose Baez did really well was grab a hold of the press coverage early. Sure, the coverage was still abysmal, but rather than decline comment, Baez was out there telling the press she didn’t do it, and trying to educate the public about the legal process in general. Baez was the only thing that made that shitshow worth paying any attention to at all!


  4. Jessie

    Maybe I’m not the best test case: I’d at least heard about the Holtzclaw case before the trial, though I didn’t follow it closely. Next thing I heard, he’d been convicted. I haven’t heard about Casey Anthony until….well, just this moment 🙂

    My state doesn’t use voter rolls for jury selection. That seems really undemocratic, actually… We use driver licenses/state ID. Puts almost everyone over 18 into the pool. And the addresses are much more current than if you went off voter rolls. When people move, they HAVE to update their ID, but no one ever notifies the Board of Elections. You guys must have to send out thousands and thousands of selection notices just to get enough that don’t bounce back and the people actually show up!

    Point taken about the cops though. And there are plenty of ways during jury selection to use dog whistle-type questions that would signal you whether this is a law-and-order type who is likely to believe the cops can do wrong. Helps if they’re racist too.

    But, still, it changes the game when the question put to the jury is, “No, no, don’t think about how this looks to YOU! Don’t think about how obvious it is to YOU that a paraplegic or a 12-year-old or a person who’s already handcuffed can clearly pose no threat worth killing them over. That’s merely your civilian logic, dear juror. No, no, the law requires that you must put yourself in the mind of a ‘reasonable police officer'”—this job that seems to you unknowable, mysterious, and frankly more dangerous than it usually is.

    I’ll grant that some of that is a tendency to lionize the police, but not all. I’d give you half at most. The other half is that the jurors are REQUIRED to try to put themselves into the mindset of a job they’ve never fucking done, but to which it seems reasonable that all kinds of things MIGHT seem threatening. When reality is the opposite: A good, seasoned cop can identify a real threat from a low-threat much BETTER than the average civilian. The standard should be higher, not lower, at least for any officer with experience. For a rookie, the civilian standard would make more sense.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s