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Fighting Back - The Right Way

Over the past week, there has not only been a public outcry against injustice, but many people have begun to ask, "What can be done?", "How can we fix this?", or, "What can I do to make a difference?" While there may be many answers to these questions, there is one often overlooked tool that can be a powerful force to effect change, specifically when it comes to how people are treated by law enforcement.

It seems like once a week we have someone come into our office who tells us that they were beaten up by law enforcement despite the fact that they were not resisting, and there is often evidence to support their claim. In one such case recently, our client (we'll call him John Doe) was in custody with pending felony charges for resisting arrest with force or violence. John was so badly beaten that he was nearly unrecognizable, and his injuries could only have been caused by multiple blows to the head and face. He said that four police officers had taken him to the ground, beaten him, and repeatedly tazed him despite the fact he wasn't resisting. According to the police report, however, while apprehending John, all four officers' body cameras happened to fall off, and all four body cameras happened to turn off when they fell. It claimed that John was fighting with the officers, so one officer punched him one time in the face in order to detain him.

Most people would look at this and conclude that the officers were not telling the truth. So what happened to these officers for telling this lie which resulted in felony charges being filed against John? Absolutely nothing. There was no investigation into their actions, no discussion of whether they should be disciplined, they weren't sued, their department wasn't sued, and if all four had taken the stand and lied under oath, no one would have even thought to suggest that they should be charged with perjury. As for John? We used this evidence as leverage with the district attorney to get him a good deal, which he chose to accept to avoid the risk of doing a long time in prison.

If I share this story or one of the dozens like it, most people feel this wasn't fair to John. But, if this is in fact an injustice, who is really to blame? Sure, the prosecutor and the police deserve some of the blame, but in a lot of ways, they are just doing exactly what America is telling them to do. At some point in almost every case, I talk to my clients about taking a deal versus going to trial. To effectively advise them, I have to give them my best guess about what would happen at trial. So what did I tell John? I would have liked to have told him that there wasn't a jury in the world that would convict him on this evidence, and that taking it to trial was a no brainer. Truth be told, when I was a brand new lawyer I might have told him this. But, knowing what I know now, that would be a lie and very bad advice. What I actually told him was that there's a chance the jury doesn't buy what the prosecution and the police are selling and acquit you. However, there's also a good chance their deliberations go something like this: "Could the police have handled this better? Definitely. But no one was killed or permanently disabled. So they roughed the guy up a little? Look, the police have a tough job. We have no idea what they have to deal with on a daily basis. Who are we to dictate how they do their job? Plus, I don't believe they did this for 'no reason', I'm sure the police would not have treated John like that unless he provoked the officers or was a known criminal. I am always respectful to the police and they are always respectful to me. You know, we should be thanking the police for keeping criminals off the street rather than criticizing how they do it. At the end of the day, do we want to support the police who put their lives on the line to protect us, or take the side of this criminal who is probably sitting there thinking about which one of us he's going to rob when he gets out?" And they convict. I advised John that if he doesn't get a good offer, he has a real chance at trial, but if he gets a good offer he should seriously consider taking it.

In my experience, more often than not, when it's not social media or political rhetoric, but when there are real-life consequences when it really matters, the message is loud and clear - DON'T CHANGE A THING. Maybe you agree to a certain degree with the reasoning of the hypothetical jury. We don't want the police killing people, but who really cares if the police rough someone up a little from time to time. Especially if that person has just committed a crime, ran from the police, or is known by the police to have a criminal record? While I can understand this sentiment, I believe there are at least two problems with this view.

First, as a criminal defense lawyer, one of the things that bothers me most about the use of excessive force by law enforcement is that they are essentially forced to falsely accuse the victim of resisting a lawful arrest or attempting to assault an officer, and then to lie under oath if called to testify. I would view police brutality very differently if someone being "roughed up" was the end of it. However, the amount of innocent people wrongfully convicted because they had the misfortune of being beaten up by the police is, to me, one of the great injustices of our time. Our firm alone catches law enforcement lying all the time. While we are able to use this to help our clients, I have never seen the guilty party so much as reprimanded.

Secondly, I think it is naive to say that there is no connection between the routine use of excessive force that does not result in someone being killed and the occasional use of excessive force that is fatal. When you watch the murder of George Floyd, do you really believe that officer had never used excessive force before? That he had always treated suspects equally and fairly? That he just woke up one day and felt like killing someone? Isn't it much more likely that a pattern of routine violence eventually leads to fatalities? And when I say routine, I don't think most people realize how bad the problem is. I am shocked at how open officers are about police brutality (when they're not on the record), and shocked by how little anyone seems to care. Once I was having a casual conversation with a former correctional officer who told me that what he missed most about his job was being able to get out his aggression by beating up inmates. "Yeah, we would just say they tripped over their shackles or something, and no one ever said anything, I mean it's not like I can go home and beat up my wife," he added with a laugh. Once when reviewing footage from an in-dash camera from a patrol car we hear one officer ask another what he should do when he catches up to a suspect. The other officer responds, "Just PC 69 him". PC 69 is the criminal code for felony resisting, so, "PC 69 him" means to beat up the suspect then claim he was resisting. We've told other police officers about this and they typically laugh and admit they know exactly what that means, but can't believe the officer said it when he was being recorded. It's not exactly a well-guarded secret that police beat people up on a daily basis. Maybe people would take it more seriously if it was seen as the underlying cause of police interactions that turn fatal.

The good news is that it is actually probably easier to stop pervasive police brutality which eventually leads to fatalities than it is to only prevent the occasional killing. For the most part, we only hear about specific instances of police brutality when the police kill someone and it is caught on video. While this seems to happen fairly frequently nationwide, it is still a rare anomaly when it comes to individual counties and individual police departments. So how could police brutality be stopped within a particular county, or even a state (much of law enforcement are statewide agencies)? It might be easier than you think. The reality is that the majority of cases, both criminal and civil, settle without the need for a trial. However, despite the fact that only a small percentage of cases actually go to trial, everything that happens in a case, from what is filed to how it is resolved, is controlled by what the likely outcome would be if it did go to trial. Thus, the relative scarcity of trials does not minimize the importance of a jury verdict, but magnifies it. One single jury verdict can influence hundreds of similar cases. A handful of not guilty verdicts on cases where the officers used excessive force would send a powerful message. Prosecutors don't like to lose, and officers don't like to make an arrest, write a report, and show up to court (often multiple times), all to have it result in an acquittal. If officers knew they had to avoid using excessive force in order to get a conviction, this would be a powerful deterrent. Keep in mind that currently, as long as an officer doesn't kill or maim someone, there is almost no incentive for them to use restraint. Also, in a criminal trial, the verdict must be unanimous. So if eleven jurors vote for guilty and one votes for not guilty, it is a hung jury. While the case can be retried, prosecutors (and police) want convictions. They have little interest in getting hung jury after hung jury, thus a series of hung juries would have nearly the same effect as multiple not guilty verdicts. This means that a single ordinary person who's not a celebrity, not an elected official, not a millionaire, has the power to make a real difference.

On the civil side, one of the main reasons law enforcement (or the agency they work for) rarely get sued, is because the chances of a jury giving any kind of verdict to a plaintiff who wasn't killed or very seriously injured is slim to none. If juries started awarding verdicts to victims of police brutality and police misconduct (it wouldn't need to be millions of dollars, just enough to make it worth the time and money to bring a lawsuit) even when no one was killed or horribly injured, officers who routinely used excessive force and violated people's rights would soon become more trouble than they're worth. I believe that government agencies would take it upon themselves to discipline or fire offending officers, or pass legislation making officers personally liable for their actions.

One unavoidable aspect of this controversy is race. African-Americans have long claimed that they get treated worse by law enforcement. While I don't believe I'm qualified to weigh in on if or why this is the case, here are a few simple facts based on my own observations. While I realize this is somewhat of a small sample size, I think it is worth noting that out of all the cases I have handled that involved police brutality, the majority of my clients have been African-American, and I could be forgetting someone, but I don't remember any being white. Here is a much larger sample size and possibly a more useful observation: at the beginning of every trial the lawyers are permitted to ask questions of prospective jurors to determine if they would be a good juror for the case. In almost every case involving law enforcement, prospective jurors are asked if they have had any prior bad experiences with law enforcement. I don't know of any question that prompts such a significantly different response from African-Americans than it does from white people. This is not just based on my own experiences, but on what I have heard from many other lawyers, meaning this has played out the same way thousands of times. When it comes to African-Americans, it is rare to find someone who has not had some type of bad experience with law enforcement. Furthermore, their bad experience usually involved some type of physical mistreatment to either themselves or someone they were close to, and it is not unusual for them to have had a friend or a relative who was killed by the police. In contrast, it is equally rare to find a white person who has had a bad experience with law enforcement, and if they have had a bad experience, it is most commonly that they reported a crime and the police were slow in responding. Regardless of your opinion as to whether the black community is in fact treated worse by the police, I think it is accurate to say that the majority of African-Americans (at least the ones I've talked to) honestly believe they are not treated the same by law enforcement, and usually have good reasons why they feel this way. Maybe it's time the rest of us at least took the time to hear them out.

This is obviously a complex issue, and I won't pretend I have the answer, but I do think the impact of jury verdicts is grossly overlooked. If I have a client who I believe will be seen by the jury as one of them (the way they look, the way they dress, their background, their culture, etc.), I typically like our chances at trial, regardless of the evidence. Conversely, sometimes I feel like my client comes from a completely different world than the one the jurors live in - a world they don't know or understand. They are viewed as an outsider, which often translates into being viewed as a threat. Even if the reality is that my client has a background and lifestyle very similar to the jurors, it's not as if they have a chance to sit down with the jurors and get to know them. For the most part they're just sitting there, and if they look like an "outsider" they might be treated like one, which means we might have a problem, even if the evidence is in our favor. So what does this have to do with the cop on the street? Think about it. If an African-American is not likely to be successful at trial, either criminal or civil, then the cop is not likely to be held accountable for using excessive force or mistreating them. You can do the math on how that might play out.

So what can we do? Some say we need more laws, but the truth is there are already laws in place to deal with this. The police are not allowed to use excessive force. They're not allowed to single people out based on race. They're supposed to treat everyone equally and fairly. We could point the finger and various government agencies, but at the end of the day, it seems the buck stops with the American public. It seems that there are a lot of people who genuinely care about this issue and want to help, but I can't help but wonder, where are they when I'm picking a jury? A while back I had a police brutality/resisting arrest case. There was the police officer's version of what happened, and there was my client's version of what happened. I also had two eyewitnesses, but my client was black, both witnesses were black, and the prosecution argued that even though they didn't know each other, they were all from the same "hood" and would back each other up. The prosecution argued that the jury should believe the cop who was just "doing his job". I didn't need a jury that was biased against the police, I just needed a jury that would give my client a fair trial and listen to the evidence without automatically siding with the police. I asked a panel of eighteen prospective jurors if any of them thought it was important to have ways of keeping the police accountable, such as body cameras. Not a single person raised their hand. Great, off to a good start. I followed up by suggesting that it might help clear officers who are falsely accused. One person slowly raised their hand and hesitantly said, "Well, maybe if it actually helped the police, I'd be for it." So where are all these people who are ready to stand up to injustice even if that injustice is perpetrated by the police? Here are a few facts about jury pools: first, only about 15% of people show up. You saw that correctly. Only about 15 out of a hundred people who receive a jury summons show up. Those that show up are often rule followers who tend to lean towards favoring authority and rule enforcers. On top of that, a high percentage of them work for the government in some form (they still get paid), which further adds a law enforcement bias.

So what can we do? Show up! If jury services has your correct address, you should get a jury summons roughly once a year. Don't go in with a bias against the police. That will only ensure that you are not on the jury if you answer the questions truthfully. Be fair. Don't judge people by the color of their skin. Listen to the evidence. Don't assume the police are always telling the truth. Don't worry about which "side" you're on. Don't pick the side you have more in common with. Don't choose a verdict based on what best serves your own interest. Just. Be. Fair.

Speaking out on social media is great. Voting is certainly important. But there are few opportunities where a single person's voice makes more of a difference than when they are on a jury. This is not an exaggeration. It's not hyperbole. It's not a "you can be anything you want to be" pep talk. One ordinary person who is willing to stand up for what they believe in really can be a force for justice.