How Could the Jury Let That Cop Off?

King County deputy sheriff punches and kicks a juvenile on videotape, lies on his reports, gets fired, and yet two juries have failed to convict him for a misdemeanor assault on the 15 year old girl! Even stranger--the first jury votes 11-1 to convict and the second 11-1 to acquit, a total reversal.. What is going on?

To begin with, when a case is re-tried to a new set of 12 jurors, it is a fresh start even if the evidence comes out exactly the same. People can view the evidence in different ways, depending on their background and other characteristics. Here, the first case was tried in downtown Seattle and the second case was tried in Kent--the two locales for King County Superior Court. The Kent site jurors are from south King County. In the same manner, downtown Seattle cases draw only city residents and north enders. It is well known that north King County residents (including Seattle) are richer and better educated on average than south end residents. So it is likely the two jury panels had different socio-economic averages, which explains one difference in how they act as jurors and perceived the case..

Another difference is that the evidence usually does not come out exactly the same in the second trial. So it is like a fresh shake of the dice if the evidence differs enough. And certain subtleties such as impeachment with prior testimony from the first trial can effect the perceptions in the second trial. Another strong possibility is the arrogance of the prosecutor. Since he won the first 11-1, he probably did nothing to improve his hand and just replayed what he did the first time. I question whether he vigorously cross-examined the defendant, especially using the lies he told about the incident..

In fact, a big factor in the second trial, according to some jurors, is that the prosecutor "didn't prove if the force was unlawful or lawful." That is, the jury was no doubt instructed on lawful force, which sets out the law on 'self defense.' That instruction defines what is lawful force and specifically requires the prosecutor to prove beyond a reasonable doubt that the defendant was not employing reasonable force. This is a high hurdle for the prosecutor. To begin with, jurors are going to give police officers a lot of leeway in employing force on their jobs. To be sure, if the officer had simply grabbed the girl and forcibly cuffed her after she kicked the shoe at him, he wouldn't even have been charged. So he could legally use force to restrain her. It also probably helped the defense that young people (recent jaywalking incident) may be perceived as not respecting police. That is a subject a creative defense lawyer might have used in jury selection or closing argument..

And yet, the officer seemed to punch and kick her unnecessarily. So the issue was really whether his use of force was "excessive." The standard jury instruction uses the phrase: "when the force is not more than is necessary." That phrase is further explained to the jury this way: "The person using or attempting the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of and prior to the incident." So the officer's training, experience and background with similar offenders is relevant. And the jury noted this when one remarked: "It was a very strong show of force, but the fact she was not injured during the process shows he followed the techniques he was trained to use." In other words, they bought the defense argument that the state had not proved that the force was excessive beyond a reasonable doubt. Again, I wonder if the state produced sufficient expert testimony to rebut this claim..

There is no question that the cop's attorney, Peter Offenbecker, did a great job, especially dealing with the negative publicity and the preconceptions a jury would harbor. In contrast, the prosecutor should question his trial skills. Results like this always baffle anyone who did not sit throughout the entire trial and hear all of the testimony and arguments. At this point, this is a case that the state should not and probably will not re-try. And I doubt the federal prosecutor will take the case. The only 'justice' is that the County did settle a civil suit by the 15 year old girl. Except. . . we, the taxpayers, footed that bill..

Do You Have the Right to Remain Silent?

For many years in nearly all TV cop shows, the police read the Miranda warnings to the people they arrest. Despite the warnings, they talk. After all, it wouldn't make for very good TV if the suspects asserted their rights much. So usually they talk or provide absurd alibis or excuses that lead to the next scene. But in real life, after the police read the Miranda warnings ("You have the right to remain silent. Anything you say can be used against you . .") what does a person need to do to assert his or her rights? If they just remain silent, is that enough? Recently the U.S. Supreme Court ruled that refusing to talk is not a sufficient assertion of the right to remain silent..

It seems absurd. For what must a person do to exercise his right to remain silent beyond actually remaining silent? But lets look at the facts of the case--Berghuis v. Thompkins. The defendant, Van Thompkins, was arrested for murder at 1:30 p.m., taken to an 8x10 interrogation room and properly read all his Miranda rights. During the next three hours, Thompkins was mostly silent in the face of police questioning, answering some questions 'yes' or 'no' or nodding his head. At no time did he request a lawyer or say anything such as 'I wish to remain silent.' In the last 15 minutes, the police asked him: Do you believe in God?” He said “Yes,” as his eyes “welled up with tears.” Eventually he was asked, “Do you pray to God to forgive you for shooting that boy down?” He answered, "Yes." Which was all the prosecution needed..

Before the U.S. Supremes accepted this case, a federal Court of Appeals ruled that: “persistent silence for nearly three hours in response to questioning and repeated invitations to tell his side of the story offered a clear and unequivocal message to the officers" that he did not wish to waive his rights. Moreover, the police never asked for an express waiver of the Miranda rights. In a close 5-4 decision, the Supremes reversed, holding that: "Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent." The clear message is that an arrested person must say something such as, "I don't want to talk," or "I wish to remain silent." After such an assertion, then the law protects a person from repeated interrogation or other attempts to get around his constitutional rights..

Requesting a lawyer provides even more protection of the arrested person's rights. Unless and until the police get an attorney to the scene of the interrogation, they cannot resume questioning. Yet, with the Court's latest decision, the door to police persistence is further opened. The newest Justice--Sotomayor--writing the dissenting opinion, notes that the majority decision: "invites police to question a suspect at length—notwithstanding his persistent refusal to answer questions—in the hope of eventually obtaining a single inculpatory response." Silence alone, then, does not prevent the police from trying every interrogation trick in the book, from appealing to religion (as with Thompkins), or to motherhood, or perhaps using a ruse or a lie such as your pal says 'you did it..'

Our constitutional rights not to incriminate ourselves (5th Amendment) and to counsel (6th Amendment) are precious, but they do not protect us when they lie dormant. If you wish to assert your rights, you must say it. And you must say it loudly and in no uncertain terms. If you ask a question like "Do I need a lawyer?" it will not necessarily be answered by the police because they don't have to. If you are in doubt, you probably do need a lawyer, so make your demand loud and clear..

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