Out of court

Friday, July 2, 2010

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..

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