Indicting NYC Cops Is One Thing, Convicting Them Is Another
New York Attorney Phillip Karasyk minced no words when a reporter asked about the prospect that his client, New York City police officer Gerscard Isnora, will be acquitted in the killing of Sean Bell. Karasyk flatly said that he'd be vindicated.
This was not typical attorney bluster; the odds are that Karasyk is right.
The November 25 shooting of the unarmed Bell, a new bridegroom, and the wounding of two of his friends, stirred public rage and protests. And there was good reason to expect that some of the cops that fired the volley of shots that killed Bell would be indicted.
But expectations, not to mention witness testimony, seemingly unimpeachable evidence, and even the official condemnation of the deadly shooting by New York City Mayor Michael Bloomberg won't guarantee that Isnora and the other two officers indicted are convicted. It's easy to see why.
When cops go on trial for overuse of deadly force, their victims are generally poor blacks and Latinos. The attorneys that defend them are top gun defense attorneys, and have had much experience defending police officers accused of misconduct. Police unions pay them and they spare no expense in their defense. The cops rarely serve any pre-trial jail time, and are released on ridiculously low bail.
During jury selection, their attorneys seek to get as many whites on the panel as possible. The presumption is that white jurors are much more likely to be middle-class, and conservative, and much more likely to believe the testimony of police and prosecution witnesses than black witnesses, defendants, or even the victims.
The same rule applies to black or Latino jurors, and both may be represented on the New York cop's jury. They are generally middle-class, and share the same biases toward those they perceive as the criminal element as many whites.
Prosecutors have a big task in trying to overcome the pro-police attitudes, and the negative racial stereotypes of middle-class jurors. A 2003 Penn State University study found that many whites are likely to associate pictures of blacks with violent crimes, and in some cases where crimes were not committed by blacks they misidentified the perpetrator as an African-American.
The frequent media portrayal of young blacks and Latinos as crime-prone, drug-dealing gangsters, the gang and murder violence that continues to wrack many black neighborhoods, and the glorification of the thug lifestyle by many young blacks reinforces negative racial perceptions.
Almost certainly, defense attorneys will try and type Bell and his two companions in that manner. This makes many whites, non-blacks and even many older blacks guarded, suspicious and fearful of young blacks.
There is no ironclad standard of what is or isn't acceptable use of force. It often comes down to a judgment call by the officer. In the Rodney King beating case in 1992 in which four LAPD officers stood trial, defense attorneys turned the tables and painted King as the aggressor and claimed that the level of force used against him was justified.
The four New York City cops tried for gunning down African immigrant, Amadou Diallo in 1999, also claimed that they feared for their lives. The jury believed them and acquitted them.
In Cincinnati, a municipal judge summarily acquitted white Cincinnati police officer, Stephen Roach of criminal charges in the slaying of 19-year-old Timothy Thomas during a traffic pursuit in 2001. The shooting ignited three days of riots. The judge bought Roach's tale that he feared for his life, and fired in self-defense.
In the Bell case, Kasaryk and the other officer's attorneys almost certainly will use the same tact and argue that the officers feared for their lives when they fired. In his initial call to a supervising police lieutenant, Isnora said he thought one of the suspects had a gun, made a suspicious move, and that the car they were in bumped him.
The code of silence is another powerful obstacle to convicting bad cops. Officers hide behind it and refuse to testify against other officers, or tailor their testimony to put the officer's action in the best possible light.
Prosecutors often are barred from using statements made during internal investigations of officer misconduct in court proceedings on grounds of self-incrimination. This knocks out another potentially crucial prosecution weapon. Federal prosecutors that retried the officers that beat King learned a vital lesson from the abysmal failure of local prosecutors to convict them. They did not rely exclusively on the videotape but on expert testimony on the use of force to prove that the officers went way over the top against King.
Yet despite the massive time, resources, and care they devoted to the case, they still only managed to convict two of the four officers. Karasyk well knows that nailing cops is a rough task for even the most diligent prosecutor. He's betting that it will take much more than solid evidence that it was a bad shooting to nail his client. That's a good bet, but prosecutors must be prepared to call him on it.