Thursday, May 27, 2010

Rush to judgment

Trial lawyers, good ones, adopt "trial themes" to help convey the essence of their case to jurors. It's a way of framing the evidence so that it paints a clearer picture. Or, some might say, a way of distorting the evidence to make an unclear picture.

One of the most common criminal defense themes is "rush to judgment." The theme is repeated and reinforced through questioning of the witnesses, especially cops, to indicate that the police quickly decided who was guilty and didn't bother looking for the "real" perpetrator.

Now, if you're a reader of this blog it may be that you read defense lawyer blogs, too. And if so, you'll know there are 100 of those for every prosecutor blog. And most of them are excellent, I've linked to a few here.

One of the best is by a DC lawyer called Jamison Koehler, who is an intelligent, thoughtful, and unusually articulate blogger.

But today I'm gonna beat him up. :)

You see, I've noticed a rush to judgment on the part of defense lawyers and other bloggers who are just too dashed keen to criticize cops. Heaven knows there are cops who deserve criticism and always require close scrutiny. But what I'm seeing is either an extrapolation of one event to suggest all cops are corrupt/violent/lazy or, as with Jamison's post, an extrapolation from an event that may not even have happened to criticize cops in general, and then to circle back and end with the assumption that an event occurred.

Read this post. Basically, some dude got drunk at a baseball game, threw up on a cop and his daughter, and got arrested. In his mugshot he has a black eye. Jamison states up front, like any honest blogger, that he doesn't know the facts. He doesn't know how the guy got a black eye.

Here are some possibilities:
-- he had a black eye when he went into the ball park
-- he got whacked by a baseball while in the park
-- a nearby spectator gave it to him for being a drunk jerk
-- while being arrested he fought the police and got the black eye while being subdued
-- the cop/father punched him for throwing up on his daughter
-- the cops decided to beat him up for revenge/fun.

Six options. Two of them are not okay, with me or (I'm sure) Jamison: the last two.

In his blog post, though, he goes straight to the last one, then talks about how so many of his clients and other people in mug shots sport physical injuries on their faces. But again, the options don't start and end with "The cops did it gratuitously."

So here's why I care:

1. There are very few blogs out there supporting the cops, telling people what a tough job they have. In contrast, there are hundreds of defense lawyer blogs slamming cops and prosecutors. I don't like that the view is so one-sided, that there are so many voices on one side of the debate, and I like it less when so many good cops are tarred with the sweep of a single brush. I feel like the public's view of officers lies in the hands of people who are looking for reasons to get 'em.

2. Police officers are not being extended the same benefits being offered the people who are so often actually guilty. I can imagine, for example, someone reading my protestation that the cops didn't beat this guy up, and saying "Oh, come on." But those who would say that would be horrified if I, or the cops, accused someone of a crime with flimsy evidence and said, "Oh, come on. He was there, of course he did it."

Now, I'm not saying cops don't deserve more scrutiny in their actions, I'm just saying let's not assume their guilt when we wouldn't for anyone else.

Finally, I want to say that Jamison's blog is one of the first I read in the morning for all the reasons I've mentioned. And I encourage you to do so, too. I don't want this to seem like I'm attacking him personally (perish the thought!), I'm not. His blog entry just happened to catch me when the issue was on my mind.


  1. If, as the cliche goes, bad facts lead to bad cases, bad facts can also lead to bad blog entries.

    According to newspaper accounts of the incident, which I had read at the time I wrote the blog entry, it was not the cop himself but bystanders who inflicted the black eye on the vomiter. In other words, the truth was probably closest to number 3 of your options above.

    Let me also say that, just as you are no blind apologist for police, neither am I a blind attacker. There is a reason I didn't go into medicine -- I can't stand the sight of blood. There is also a reason I didn't go into law enforcement -- I'm a big chicken.

    All that said, I do believe there has been an increase in police violence against citizens suspected of an offense. (Or maybe the violence has always been there, and we are just becoming more aware of it through videos). I also believe that police often trump up false charges to cover this misconduct.

    I was shaken up by the recent Pulitzer-Prize winning Philadelphia Daily News articles about widespread corruption within the narcotics unit in Philadelphia. I knew and liked many of those cops personally and felt somehow personally betrayed to learn of their actions. Perhaps I am mourning the loss of an idealized vision of the kindly, neighborhood police officer.

    In other words, I saw the swollen eye of the vomiter in the article and I did in fact leap to the conclusion -- rush to judgment -- that he had been beaten up by the cops. And I hold that against all the crooked cops out there who give all the other ones a bad name.

    As for this particular guy, heck, if he had purposely vomited on my 11-year-old daughter, I probably would have inflicted the black eye on him myself.

  2. First, the story Jamison relied on said "authorities acknowledged he was hit as he was being subdued," presumably by the police. That's probably why he made that assumption. Unless it was just a careless mistake and you didn't read the underlying story, my bigger question would be why would someone throw up a smokescreen of possible excuses (e.g., "he got whacked by a baseball while in the park") that ignore the details what was reported? I'm assuming/hoping you didn't read past his blog post and just whiffed that one.

    Second, as to your risible claim that "There are very few blogs out there supporting the cops, telling people what a tough job they have," you ignore the fact that most police departments of any size have full-time public relations staff who spend ever day "telling people what a tough job they have." Not to mention Law&Order and every third show on television.

    What's more, law enforcement perspectives are mostly where the MSM get their sources. I'll guarantee if you did a quantitative content analysis (in the old days academics would count the number of column inches in newspaper stories containing information from various types of sources), you'd discover that the VAST majority of information in mainstream media crime coverage comes from law enforcement agencies themselves, far and away. So what you're reacting to is not really a bias so much as the correction of one, presenting perspectives on crime coverage that are typically left out in the MSM. (That's certainly how I view what I do on Grits.) By contrast, law enforcement gets all the media access they want because crime coverage is such a staple.

  3. Fantastic blog post. Often the press seems to have the same worst-case-scenario slant. Nice to see someone looking at the other side!

  4. Its a common assumption that policing/law enforcement appears to be a very dangerous profession. I'm not necessarily asserting that its not, BUT... currently, both national and local stats show that there are more dangerous professions. For example, construction workers here in Austin right now are dying on the job at a much higher rate than APD has ever seen, and of course, these mostly undocumented workers are paid far, far, far less and have NO benefits and NO help if they are lucky enough to live after workplace accidents. There's no memorials to them except the high rises they've built. Twenty nine miners died in West Virginia due to what evidence indicates might have been criminally negligent practices by Massey Energy. There were certainly ongoing, unremedied violations of codes meant to protect workers. Eleven working human beings, making pennies compared to their bosses who are still alive, died on an oil rig last month. Meanwhile the fisherpeople who now can't fish are cleaning up BP (Beyond Pathetic)'s mess and BP has apparently prevented the workers from wearing respirators provided for free by the National Resource Defense Council. We have every reason to believe, due to what we saw with the Exxon spill in 1990, that a serious danger exists that those working the cleanup will suffer prolonged, debilitating illness due to contact with the oil and the dispersant -- a chemical illegal in Europe (BP can use it in the Gulf and not in the North Sea - no kidding).

    None of the workers in these other dangerous jobs get to use that danger as a license to get away with violence and misconduct. We cannot defer to the danger they may face and excuse unnecessary force, brutality, misconduct, and just plain bad behavior.

  5. FWIW, Stefanie, awhile back I posted the workplace fatality rates for various occupations including police on Grits, and you're right that many common jobs are more dangerous but they don't get to "use that danger as a license to get away with violence and misconduct." Here's a sampling of national 2008 on-the job fatality rates (expressed in number of deaths per 100,000 full-time equivalent jobs) for various occupations:

    Fishermen: 128.9
    Logging workers: 116.7
    Aircraft pilots: 72.4
    Iron and steelworkers: 46.4
    Farmers and ranchers: 39.5
    Garbage collectors: 36.8
    Roofers: 34.4
    Electrical power line installation/repair: 29.8
    Truck drivers: 22.8
    Oil and gas extraction: 21.9
    Taxi drivers: 19.3
    Drinking establishment employees: 17.0
    Construction workers: 16.0
    Police and deputies: 15.6
    Grounds maintenance: 11.9
    Welders: 10.5
    Electricians: 8.3
    Gas station attendant: 7.5
    Firefighters: 6.9
    Auto mechanics: 5.0
    Newspaper publishers: 4.8
    Carpenters: 4.7
    Janitors: 3.1
    Retail sales: 1.5

    Clearly fishermen and lumberjacks should be allowed carte blanche to do whatever they please since they have tougher (or at least much more dangerous) jobs than police, at least if we operate under the DAC assumption that justifies overlooking or making excuses for abuse allegations.

  6. Huh, that was unusually snippy of you Grits, and I have to ask where I said that a dangerous job allows cops (or lumberjacks) to get away with anything?
    I just reread my post and I'm pretty sure my point was merely that they should be accorded the same presumption of innocence as everyone else.

  7. Take these numbers for what they are worth, but it appears police are accorded a much higher presumption of innocence than citizens.

    Not to pile on, but what is a "good" officer? Presumptively, we might define it as one who does the job for which they are hired and does not break the law. However, I think in lay terms it is often used to mean that "good" officers are above and untouched by the conduct of the "bad" officers.

    While this might allow us to sleep warmly at night, it would seem obvious that the relationship which exists between "good" and "bad" officers substantially overlaps and I would argue that none are untouched by conduct unbecoming. Therefore, none are "good" in the sense in which the word attempts to portray; a legal fiction ala Scalia if you will.


Comments posted to this blog are NOT the opinion of the Travis County D.A.'s office, under any circumstances. They are only the personal, non-representative opinion of D.A. Confidential if posted under his name.
I welcome all comments, as long as they are expressed with politeness and respect. I will delete all comments that I deem to be personal attacks, or that are posted merely to antagonize or insult.