How police, prosecutors and judges form their own triangle

A veteran Maryland lawyer and blogger details how judges and prosecutors are so dependent on police that getting justice in the case of police brutality and misconduct can often be out of reach.

/By Jonathan Shurberg - Maryland Scramble/ I wasn’t surprised by the acquittal of Baltimore police officer Caesar Goodson yesterday. That’s not a statement on his guilt or innocence but on the inability of the criminal justice system to dispense meaningful outcomes when the cases involve police officers.

I spent almost 20 years in criminal courtrooms around the state of Maryland. The brutal reality of our system is that police officers are the indispensable actors that make the system go. You can substitute in different judges when you need to, you can even bring in outside prosecutors, but you can’t replace police officers. They investigate and bring the cases to prosecutors, who rely on the police to make their cases in court. Judges almost unfailingly side with police officers when credibility is an issue, at least if they want to move up from District Court to Circuit Court and then to the two statewide appellate courts. I can name more than a few top notch judges that never got off the District Court because they didn’t give sufficient allegiance to the word of police officers. Judges always believe police officers.

It doesn’t matter how inconsistent, how outlandishly unbelievable, how physically impossible the testimony might be, it is always more credible than you or me or one of my (usually minority) clients. I remember one case where a police officer testified she could see my client from a mile away, over a bridge under construction, past a shopping mall and around a bend, and that based on her “training and experience” (a standard police buzz phrase that means nothing in reality) she was sure my client was traveling over 100 MPH on a motorcycle. I showed the judge pictures of where she testified she was sitting in her police car, and her view extended for maybe 500-600 feet before an enormous construction overpass blocked her view of anything beyond it. The judge looked me square in the eye and said “I credit the officer’s testimony. She’s a professional with x years experience and if she says she saw your client, I believe her.”

Even though the stakes of this particular case were minimal, I was completely incensed, and the judge could see it. After the case was over, he called me up to the bench, turned off the mike, and pretty much told me that he knew I was right and the officer had made it up, but he wasn’t going to get into a conflict with the police officer about it. Bottom line was, it wasn’t worth it. He had to work with the police, day in and day out, and calling them out for false testimony just isn’t worth it, even when it was obvious.

Now imagine what it’s like when the police officer is on trial, and the defendant has elected a bench trial, meaning the judge serves as a one person jury. Now reasonable doubt works not as a point of conflict but as an easy way out. “Maybe he did it, but am I really sure?” In a perfect world, that’s the way every case would go. But it doesn’t, we know that. Now add in the holy hell the judge is going to get, day in and day out, if he finds that officer guilty. Every police officer will have an axe to grind with that judge. I’m not saying that’s how it went for Judge Barry Williams but these considerations are assuredly factors.

So – long winded intro now concluded – it’s clear that criminal prosecution is a terrible way to seek truth and/or justice in cases of police brutality and other misconduct. Juries don’t want to convict, and judges REALLY don’t want to. Prosecutors often don’t want to prosecute, because they too rely on police officers to make their cases.

Today in the Post, a retired federal judge from my ancestral homeland of Hartford, Connecticut focuses on this issue and makes some suggestions. I agree wholeheartedly with him, by the way, but don’t hold your breath waiting  to happen at the federal level. It would make for a fascinating state level experiment, though. Here’s Judge Jon Newman:

The acquittal Thursday of another Baltimore police officer charged in the death of Freddie Gray, like the acquittal 25 years ago of the Los Angeles officers who beat Rodney King, reveals the inadequacy of the criminal-law remedy. Suing the police for money under a strengthened federal civil rights law would be a better response to police misconduct.

Right now, however, federal law makes it more difficult to sue a police officer for denying a citizen his constitutional rights than for injuring him by ordinary negligence. If an officer negligently drives his car and injures a citizen, the victim can win money just by proving negligence, and the city that employs the officer pays whatever the jury awards.

But when an officer uses excessive force or makes an unlawful arrest or search, proving wrongful conduct is not enough. Under Section 1983 of the federal civil rights statute, the officer can escape liability with the special defense of qualified immunity — showing that he reasonably believed his conduct was lawful, even if it was not. And if the jury finds the officer liable, federal law does not require his employer to pay the award.

Juries, and even judges in non-jury trials, are reluctant to convict police officers of a crime, even in the face of ample evidence. With rare exceptions, they simply will not say “guilty” and risk sending an officer to prison. Suing the officer for money damages in a federal civil rights suit is the only realistic way to establish police misconduct and secure at least some vindication for victims and their families.

How utterly screwed up is it that it’s easier to win a car accident case than a brutality case?

Right now, there’s often no way to gain any justice for even the most egregious police abuse and misconduct. It’s also hard for counties and municipalities to gain any control over rogue officers who commit offense after offense after offense with no sanction. But imagine a system where the governmental entity – state, county or municipality – was responsible for the unconstitutional acts of its police officers. Wronged individuals and families could get justice, government would gain the tools to bring wayward officers to comply with the law or face being fired, and governments would have an incentive to properly train and regulate their police forces. End result – fewer cases of abuse, fewer deaths and serious injuries, and better trained police forces.

I think that’s an idea worthy of discussion. It won’t be easy to pass such a law, and it will take time, but the stakes could not be higher. How many more people of color should have to die before we decide that enough is enough?

This post first appeared on Maryland Scramble June 24, 2016.