I was at the Mohegan Sun casino the other day, during normal business hours. But I was not there for the purpose of gambling. I swear. I have a room full of police chiefs who are my witnesses.
For the second straight year, I was the guest of the Connecticut Police Chiefs Association, invited to speak about a criminal defense lawyer’s perspective on the challenges facing police officers. This year’s topic was simple: Why the sudden scrutiny of police use of force?
The group was somber. Their men patrol streets in neighborhoods where they are sometimes viewed less as law enforcement and more as an occupying force. They are concerned that the rapid change in public opinion will result in more police deaths as officers become reluctant to defend themselves for fear of retaliation.
I’ve been involved in police misconduct litigation for decades, and, from where I sit, I actually see fewer claims about police violence than in the past. But the claims I now see go viral: whether captured by body cameras, dash cameras or passers-by, videos of police violence rapidly go public. Who has not watched the choking death of Eric Garner on Staten Island?
Police officers don’t do a good job of explaining their work to the public at large. I told the chiefs the responsibility for doing so belongs to them. So long as officers behave like a secret brotherhood, the public at large will not understand why unarmed men are sometimes killed.
Watching a video of a police officer taking a person into custody is often jarring. Officers are taught that they have the right to overcome resistance with force, even lethal force, so long as the force they use is reasonable.
But what is reasonable?
If your loved one is killed, odds are you will be enraged by the use of lethal force in a close case. The same is true if the person killed is someone with whom you identify. The sense that “there but for the grace of God go I,” or sympathy, is a sentiment informing our moral reckoning.
Police officers are unpopular in many quarters these days. That’s because there is a broader crisis of legitimacy afoot throughout the United States. A growing division between rich and poor divides the nation into separate cultures; lingering racial resentment, too, yields a sense of a nation ripped into pieces.
Just this week, I learned that if you use a variant of the “N” word on Google Maps and type in “‘N’ house,” you will be directed to 1600 Pennsylvania Ave., in Washington, D.C., the current residence of President Barack Obama. Really? Google?
The racial divide in this county runs deep, and many in communities of color have long regarded the police as too quick to stop, to arrest and to shoot African Americans. As Caucasians become a minority in the United States, a new consensus about what is reasonable is emerging.
What’s a police officer to do when business as usual is no longer acceptable?
One chief told me about an encounter he had with a black lawmaker. When the officer told the legislator that arrestees need to be encouraged to comply with police officers’ orders, and to take their disagreements with cops into the courts, the lawmaker responded: “When I hear a white police officer say that, I hear the chains of slavery rattling.”
Really? Talk like that will cost lives of both arrestees and police officers.
I don’t know if we will ever get race relations right in the United States. Frankly, I doubt it. Nothing in racial or ethnic conflict around the world suggests that we will — brotherhood remains a distant, even if a worthy, dream.
By definition, the state enjoys a monopoly on the legitimate use of force. Police officers are the face of the state in our local communities. They are trained in the use violence; the law recognizes their right to use it.
We haven’t always had police forces in this country. They began to appear in the 19th century. Much though I am suspicious of the state and its purposes, I am glad there are cops: When I need assistance, I dial 911, not the telephone number of a local criminal defense lawyer.
I lay blame for much of the current misunderstanding about police use of force at the doorstep of the federal courts. Twenty years ago, federal dockets were clogged with claims against police officers. These cases often went to public trial. An aggrieved party could make his case publicly, and to a jury, about police misconduct.
The judges grew weary of these cases, and struck back, creating a legal doctrine called qualified immunity that was intended to keep all but the most egregious cases from ever seeing the light of a public trial. What’s more, courts began to give police officers the benefit of the doubt in close cases — tossing cases out of the courthouse.
Federal court dockets shrank, fewer police misconduct cases went to trial, and the police became less accountable to the public.
I told the police chiefs to instruct their lawyers not to seek immunity so often. Let the public challenge police use of force in open court. More often than not, juries decide in favor of cops. Why not trust the communities you serve, rather than hide behind the robes of a judiciary accountable to no one?
I learned respect for police officers standing toe-to-toe with them in open court, challenging every decision they made, calling them liars, cheats, scoundrels.
A funny thing happened during these trials: I came to understand the world they inhabit. Their lives are on the line daily. They rarely can foresee which call might be fatal.
I survived my encounter with the police chiefs. I worry that the men and women they lead won’t survive recent changes in public opinion.
(A confession of sorts: I did arrive early at the casino, however, and I did lose money feeding coins into a few slot machines. This fool was easily seduced by the blinking lights.)
I’m always amazed when I read press accounts of cases I have either tried, or am in the midst of trying: the reporter’s gloss rarely reflects the complexity of the proceeding. Often, what’s reported is just plain wrong. But the public appetite for trial news appears to be insatiable.
My theory is Freudian: Trial is where we take the seven deadly sins – wrath, greed, sloth, pride, lust, envy, and gluttony – and put them on display. We identify with the accused at criminal trials: His sins are ours, only writ large; we could have done the same. The defendant must be punished or our self-restraint is mocked.
Of course there are exceptions to this theory: Sometimes we identify with the alleged victim, demanding relief for him or her as though we ourselves suffered the injury.
Civilization is a complex mystery. It is no wonder our discontent leaks out in morbid preoccupation with the sorrows of others.
Lawrence M. Friedman’s latest book, The Big Trial: Law As Public Spectacle, is a scholarly treatment of our fascination with trials. Although he doesn’t adopt the Freudian point of view, he doesn’t contradict it either.
In Friedman’s view, big trials are part entertainment and part teaching -- or, as he puts it more times than I can count, “didactic” – exercises. The boundaries of community norms are explored at trial. We teach one another what is, and what is not, to be tolerated.
Studying trials are also useful social history: “Arguments and strategies in jury trials are windows into social stereotypes and norms, into what people think and believe,” Friedman writes. “They can help show us which norms, ideas, and attitudes pack the most punch, at various points in history.”
His discussion of the Lizzie Borden case – she was acquitted for the murder of her father and step-mother in 1892 Fall River, Massachusetts -- prompted chilling memories of a classmates of mine in Chicago standing on my doorstep to chant:
“Lizzie Borden had an axe
She gave her mother 40 whacks,
When she saw what she had done
She gave her father 41.”
How did the tale of this double-murder find its way from Massachusetts to Chicago half a century later? Did the poem’s power to terrify me have anything to do with the fact that my father had recently disappeared? I knew about Lizzie Borden in a personal way before I ever learned of the crimes with which she was charged.
The Internet is changing trial coverage by the media. There are websites, such as WildAboutTrial.com, dedicated to nothing but coverage of high-profile cases. Daily newspapers struggle to meet the demand for coverage – depressed budgets requires reporters do more with less.
Should trials be televised? I say not. Watching another lawyer try a case is, for me, like watching ice melt on a cool October morning – I just won’t do it. I suspect most trial watchers don’t really pay attention from gavel to gavel. Television is a distraction to the participants, sometimes intimidating witnesses, other times emboldening them to seek their fifteen minutes of fame from the stand. Remember Kato from O.J.’s case?
I love Friedman’s books. He’s written previously on the criminal justice system and on prisons. He’s a careful researched and has a scholar’s love of explanatory footnotes.
If you are fascinated about why and how some trials go viral, why the general public adopts other people’s troubles as their own, read this brief and insightful little book. I liked it so much I will re-read it soon.