Getting The Government We Deserve

I spoke to a young lawyer on the telephone this evening. He was despondent about the state of the law. Why, he wondered, are juries so quick to believe what police officers say, even when there is powerful evidence that the police have lied? The young man had recently tried and lost a case alleging unreasonable force against a police officer. He was thinking of abandoning the pursuit of justice as to errant police officers.

It was a painful conversation for me. Early in my career, John Williams of New Haven took me under his wing. He was one of the nation's pioneers in the application of the Ku Klux Klan Act's remedies against police officers. The act, codified at 42 United States Code Section 1983, permits people to sue government actors for money damages when a person's rights are violated. I have tried scores of these cases over the years, and I have won many of them.

Plaintiffs rarely win these cases any longer. It is difficult to get one of these cases to a jury. A powerful judge-created body of law known as qualified immunity empowers judges to throw the overwhelming majority of these claims out of court before a jury ever gets a look at the case. It's a cops world in the courtroom these days, and don't think police officers don't know it. Today a prison official taunted my partner while the jury wasn't looking. I undersand why some law enforcement officers deserve to be called "pig."

Even when cases do get to a jury they are an uphill struggle. Tonight it struck me why this is so. A case against a police officer for a Fourth Amendment violation alleges an unreasonable search or seizure, or the application of unreasonable force. Just what is and is not reasonable is nowhere spelled out in the Constitution. Reasonableness is what lawyers like to call a mixed question of law and fact. It often takes a jury to decide whether the force used at the time of an arrest, or the length of time the police held an individual, was reasonable. Juries set the standard for what is and is not acceptable in these closely watched cases.

Hence the rub. A jury frightened and inclined to value security more than liberty might well conclude that more heavy-handed law-enforcement tactics are reasonable. Did 9/11 change the attitude of jurors?, a lawyer I spoke to today wondered. I don't think it is that simple. I prefer to think in terms of a longer term cycle of the sort that Arthur Schlesinger, Jr., wrote about. Our national mood swings from right to left in broad spiralling arcs. We seem to be in a conservative stretch just now. I suspect cultural historians might find deeper similarities between our social mores today and those of the 1950s.

That is an assumption the bears exploration. While it is obvious that sock hops and penny loafers are not fashionable, there does seem to be a spirit of conformism in the land. Both political parties claim differences, but are depressingly alike in the partisan sniping. There is no real cultural ferment provoking change or insight into settled practices. I wonder, really, whether we're settling into some vast electronic cabbage patch, each of us habituated to lethargy by the rhythmic sound of key strokes and the instant gratification of seeing our words and images appear instantaneously before our eyes. It is so easy to create virtual worlds that the world of work, play and social interaction are compressed in a steady stream of data that makes zombies of us all. Can this leaden spirit create conformism?

In the end, we get the government we deserve. When jury after jury returns a verdict exonerating police officers for using guns, tasers and clubs on us, then the message is that it is reasonable for the wolves to feed on we sheep. When juries conclude that the police cannot lie it encourages police lying as a means of excusing the inevitable mistakes that members of every profession makes. When jury after jury decides that whatever the police do is all right, it sends a message: The people have the right merely to trust and obey the badge. 

Tomorrow my partner will give final arguments in a police misconduct case. The police are accused of using excessive force against a young black man. He testified in prison garb. Our witnesses largely disappeared and ducked subpoenas. They were afraid. When police officers testified, most of their stories cohered. But when one officer stood up and contradicted what the other officers said, the jury listened, looking troubled. The real question is what the jurors will do with what they've heard. Will they ignore the contradictions in the police testimony and conclude that young black men in urban areas need a little roughing up from time to time? Or will they sit up tall and erect and hold the officers accountable?

Jurors choose who to believe not based on a formula. We believe what we find reasonable and what makes us comfortable. These days the federal courts seem filled with jurors looking for reassurance. Hence, they forgive police officers when the decision to disbelieve would yield too much internal discomfort, too much cognitive dissonance. Do we say police are good because we want them to be good, the evidence notwithstanding?

So we get the government, and the policing, we deserve. A nervous public seeking security can't handle the truth that in the dead of night it is a wonder more young men of color are not shot dead. When violence erupts, jurors forgive because it corresponds to their hope of a safe world. But year after year of these dreams yields the nightmare of government and police emboldened to consider as reasonable what was once shocking. My partner awaits a verdict tomorrow fearing the jurors will find reasonable conduct that a decade or so ago would have appalled. I hope he is wrong, and that his jury will conclude that police officers are accountable to the people they police.

The verdict in a constitutional case goes a long way toward constituting the very shape and texture of the society in which we live. I fear we are becoming too complacent, thus emboldening the polcie to be even more aggressive in the manner in which they protect us. Who protects of from the police if jurors refuse to hold them accountable?

Comments: (7)

  • As one who has been targeted by what I call the st...
    As one who has been targeted by what I call the state's attorney's program of incrimination which works literally as a protection racket for preferred criminals (in my case thieving lawyers at the Pullman and Comley law firm) with abundant, irrefutable evidence to prove this, I have experience with lawless so-called law enforcement authorities. I won't go into my own experiences here; which I have mentioned in many other postings here and elsewhere, and also written about extensively at my website/blog. Now I want to mention some ideas I have gotten from being targeted for violence including threats and attempts to frame me by agents of the state of Connecticut working with criminal lawyers at the statewide corporate law firm:
    (1) dossiers on law-enforcement agents who commit perjury and other abuses including physical violence which can be made available to interested lawyers and the public; in most cases, such crimes are forgotten at the end of a trial, and neither judges nor prosecutors pursue them; but as previous crimes of defendants are often allowed to be cited in trials, so should previous crimes of law-enforcement officials;
    (2) "criminal judge [fill in position as called for] alerts" disseminated to the public when there is undeniable evidence that a respective judge (or prosecutor or police officer) has committed a crime; in my case, I have been identifying criminal judges, lawyers, etc., by name and repeatedly; such alerts would be modeled on the Amber alerts for missing children;
    (3) a website with photographs as available, reports of current locations and trials, previous criminal activity, etc., of judges, lawyers, police officers, etc., who have committed criminal acts as supported by irrefutable evidence; such a website would be modeled on the Connecticut sex offenders website.
    These are a few measures I have thought about helping the public to defend itself against the sorts of crimes, malice, and viciousness Pattis writes about in this posting of his.
    Posted on June 10, 2010 at 1:01 pm by Henry Berry
  • How true, and frightening indeed. I have plenty to...
    How true, and frightening indeed. I have plenty to say on this topic. Unfortunately, everything I have to say has already been said over and over again, thousands of times, not only by me but others on a garden-variety of forums. It is not clear when or if the tide turns. However, turn it must. I was discussing these very issues today with an intern in Sen. Kerry's office. Not the 'first or the last time. (I do this stuff on a daily basis for several years now.)
    I spent all of 2009 trying to get thru to the U.S. Justice Dept., 950 Pennsylvania Ave., Washington, D.C. NW. They refused to acknowledge my multiple, return-receipt correspondence. They refused to respond, or co-respond. Toward the end of my attempts, they refused to identify themselves on the phone. It was stonewall, runaround, stonewall, and more runaround. Please do not misunderestimate my frusteration and severe disappointment.
    If this is the spirit of the Obama administration, I want the Bushes back. I don't care which one! Maybe Laura.
    Prevailing winds indicate your associate will lose this one, but you never know? Juries are unpredictable. They are de facto 'peanut galleries', carefully chosen spectators and cheerleaders who are not allowed to ask questions or participate in proceedings. In my experience, the judge is more important than the jury for the simple reason that it is within his/her discretion to signal to the jury, by hook or crook, what he wants. Juries these days are subservient to the court, unless you luck-out by getting that one incontrovertible curmudgeon who may be unbeholden to the judge but faithful to the Constitution and the rule of law. God forbid!
    Also, a little known fact: jury verdicts can be 'set aside nothwithstanding' in many jurisdictions. True in Mass. Don't know if true in CT, the UnKonstitution State, a state in denial.
    In CT, police officers are bald-a$$ed liars. My judge said, "The police officer has the right to come into court and express his opinion"! Say what? I thought he just took an oath "to tell the truth, the whole truth and nothing but the truth." That is exactly what I thought I heard when he was 'sworn in'. Call me confused, perplexed, and befuddled.
    Posted on June 10, 2010 at 1:16 pm by William Doriss
  • When you have judges who take bribes, owe corrupt ...
    When you have judges who take bribes, owe corrupt officials and organized crime their judgeships, and are malicious and are often psychopaths, you get what you get. Without judges who are out to promote justice, you get a system without justice. Judges appointed George W. Bush US President, he wasn't elected. Politicians like Hillary Clinton stack the courts with judges who will fix any public corruption cases should they arise against her or her corrupt politician cronies. It won't be long we'll be calling each other comrades.
    Posted on June 11, 2010 at 3:23 pm by The Stark Raving Viking
  • What's the verdict?
    What's the verdict?
    Posted on June 16, 2010 at 7:07 pm by Lee Stonum
  • Lee:
    Posted on June 16, 2010 at 7:17 pm by Norm Pattis
  • Anti-climactic. I thought you were going to tell u...
    Anti-climactic. I thought you were going to tell us once and for all whether we could entrust our democracy to these darn jurors. I kid. Hope that brings you a good settlement then if that's what you want, or that your partner isn't too bummed that he has to try it again.
    Posted on June 16, 2010 at 7:42 pm by Lee Stonum
  • I want credit for the mistrial. Ha! Long live the ...
    I want credit for the mistrial. Ha! Long live the unfettered, equal-access internet. You do not have to be 'certified' to post a comment,... u/the 1st Amendment I assume.
    There was indeed one curmudgeon on that jury, and he/she surreptitiously read my comment and was moved. True beyond a reasonable doubt, even if in violation of the judge's jury-instructions. The judge was out of order, beee-cause my comment emanated from outside of his 'jurisdiction'. Ha! These judges are sooo stew-pid! (What is the definition of a jurisdiction anyway?!? Bill Clinton knows the answer to that one.)
    Welcome to the new age of internet-justice. Whaddyaa goin to do abouddit? So what is the answer? Sequester the jury in these times of astronomical budget deficits? More money down the rathole of judicial incompetence!
    The State is running a criminal 'justice' Ponzi Scheme of the highest order for the past twenty years,... mostly under the reign of the incompetent Gov. Relland and her sidekick, Mr. Rock-and-Rowl himself. Am not even sure if he can vote now.
    Am sure he talking on his cell phone while driving, as we speak, federal felon that he is. Probably has an illegal weapon too and gold buried behind the backyard swimming pool. Who knows what skeletons are buried there!
    Posted on June 17, 2010 at 11:55 am by William Doriss

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