Prosecuting Cops and States of Mind

First a note of warning: This is a column that will make you happy never to have attended law school, and it might very well make your head hurt, an irony, considering that what we’re about to discuss is how the law treats states of mind.

Two East Haven cops, David Cari and Dennis Spaulding, will face a jury of twelve in a Hartford federal courtroom next week. They are accused of violating the civil rights of Hispanic persons in East Haven, and will be on public display for more than a month. What you won’t see, what you’ll never see, is the mental state of either defendant. Yet everything turns on this invisible factor.

(One of my clients, Jason Zullo, pleaded guilty last year to a single count of filing a false police report involving a collision with another Caucasian motorcyclist. Despite press reports to the contrary, he did not plead to any claims involving discrimination based on ethnicity. He awaits sentencing.)

As part of its case, the government must prove that Officers Cari and Spaulding had a specific intent to deprive the alleged victims of their constitutional rights, in this case, the Fourth Amendment right to be free from unreasonable searches and seizures because of their ethnicity.

Specific intent is what is known as a mental state, or state of mind. Jurors routinely are told that they cannot look into the mind of an accused person to see their state of mind. Mental states are proved based on circumstantial evidence; a person’s conduct is observed, and based on what is observed, inferences are drawn on what was going on in the person’s mind.

The law distinguishes among a series of mental states. In ascending degrees of culpability, or blameworthiness, they are as follows: negligence, recklessness, general intent and specific intent.

A negligent act is one done carelessly. One of the law’s grandest and most far-reaching assumptions is that there is such a thing as a reasonable person. An act is careless if a reasonable person would not do it. Society wants folks to stop at red lights; a person who fails to do so is, all other things being equal, at least careless. My hunch is that we’re all negligent from time to time.

More culpable is a reckless act. Are you aware that your conduct poses a serious and substantial risk of harm to another? Do you nonetheless continue to act? That’s recklessness. An example of this might be closing your eyes as you approach an intersection, not caring whether the traffic light is red, green, yellow, or even operating at all. Do this sort of thing often enough, and someone is going to get hurt.

General intent means engaging in a deliberate course of conduct, but without the conscious objective to do harm. Your spouse gives you a handgun for Second Amendment Day, a new holiday the National Rifle Association persuades Congress to enact. You load the weapon, disengage the safety, and hoot to your wife: “Yahoo, look at me! I’m a patriot.” As you pull the trigger, a bullet is launched. It is your bad luck that it strikes a passer-by. You didn’t mean to kill anyone, but you did mean to pull the trigger.

If you’re a careful reader you just reviewed the previous two paragraphs, trying to discern the difference between recklessness and general intent. Good luck navigating the law’s slippery slopes. The two states of mind blend into one another.

But neither has the blameworthiness of an act done with the specific intent to cause harm. The law regards these acts as performed with a conscious objective in mind. Thus, you pull the trigger of your new gun while telling your wife, “I want to whack our neighbor Willie.” You take aim, and fire, leaving poor Willie dead.

Officers Cari and Spaulding face specific intent crimes. The government must show that they acted with the conscious objective of depriving their victims of the protection of the Fourth Amendment on account of their ethnicity. It is a high burden.

Here’s where things get tricky.

Police officers are taught in the police academy that their conduct in making investigative stops and arrests is judged from what the law calls an objective standard. Their idiosyncratic subjective motives, they are told, are irrelevant. Thus, an officer stopping a car because of a failed taillight, or, as in the case of Officers Cari and Spaulding, because they had the suspicion that motorists were driving with stolen marker plates, is regarded as justified in doing so.

It is drilled into the heads of new recruits that this objective standard, what a reasonable police officer would believe faced with the same facts and circumstances, is the standard for evaluating their conduct. You can dislike everything about a person when you stop them, so long as you had good reason to believe they might be breaking the law.

It would not surprise me to see a substantial portion of the government’s case against the East Haven officers thrown out before the jury gets a chance to render a verdict. If Judge Alvin Thompson concludes that the officers had good reason to stop motorists based on reasonable suspicion that they were breaking motor vehicle laws, then it seems to me he has no choice but to bid adios to the government’s allegations.

In civil cases alleging police misconduct, savvy lawyers defending cops ask a judge to separate, or bifurcate, the trial. A jury is first asked whether the conduct of the officers was, when viewed from a so-called objective standard, in violation of the Fourth Amendment. Evidence of the officers’ actual state of mind, what motivated them, is kept from a jury as somehow too prejudicial, or too dangerous, for the jury to know. It might, after all, lead the jury to conclude that a bad motive made an otherwise good stop look unlawful.

In a bifurcated civil trial, evidence of the officer’s actual state of mind is admissible in the second part of a trial only after a jury concludes, if it does, that the officer’s conduct violated the Fourth Amendment, and then only to show whether the officer acted with malice. A finding of malice might result in punitive damages.

There will be no bifurcation in the criminal case against Officers Cari and Spaulding. The government can throw everything it can muster against the courtroom wall, including juvenile emails, in an effort to make the cops look bad.

I dwell on these head-hurting distinctions today to note an irony. When officers are sued for mere money — money often paid on their behalf by their employers and their insurance companies — the law takes pains to keep the officer’s state of mind from jurors as long as possible. But threaten a cop with loss of liberty, and he suddenly gets less protection — we jump right to the proof of an evil mind.

This sorry mess makes no sense at all, no matter what state of mind one uses in considering it. No wonder Charles Dickens referred to the law as an ass.


Also listed under: Journal Register Columns


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