The Only Effective Way to Hold Police Accountable

07 Jun

The 2016 documentary OJ: Made in America truly was a seminal piece of filmmaking. Ezra Edelman’s Academy Award winning piece was not only a master class for its meticulous chronicling of O.J. Simpson’s early life, football career and his 1994 criminal trial (often dubbed ‘The Trial of the Century”), but its in-depth analysis of race and class as the context for the O.J.’s trial and subsequent acquittal is a true accomplishment for the ages.

While chronicling O.J. Simpson’s journey from obscurity to stardom in the dual arenas of athletics and entertainment, Edleman simultaneously documents America’s vile history with regards to race relations and persecution of minority communities. Edelman’s work while providing an overview of the historical inequality and injustice perpetrated against African Americans, fixates on the experience of blacks in Los Angeles and carefully examines how ongoing atrocities committed by the police and the courts against African Americans led to a complete loss of faith in the justice system by the black community. The true genius of Edelman’s work and what separates it from the myriad of other O.J. related works is the parallel timeline of important milestones in Simpson’s life with the succession of blows the black community endures at the hands of the LAPD and the justice system as a whole. Although Simpson appears to have work his whole life to deliberately distance himself from the black community and its longstanding struggle, these two timelines eventually intersect with Simpson’s prosecution for double murder. The result of course was that Simpson’s defence was successfully able to instrumentalize the historical injustice against blacks by turning the jury’s attention away from the evidence and his Simpson’s obvious motive murder, and towards instead, the idea that a corrupt police force had unjustly pinned the murders of Nicole Brown Simpson and Ron Goldman on Simpson. After Simpson’s acquittal, the overwhelming support he received from the black community (and a significant portion of the white community) demonstrates that this narrative offered by Simpson’s defense was not only plausible, but rang true because of the historical persecution African Americans had endured by the justice system.

One of the seminal events chronicled in Edleman’s documentary were the 1992 L.A. riots that took place shortly before Simpson’s trial. The riots were set-off following four white police officers being acquitted for the roles they played in the vicious beating of Rodney King, a black motorist who appeared motionless for much of the beatings. While King’s beating at the hands of several (white) police officers was certainly not uncommon according to the black community in L.A. (or America for that matter), what offered the promise of justice was the fact that someone had videotaped the incident and the disseminated video garnered Worldwide condemnation for the brutal beating and abuse of power depicted. Unfortunately for the African Community, the trial and subsequent acquittal of the police officers involved in the incident was not a step towards justice but yet another powerful reminder of their fragile, second-class and marginalized place in America. Enough was enough and Los Angeles went up in flames. As stated by acclaimed film director John Singleton, “By having this verdict, what these people done, they lit the fuse to a bomb.”[1]

Although some measure of solace was achieved following the initial acquittal of the officers following the leveling of new federal charges against the officers and the subsequent guilty verdicts for officer Stacey Koon and Lawrence Powell to believe that the American Justice has reformed and that the systemic injustice perpetrated against minorities, and certainly the African American community is a laughable proposition. Not only are African Americans incarcerated at higher rates than Whites, but blacks also, on average, receive much harsher sentences measured against whites for the same crimes. However, what is especially troubling is that in the decades since the Rodney King beating and subsequent L.A. riots, blacks are still routinely abused by police officers, and this certainly is not limited to those located in Los Angeles.

In 2012, an unarmed child named Trayvon Martin was followed and subsequently killed by George Zimmerman in Sanford, Florida. Despite the fact that Zimmerman had stalked Martin simply because he looked suspicious, presumably because he was black and wearing a hoodie, after interviewing following Martin’s death, let him go free that same day citing Florida’s Stand Your Ground Law which they felt Zimmerman complied with. Unfortunately, Zimmerman’s death was the first in a series of horrific and prominent deaths against blacks wherein the dubious actions of police officers were called in to question. Notably these subsequent incidents often involved police officers being the trigger-person. For example, following Martin’s death Michael Brown an unarmed black teenager was shot and killed by a police officer in Ferguson, Missouri and Eric Garner an unarmed black man selling loose cigarettes was choked to death following an altercation with police officers in New York. While certainly horrifying, the deaths of Martin and Garner are only two examples across many from 2012 through to the present wherein black Americans were being killed by the police for seemingly innocuous reasons and under dubious circumstances.

Although the Black Lives Matter movement and a wave in social unrest drew attention to the ongoing brutality and injustice continuing to plague the black community, despite some positive reforms (like the use of body cameras by police for example), justice still appears elusive, especially given the overwhelming lack of prosecution for police atrocities and acquittals police officers enjoy despite the evidence (including video evidence) for the atrocities they are brought to court over.

So what is the solution?

In Part II of O.J.: Made in America, Simpson attorney Barry Scheck is interviewed about the difficulty in holding police officers accountable, and Scheck for his part states that he believes that much of the difficulty in bringing police officers to justice is that prosecutors have difficulty in prosecuting police officers simply because they have very limited experience in doing so. While I am very impressed with Mr. Scheck’s track record, not just for his work in the Simpson trial but with his involvement in the Innocence Project, I do take issue with Scheck’s simple assessment that lack of experience is why so few police officers are prosecuted and prosecuted successfully for the crimes they commit. More specifically, while I believe that most prosecutors are highly skilled and fully capable of prosecuting police officers, it is my firm contention that the relationship prosecutors have with their local police force puts them in a very difficult position in regards to prosecuting the very people they rely on as witnesses and experts in most of the criminal proceedings they handle on a regular basis. According to an article in the American Law and Economics Review entitled Convictions versus Conviction Rates: The Prosecutor’s Choice, American prosecutors at the state level have an 85% conviction rate for the felony crimes they prosecute (and 90% at the Federal level), and as such it would appear that prosecutors are entirely capable of effectively performing their jobs. The position that prosecutors are unable to prosecute someone simply depending on who that defendant is not logical on its face without an extraordinary factor accounting for this selective job performance.  As such, it is very plausible, if not entirely explanatory, that it is the relationship between prosecutors and their local police that accounts for not only police being rarely prosecuted for serious crimes like civilian shootings but the vast difference in conviction rates between prosecutors prosecuting police (33%) and prosecuting the general public (85%). Due to the fact that prosecutors often rely on police cooperation in prosecuting the vast majority of cases before them, it is obvious that their ability to gain convictions against civilian members of the public hinges on the positive and collaborative relationship prosecutors enjoy with police and as such, their ability to successfully do their job is dependent on their relationship with (local) police.

In sum, it is the relationship between prosecutors and police which is the logical explanation for why more police officers are not brought to justice and not the theory that they are merely inexperienced in prosecuting police because that theory is dependent on the idea that highly skilled prosecutors suddenly lose their education, training, and years of prosecutorial experience depending on who the defendant is, and of course this is totally out of the realm of possibility. And while some have attempted to highlight that police officers often tend to be believed more than members of the public and that this fact looms large in explaining the disparity in conviction rates between police and members of the public, that rationale while perhaps a factor with respect to convictions, does not apply to the rarity of charges being brought against police officers in the first place. Again, the logical explanation for police avoiding justice hinges on the relationship between prosecutors and police.

It should be noted however, that this relationship problem between prosecutors and the local police departments they regularly rely on can be largely alleviated if members of the police are prosecuted by prosecutors outside the region they normally operate within. For example, while the four police officers accused of misconduct in the Rodney King beating were acquitted at the local/state level by prosecutors, when they were tried by unfamiliar prosecutors at the state level two of the officers were convicted of misconduct. As such, while this is only one example of police being found guilty of misconduct by prosecutors they do not ordinarily have a relationship with, it is logical that once the symbiotic relationship between prosecutors and their local police department is removed, that not only will outside prosecutors not hesitate to bring charges against police officers, but that these cases can be prosecuted on their merits free from conflict of interest. As such, allowing outside prosecutors instead of local prosecutors to try local police officers accused of high crimes is entirely within the purview of justice because it not only eliminates the overt conflict of interest, but lends itself to trials free from bias and privilege.

Finally, it should be noted that a system where outside prosecutors handle matters concerning police misconduct also strengthens the entire justice system as a whole because not only would law enforcement be appropriately held accountable for their actions in instances of wrongdoing, but members of society, including historically marginalized communities, would have greater confidence in the fair administration of justice and in turn, feel safer in their daily lives.

Hopefully the much needed change regarding who prosecutes the few police officers who do not perform their duties in a lawful manner (especially in instances of high crimes) is a change that can come about based on logic and past experience and not one necessitated after another prominent and bloody wave of civil unrest. I suppose only time will tell.

[1] CNN Documentary Race + Rage: The Beating of Rodney King, aired originally on March 5, 2011; approximately 14 minutes into the hour (not including commercial breaks).

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