There was no mistaking the intent with the word JUROR emblazoned in red. I’d been summoned for duty and not for the first time; only now I decided to give new thought as to how to answer one of the standard, preliminary questions:
“Would you be more likely to believe the testimony of a police officer or any other law enforcement officer because of his or her job?”
On prior occasions, my answer has been a reflexive “yes,” but a lot has happened since I was last commanded to appear. The video age gave me pause before answering that question, but did not delay my response to the follow-up, which asked whether I would be less likely to believe the word of a cop. On that I remain an emphatic “no.”
It’s worth noting that the widespread use of video has not increased the conviction of cops in cases of alleged manslaughter or murder. In fact, videotape has often exonerated police officers, and in some high-profile cases where video played a role, charges were never brought, such as the 2014 killing of Michael Brown by Officer Darren Wilson in Ferguson, Mo. Wilson was not charged after investigations by both a state grand jury and the Justice Department.
Video also played a role in the evaluation of the Eric Garner case on Staten Island, N.Y. Garner was placed in a chokehold after selling loose cigarettes. There were no charges filed against police concerning Garner’s death. And in Ohio, a grand jury watched an enhanced video of the arrival of Cleveland police responsible for the killing of 12-year-old Tamir Rice. Again, no charges.
In Baltimore, six police were charged in connection with the death of Freddie Gray. There, video captured him being dragged to the police van but not what happened inside. Three cops were acquitted at trial; charges against three others were dismissed.
But two weeks ago, and for the first time since Ferguson raised awareness, a police officer pleaded guilty based largely on what was captured on video. Former North Charleston, S.C., police officer Michael Slager pleaded guilty to civil rights charges for shooting Walter Scott five times in the back. Scott ran after being pulled over for a broken taillight.
To be clear, the combination of these instances has not made me think less of police — they’ve just made me think more deeply about whether my prior position of giving them an edge in testimony was proper. The data suggest I’ve not been alone in giving that benefit.
Since 2004, Philip Stinson, a former cop-turned-associate professor of criminal justice at Bowling Green University, has been tracking what he refers to as “police crime.” He told me that police officers get arrested in this country about 1,100 times each year (everything from shoplifting to murder). Stinson said data from 2015-16 show that about 1,000 people are shot and killed by on-duty officers annually and that it’s rare for a police officer to be charged with murder or manslaughter resulting from an on-duty shooting.
“By my count, since the beginning of 2005, there have only been 80 police officers across the country charged with murder or manslaughter resulting from an on-duty shooting,” he said. The dispositions (current as of today) of the criminal cases for those 80 officers are: 29 convicted, 31 not convicted, and 20 still pending (which include a few with mistrials awaiting retrial). Of the 31 non-convictions, 48 percent were acquitted at a jury trial.
“Here is what I have concluded from all of this: It seems that jurors are very reluctant to second-guess the split-second life-or-death decisions made by an on-duty police officer who decided to use deadly force in a violent street encounter,” Stinson said. “Something happens behind the closed doors of the jury room during deliberations, and jurors just don’t want to convict an officer in these cases. Jurors seem to give the benefit of every doubt to the defendant/officer.”
But are those numbers in decline? It’s tough to say.
Brian J. McMonagle, who is on Bill Cosby’s defense team, told me he still sees a greater number of prospective jurors more inclined to believe police, but conceded that his representation of the Fraternal Order of Police might “shape his opinion somewhat.”
Veteran criminal defense attorney William J. Brennan said he has seen a change in the responses to these questions. “In 2016 I represented a Caucasian Philadelphia police officer charged with threatening an African American in front of Pat’s Steaks and using the N-word repeatedly,” Brennan said. “I can tell you the pool of jurors and their responses to the questionnaire gave me great pause while picking the jury.”
Locally, no data are kept that allow a determination as to whether fewer are inclined to give cops the benefit of the doubt, but here’s a snapshot: Last week, plaintiff’s trial lawyer Tom Kline, of the firm Kline & Specter, where I am of counsel, picked a jury in Philadelphia concerning a medical-device product-liability case.
Kline told me that among his 60 prospective jurors, nine said they’d be more likely to believe an officer, and six said they’d be less likely. There was gender and employment balance in both those responses. The men more likely to believe a cop included a teacher, a letter carrier, a retired police officer, a bus mechanic, and a retiree. The women were a social worker, a cashier, a word processor, and an underwriter assistant. The men less likely to believe a police officer were a marketing employee, a teacher, and a custodian. The women less likely were a social worker, a business service representative, and an IT worker.
Former Philadelphia Commissioner Charles Ramsey feels differently.
“I am biased toward police, so I would give greater weight to their testimony,” he told me.
Ramsey said that part of his bias is based in his belief that cops “see things normal persons don’t see,” but he did acknowledge instances where police have not been honest on the stand and cited the work of the Innocence Project. He also told me that when he was a young cop, together with his partner, he made many “gun pinches” but only once saw the butt of a gun. That’s why he’s often circumspect in disputed shootings when there is such an alleged sighting. Still, he said that he’d make an assumption that the law enforcement officers were being truthful, while not surrendering to naivete.
I’ll be at the courthouse in a few weeks. And committed to treating everyone as equals.
Michael Smerconish can be heard 9 a.m. to noon on SiriusXM’s POTUS Channel 124. He hosts Smerconish at 9 a.m. Saturdays on CNN.