To Serve & Protect

One has to wonder about the Harris County Criminal Lawyers Association.

They’re either incredibly stupid, incredibly mean, or they just don’t like being criminal defense lawyers.

Or maybe they just love cops.

On the other hand, notwithstanding the comments of one misguided lawyer claiming to speak for the Association, maybe things aren’t as clear-cut as they appear. Paul Kennedy, one of the board members of the Harris County Criminal Lawyers Association, is of a different opinion.

“What is it we’re talking about here, anyway?,” you ask.

You didn’t need to ask. Though I can at times be deliberately vague about things, I was planning to explain.

There is a video, which had previously made an appearance elsewhere on the Internet, and also on Paul Kennedy’s blog, showing a group of police officers kicking the bejeezus out of a unarmed child lying prone on the ground. (I posted so many links to the video in case some of them disappear into the ether Internet.)

A number of officers were suspended after “the event.” Holley, despite what the defense says is a lack of any evidence, went on to be convicted for burglary and was sentenced to two years probation — and no social networking. (I’ve no idea where that last part comes in.)

The position of the Harris County Criminal Lawyers Association Christopher L. Tritico, believed by himself and some other people to be a criminal defense attorney, is that releasing the video to the public means the officers will not get a fair trial.

The release of this video, its airing and the rush to judgment by those who know better is a direct assault on the Bill of Rights. Lawyers on both sides of the docket have opined after the video was made public that these defendants will have a hard time getting a fair trial now. They are absolutely right.

The mayor of Houston, who originally opposed releasing the video, now agrees it was wrong not to release it sooner.

I agree that even the po-po should get a fair trial. But whether the ersatz criminal defense attorney is correct that these po-po cannot now get a fair trial depends, I think, on what it means to get a fair trial.

Does getting a fair trial mean that the jury will have no knowledge whatsoever about the case before a trial starts? If that’s true, then shouldn’t there be a blanket rule that newspapers cannot publish anything about a person charged with a crime until (at least) the trial starts, or (possibly) until after the jury reaches a verdict?

I’d like to see Chris Trico and the other prosecutors support that idea!

On the other hand, I wouldn’t, because that would mean muzzling a free press. It would also mean preventing the public from a necessary education about those who “serve & protect” — the unobserved “motto” imprinted on so many police cars and so few police minds.

The truth of the matter is that there are literally hundreds (at least) of videos available to anyone who wants to find them, showing police officers beating, kicking, or otherwise committing crimes against people they believe, without benefit of “a fair trial,” to be guilty of having committed crimes. As I noted in The Great Train Wreck of the Republic,

It doesn’t matter if you’re driving a stricken patient to the hospital in an ambulance. (Video.)  It doesn’t matter if you’re an innocent victim and called the police for help.  (Video.)  It doesn’t matter if you’re lying on the ground with a broken back.  (Yep, video.)  Or if you’re already a paraplegic.  (Video.)  It doesn’t matter if your hands are cuffed behind your back.  (Video.)  Or if you’re cuffed and several officers have you pinned to the ground.  (Video.)  Sometimes, if you’re lippy, you just have to be handled, even if you’re only 15. (Video.)  Or 5 (yes, that’s five).  (Video.)  Or 62.  (Video.)  Or 87.  (Video.)  Or if you’re in your home.  (Video.)  You might just be out for a bicycle ride.  (Video (Update 2/12/2017: link broken).)  It doesn’t matter if you’re mentally challenged.  (Video.)  It doesn’t matter how smart you are.  (Allegedly there is video, but I can’t find it; another story alleging there is video.)  It doesn’t matter if you’re a reporter doing your job.  (Video.)  It doesn’t even matter if you’re not the person they were looking to beat.  (No video.)  It doesn’t matter if you’re one of their own.  (Video.)  Heck, sometimes they get so confused, they even attack themselves!  (Video and video.)

When the po-po decide you’re guilty, they sometimes dispense their own justice on the spot.

This, of course, does not mean that the officers in the video should be convicted for the crimes the camera appears to show them committing, without “a fair trial.” After all, it is entirely possible that there is some explanation for what happened.

Descartes, for example, would probably argue that, being soul-less, or mind-less, the officers were incomplete and therefore probably not the cause of the kicking.

Modern folk would simply argue that the incompleteness is to be found right there in the video: “It doesn’t tell the whole story.” (Update 9/26/2016: link broken) And sometimes that’s true.

In this particular video, though, I have a hard time believing that the kid, who is seen being struck by a police car, flying over it, and then immediately surrendering, needed further violence to take him into custody.

Still, even to argue about that is, to a certain extent, missing the point. The original question had to do with whether or not the officers can get a fair trial if the public is allowed to see the video before the trial starts.

So, what is a fair trial?

A fair trial is a trial where, among other things, a person is not arbitrarily arrested (or detained), has the right to know the reason for his arrest (or detention), has the right to legal counsel, has equal access to (and equality before) the courts, receives a fair hearing with procedural equality between the defense and prosecution at trial, has the right to a public hearing (hmmm…), has the right to a competent and independent and impartial tribunal (good luck on that one for most defendants), has the right to a presumption of innocence, adequate time and facilities for the preparation of a defense, trial without undue delay, the right to put on a defense through oneself or counsel, the right to examine witnesses, isn’t required to confess guilt or otherwise provide incriminating evidence, and so on.

None of these things are obviated by releasing video of the events. Some, I’ll agree, may be impacted by commentary accompanying the public showing of the video. But why should police officers be treated any differently than ordinary citizens in this regard? When an ordinary person commits a crime, no one argues that there should be a news black-out, or that existing video(s) should not be shown, because of the fear that the jury may be prejudiced. Even assuming — and this is an assumption — the release of the video creates prejudice, why make a different rule for police officers?

At any rate, providing the officers with “a fair trial” does not mean withholding video evidence from the public simply because it appears to show the officers committing a crime. As courts, like this California court, frequently tell us,

‘Undue prejudice’ refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis: ‘The prejudice which exclusion of evidence…is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. “[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is ‘prejudicial.'”‘ ^[1]People v. Hollie, 180 Cal.App.4th 1262, 1276-1277, 103 Cal.Rptr.3d 633 (Cal.App. 1 Dist. 2010).

The fact that the video appears to make the officers look guilty does not in and of itself necessarily preclude the officers receiving a fair trial if the video becomes public. If my own experience with criminal defense in Fresno, California, is any guide, the public is always much more interested in giving officers a pass than in finding them guilty. The video evidence is “prejudicial,” but only in the sense that “all evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case.”

I have no fear — and no doubt whatsoever — that if a jury is shown evidence that allows (not helps, but allows) them to find the video doesn’t tell the whole story, the officers will be acquitted.

As far as things look from where I sit, police officers may very well be the only people in America who can commit crimes and still get a fair trial.

If I’ve learned one thing since I became a defense attorney, it’s that you can’t count on the police to serve and protect the public, but you can certainly count on the public to serve and protect the police.