Saturday, December 10, 2016

GateHouse: Police officer convictions increasingly elusive

Matthew T. Mangino
GateHouse Media
December 9, 2016
In 2014, 18-year-old Michael Brown was shot and killed in Ferguson, Missouri by police officer Darren Wilson. This incident was described by St. Louis County Police Chief Jon Belmar as a "physical confrontation" that started inside a police car and spilled onto the street.
Attorney Benjamin Crump, who represented the family of Michael Brown at the time, told the USA Today, "Those who shoot and kill suspects often escape prosecution because the criminal justice system places a high value on an officer's word and often accepts their narrative of events."
Crump's words were prescient. Charges were never filed against Wilson and as we've learned during the course of the last month, even when charges are filed against a police officer conviction is difficult.
In the last 30 days, juries in South Carolina, Oklahoma and Ohio have failed to reach verdicts in cases involving police officers charged with murder.
The trial of a South Carolina police officer accused of murdering an unarmed black motorist was declared a mistrial this week. A video showed Officer Michael Slager, who is white, shooting 50-year-old Walter Scott, who is black, multiple times in the back as he ran away from the officer.
The jury deliberated for more than 22 hours over the course of four days, when Judge Clifton Newman announced that the jury was hopelessly deadlocked.
Contrary to original reports, the jury was not hung 11-1 in favor of guilty. Jury foreman Dorsey Montgomery II, told the "Today Show" that the jury had agreed that murder was not the appropriate charge and they considered a lesser charge of manslaughter, but five jurors could not vote for guilty, despite the fact that shooting a fleeing suspect in the back has long been outlawed.
In 1974, the United States Supreme Court in Garner v. Tennessee held that, under the Fourth Amendment, when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless the officer believes that the suspect poses a significant threat of death or serious physical injury to the officer or others.
Justice Byron White wrote, "It is not better that all felony suspects die than that they escape." He continued, "The fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect."
Last month, a judge declared a mistrial in the murder trial of now retired Tulsa police officer Shannon Kepler. The officer was off duty when he confronted his daughter's boyfriend and shot him in the chest and neck killing him and endangering others.
The jurors said they were stuck at 11-1 in favor of guilty. Kepler, who was off duty, claims that he was looking for his 18-year-old daughter. When he found Lisa Kepler she was with her boyfriend. Kepler then fired at the boyfriend with a .357-caliber revolver -- killing him.
This past month in Ohio, jurors hearing the case against University of Cincinnati Police Officer Ray Tensing could not reach a unanimous decision on charges of murder or voluntary manslaughter.
Hamilton County Prosecutor Joe Deters revealed that after 25 hours of deliberations the jury vote was 8-4 in favor of a voluntary manslaughter conviction. At least three jurors were willing to find Tensing, who is white, guilty of murder in the killing of the black motorist he shot during a traffic stop.
Jury nullification has long been accepted where a jury decides that the evidence supports conviction but renders a "not guilty" verdict because it feels that a conviction would be unjust.
Are these decisions by individual jurors the product of conscientious deliberation or "juror nullification?"
Some jurors may find it simply unconscionable to convict a police officer and by holding out -- juror nullification -- they can take a stand on what they perceive as the unjust treatment of the police.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll, 2010," was recently released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino
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