CONVICTIONS UNLIKELY FOR COPS IN SEAN BELL KILLING

by Earl Ofari Hutchinson

(PNS) -- New York police officer Michael Carey dealt a body blow to the prosecution's hard effort to convict the three cops charged with killing Sean Bell. Carey flatly said that the officers shouted warnings before blazing away at the unarmed Bell.

The November 2006 shooting of Bell, a bridegroom, and the wounding of two of his friends, ignited public fury and protests. But after Carey's defense testimony, that may not be enough to get a conviction. When cops gun down even apparent innocents, their word carries a great weight with judges and juries that, more often than not, trumps witness testimony and seemingly unimpeachable evidence: even the rare condemnation of a police killing by city officials. New York City Mayor Michael Bloomberg called the Bell shooting "unacceptable."

When cops go on trial for overuse of deadly force, their victims are generally poor blacks and Latinos. The defense lawyers are top guns, with lots of experience defending police officers accused of misconduct. Police unions bankroll their defense and spare no expense. Cops rarely serve any pre-trial jail time, and are released on ridiculously low bail. That was the case with these New York cops.

If the cops are tried by a jury, police defense attorneys seek to get as many middle class people, whites and even blacks and Latinos, in the jury as possible. The presumption is that they are much more likely to believe the testimony of police and prosecution witnesses than black witnesses, defendants, or even the victims.

It's an uphill battle for prosecutors to overcome both pro-police attitudes and negative racial stereotypes. A 2003 Penn State University study found that many whites are likely to associate pictures of blacks with violent crimes, and in some cases where crimes were not committed by blacks they misidentified the perpetrator as an African American.

Defense attorneys for the New York cops don't have the advantage of a potentially pro-police jury. A judge will decide the officer's guilt or innocence because they requested and got a bench trial. For one thing, the case is being tried in Queens where the shooting took place, and there was no chance of finding jurors that didn't know anything about the case. Defense attorneys couldn't risk that many of those potential jurors would come to court with emotionally charged negative opinions about the cops. They figured they'd stand a better chance trying to massage and hone their evidence and testimony to a judge.

This is not the only weapon attorneys that defend cops have in their arsenal of weapons to get an acquittal. There is no ironclad standard of what is or isn't an acceptable use of force in police misconduct cases. It often comes down to a judgment call by the officer. In the Rodney King beating case in 1992 in which four LAPD officers stood trial, defense attorneys painted King as the aggressor and claimed that the level of force used against him was justified.

The four New York City cops tried for gunning down African immigrant Amadou Diallo in 1999 also claimed that they feared for their lives. The jury believed them and acquitted them.

In Cincinnati, a municipal judge summarily acquitted white Cincinnati police officer Stephen Roach of criminal charges in the slaying of 19-year-old Timothy Thomas during a traffic pursuit in 2001. The shooting ignited three days of riots. The judge bought Roach's tale: he feared for his life and fired in self-defense.

If, as Carey claimed, the detectives shouted a warning to Bell and his companions, that may be enough to meet the nebulous, yet minimal, legal standard to justify the officer shooting of an unarmed civilian; that the officers feared for their lives.

The code of silence is another powerful obstacle to convicting bad cops. Officers hide behind it and refuse to testify against other officers, or tailor their testimony to put the officer's action in the best possible light.

Prosecutors often are barred from using statements made during internal investigations of officer misconduct in court proceedings on grounds of self-incrimination. This knocks out another potentially crucial prosecution weapon. Federal prosecutors who re-tried the officers that beat King learned a vital lesson from the abysmal failure of local prosecutors to convict them. They did not rely exclusively on the videotape evidence but on expert testimony on the use of force. That proved that the officers went way over the top against King.

Despite the massive time, resources, and care devoted to that case, two of the four officers were still acquitted. Defense attorneys in the Bell case assume they can get a judge to do the same with their police clients. History seems to be on their side. <