Nailing a Cop Takes More Than a Tape

The moment the Los Angeles County Grand Jury indicted Inglewood Police Officer Jeremy Morse last year for allegedly beating 16-year-old Donovan Jackson, Morse’s attorney, John D. Barnett, exuberantly declared that Morse would be acquitted.

At first glance, that makes no sense. On the face of it, the legal and public opinion deck seems so stacked against Morse that Barnett should be weeping in despair. The videotape pumped into millions of homes showed Morse body-slamming and punching Jackson. The howls of protest were so great that Inglewood’s police chief immediately slapped Morse with a suspension, and the mayor pronounced him guilty of everything from assault to child abuse.

Even U.S. Atty. Gen. John Ashcroft, frequently lambasted by civil leaders as soft on police abuse, called Morse’s action “disturbing” and dispatched his top civil rights honcho to head a federal inquiry. L.A. County Dist. Atty. Steve Cooley quickly convened the grand jury, which returned the indictment at breakneck speed.

But Barnett, who successfully defended one of the four officers charged with beating black motorist Rodney King in 1991, remembers what others have forgotten. Videotapes, public outrage and official condemnation don’t automatically mean convictions when it comes to prosecuting police officers.

In the King case, nearly everyone assumed that the tape and outraged public opinion sealed the fate of the cops who did the beating. They didn’t. The defense got a favorable change of trial venue and a skeptical jury, presented favorable witness and officer support testimony, played up King’s unsavory past and benefited from what seemed like a less-than-fierce prosecution effort. This was more than enough to obliterate the horrific visual impact of the tape. The officers were acquitted of the major charges in their first trial.

The King debacle is dramatic proof of the grave danger of banking on a tape to convict bad cops. Yet it’s not the only obstacle in police abuse cases. Another is that the jurors who tend to be impaneled are likely to be conservative, middle-class and nonblack. Many of these jurors bring their own racial biases to the jury box. They are likely to believe the media-driven stereotype of young blacks as crime- and violence-prone. Attorneys who defend cops seek jurors like these because they think they are more likely to believe the testimony of police and prosecution witnesses than that of black witnesses, defendants or victims. They got their wish for the Jackson beating trial. There is only one black on the jury.

Another problem is that there are no ironclad standards of what is an acceptable use of force. It often comes down to a judgment call by the officer. In the King case, defense attorneys turned the tables and painted King as the aggressor and claimed that the level of force used against him was justified.

In a trial stemming from a 2001 Cincinnati shooting that ignited three days of riots, a judge summarily acquitted white Police Officer Stephen Roach, charged in the death of Timothy Thomas, 19. The judge bought Roach’s tale that he feared for his life and fired in self-defense. Barnett can be expected to use the same tactic -- tarring Jackson as the aggressor.

The code of silence is another powerful obstacle to convicting bad cops. Officers refuse to testify against other officers, or they tailor their testimony to put a police action in the best possible light. For instance, Bijan Darvish, another police officer on trial with Morse, is charged with falsifying the report of the Jackson beating. But what if he hadn’t been suspected of doctoring his report? It would have stood as the official version. In addition, prosecutors are barred on grounds of self-incrimination from using statements made during internal investigations of officer misconduct. This knocks out another potentially crucial prosecution weapon.

Federal prosecutors who retried the officers in the King case learned a vital lesson from the abysmal failure of local prosecutors to convict them. They did not rely exclusively on the tape but on expert testimony on the use of force to prove that the officers went over the top against King. But despite the great amounts of time, resources and care they devoted to the case, they still managed to convict only two of the four officers.

Barnett well knows that nailing cops is a rough task for even the most diligent prosecutor. He’s betting that it will take much more than a tape to nail his client. It’s not a bad bet.

Earl Ofari Hutchinson, a political analyst, is author of “The Crisis in Black and Black” (Middle Passage Press, 1998).