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Note:  An edited version of this article appeares on page 7 of today's New York Sun.  The column below is three times as long as the Sun article, so be warned or be enticed, whatever.


March 21, 2007


The indictment of three police officers in the aftermath of the Sean Bell shooting, the tragedy that occurred on November 25, 2006, has gratified some people and troubled others.   The issue in the case involves the instant decisions police officers must make, on the basis of imperfect knowledge, of what other people are likely to do in the next few seconds.
 
The background to these decisions is the heroism and sacrifice of other police officers, including auxiliaries, who have been killed or wounded while protecting New Yorkers’ lives.  The cases of mistaken police shootings, and the criminal trial of police officers that follow, as in the Amadou Diallo case, may also be in the officers’ minds during the seconds they have to decide how to act.

Here are four articles we have selected. one from each newspaper, as the most informative on the Bell case.  They range from reportage to news analysis to editorials.  You can link to them and learn more about the situation.

INDICTED OFFICERS LIKELY TO SEEK OUT-OF-CITY TRIAL, The Sun, Mar 20, p1,c5-6. by Bradley Hope.  "Defense attorneys ... likely will attempt to have their clients' trial moved out of the city on the basis that potential jurors in Queens have been exposed to biased accounts of what happened that night and community demands for a conviction, legal experts said."
 
CRIMINALIZING TRAGEDY.  Post, Mar 20, p30 Editorial: "Bell and his pals were celebrating his upcoming wedding at the Kalua Cabaret, a skeevy strip joint known for drugs, prostitution and guns.  The cops were there gathering evidence in an effort to shut the dump down.
"When Bell and his buddies left, chaos erupted.  Bell rammed his car into a police van and clipped Isnora, who was the first to fire his weapon.
"The fact is, sometimes police officers must fire their guns.  And when that happens, the consequences can be tragic.
"But criminalizing tragic outcomes deserves only to embolden criminals and to hamstring the police.
"And to propel New York City back toward the abyss."
 
AFTER BELL, CRITICS WANT MAYOR TO BROADEN FOCUS ON POLICE, Times, Mar 21, B1, News Analysis by Diane Cardwell  "In the months since the police shooting that left Sean Bell dead and his friends wounded outside a nightclub in Queens, Mayor Michael R. Bloomberg has kept up the measured, inclusionary tone that he struck from the beginning."
 
A TRAGEDY,NOT A MURDER  Without Evidence, It's Utterly Irresponsible to Say Cops Set Out to Slay Sean Bell. News, Mar 21, p29, by Michael Goodwin. "A madman walks into a pizza joint and shoots a man behind the counter at point-blank range.  He runs into the Greenwich Village street and guns down two unarmed auxiliary cops, pumping six bullets into one, execution-style.  That is murder.
"Five brave police officers working in plainclothes in a Queens bar notorious for drugs and prostitution believe one of the men they're watching has a gun.  The officers, later thinking the man and his companions are trying to run them over with a car, all fire their guns.  The hail of 50 bullets leaves one unarmed man dead, and two wounded.
That is a horrible tragedy."

The slow and contentious procedure of criminal law is an imperfect way to determine responsibility and the degree of fault in this kind of situation.  It appears that some police officers made errors in the Bell case; otherwise you would not have three people shot, one fatally, with none carrying a weapon. The fifty shots fired give the police conduct the air of over-reaction, just as the 41 bullets fired at Amadou Diallo on February 4, 1999, had a strong impact on public opinion, leading many to the conclusion that the police had not acted properly.  The Bronx County District Attorney indicted the police officers on March 25 for second-degree murder.  The the trial was moved by the Appellate Division to Albany County, and the four officers were acquitted by the jury in February 2000 after two days of deliberations.

It is hard to believe that the Diallo shooting occurred over eight years ago. The clearly unjustified torture of Abner Louima took place ten years ago. A  great deal has happened since so the cases have remained in the public consciousness.  The cases were periodically described as characteristic of police conduct in New York City., but if they were, thre would have been many more cases.
 
The Diallo case was far simpler factually than the Bell case.  In Diallo, one man,  when leaving his home in the Bronx, was confronted by police in his vestibule and reached for the identity papers in his pocket, as is done in his native Senegal.  The movement was perceived by an officer to be reaching for a gun.  A fusillade by four officers ensued.  The Diallo case was awful, the Bell case, although equally tragic, is murkier. Sean Bell did drive a car into other vehicles and was said to have clipped a police officer. He may have done this because he was fleeing the scene; that is an issue that will arise at the trial of the three indicted officers.
 
The next legal skirmish will take place over the minutes of the grand jury.  The defense will make a series of motions relating to the presentment by the district attorney to the grand jury. These motions rarely succeed.

The next issue will be the location of the trial.  Defense lawyers will try to move it out of town, preferably to an upstate county where the case has not been so widely publicized, and where there will not be as many African-Americans in the jury pool. The defense will point to the frequent anti-police demonstrations in Queens over the last few months as inflaming public opinion on the case.  Rev. Sharpton has been quoted as saying, "I'm going to keep this in the street."

Queens District Attorney Richard A. Brown will oppose the motion for a change of venue. The concept is quite reasonable; if a man had been lynched and the leaders of the lynch mob were on trial, the prosecution could well want the case moved to another county, where the jurors were less likely to be intimidated by the lynchers and their friends.  The interests of justice are best served by an impartial jury, and residents of the immediate area of the tragedy are likely to be familiar with the case and to have formed opinions on it, whether they admit it or not during the voir dire.

The judge who will preside over the case, Justice Arthur Cooperman, 73 years old, was certificated twice by the Appellate Division to serve beyond the retirement age of 70.  He worked his way up the political ladder, going from Assemblyman to Civil Court Judge to Supreme Court Justice.  He was chosen to preside at this trial by random selection from a wheel containing the names of those other judges who volunteered their services. Judge Cooperman is highly unlikely to grant the motion for a change of venue, because he wants to preside over this important case.

He can gain in stature if he does a good job, or he could lose much of his reputation, as Judge Lance Ito did after presiding in the O.J. Simpson trial in California in 1995.  In that miscarriage of justice, the murderer was acquitted, and the judge was held partially at fault for losing control of the courtroom to forceful defense attorneys..

So far, Judge Cooperman has allowed video cameras in the courtroom, with the unusual proviso that he not be photographed.  His decision on venue is likely to be appealed by the losing side, because the site of the trial, and the likely difference in attitude between jurors in different locations, may be instrumental in determining the outcome.  People with varying backgrounds and different experiences with lawa enforcement personnel may draw opposite conclusions from the same set of facts.
 
Legal observers said that the Diallo indictment for murder by a Bronx County grand jury was over-charging because, mistaken as the police obviously turned out to be,  they could not be found beyond a reasonable doubt to have murdered Diallo without believing they had just cause.   The description, at the time, of the white police officer sitting on the ground crying after no gun was found on the victim indicates that the police did not shoot out of malice.  Diallo would have been just as dead after one or two well placed shots than 41 bullets from four officers, of which 22 missed the target entirely.  Although in these circumstances a single shot would have been an error of judgment, it was the multiplicity of bullets which made the case scandalous.
 
Out of curiosity, we wonder how many shots struck the white David Garvin Wednesday night on Bleecker Street right after he executed two young auxiliary police officers who were following him because he had just committed his first murder of the night in a pizza shop.  Although many shots were said to have been fired, the press did not report the exact number in this case of a clearly justified police shooting..
 
Rev. Sharpton yesterday, speaking at his Harlem headquarters, volunteered his opinion on where the trial should be held.   "The question of venue change is not only wrong but insulting the intelligence of the public and the intelligence of the court.  We will not participate in or co-operate with a trial outside of Queens County."
 
What effect Sharpton's non-cooperation would have on the trial is unclear.  If he can induce the other two men who were shot not to testify, that would only aid the defense. Since they can be subpoenaed by the prosecution, they cannot follow the Reverend’s dictates without risking trial for contempt of court.  We may see to what extent the non-cooperation of a spokesman for relatives of the allegedThe  victim will have on the course of justice. It is more likely that the Reverend will change his mind and co-operate with the prosecution, although it is not clear what impact, if any, that would have on the case.
 
The outcome of this important trial should not be determined by the make-up of the jury and their attitudes toward police officers.  Two of the three defendants are black, as is the victim, so this is not a straight race case. But New York State has 62 counties, and there is no question that people in different counties often have different views of the world and the police which could be reflected in their decisions as jurors.
 
Should there be a better way of determining responsibility and the degree of fault in cases like this, where the response of police officers to wrongly perceived threats have resulted in tragedy?

The right to trial by jury applies to defendants, and they could choose to be tried before a judge.   But even in that situation, the venue of the case would be important.  There are judges, and then there are other judges. Their attitudes may also depend on their education and their location, as well as the identity of those who put the judge on the bench, and those who can promote the judge to a higher court (not applicable in this case because the judge is too old to be promoted).  The robe does not immunize its wearer from ambition or the desire for public attention.  In fact, it may enhance those attributes.
 
We have a long distance to travel with regard to the Bell litigation.  The matter , including interlocutory appeals, will probably take years to resolve.  Whatever the outcome, we hope the case dissuades some police officers from shooting too quickly.   We hope it does not dissuade others from shooting when it is necessary.  There are psychotic and depraved people out there, and they will kill other people if they have the chance.  There were about 600 murders in New York City in 2006.  (There were 572 in 2005, the lowest recent total.)  The peak year was 1990, when there were 2245 murders.  The major part of that reduction took place during the eight years of the Giuliani administration.  (The statistics exclude the 2001attack on the World Trade Center.)
 
Nonetheless, as many New Yorkers were murdered last year as fell in 1854 in the Charge of the Light Brigade.   And the situation in New York is far worse than in the Crimea, because the Light Brigade consisted of military combatants, while the toll in New York City is comprised primarily of  innocent civilians, including women, children and the elderly.  Burned to death by arsonists, beaten, strangled or defenestrated by husbands and ex-boyfriends, robbed and shot or stabbed by addicts looking for drug money, raped by psychopaths, shot in their beds or on the streets by random bullets from fighting gangs or reckless,dimwitted or drunken shooters, every one of these deaths is a tragedy for the victim and the family.   Drug dealers or Mafiosi killed by their colleagues in financial or territorial disputes are murders that do not upset the general public, although these victims also leave bereaved relatives, including children, who did not choose a life of crime.

The number of innocent civilians wrongly killed by police officers is a minuscule share of the city's fatalities, but one such death is too many because the state is forbidden to use deadly force against its citizens or aliens, unless the officer is actually threatened with lethal force.  The problem is the difficulty of determining, in the dark of night, whether there is an actual threat. What if the officer reasonably believes there is a threat of lethal force.  It may be that if you kill someone you must be certain that he is trying to kill you, and a reasonable person in your shoes would come to the same conclusion..  Suspicion of intended violence is not enough.   It is better for an officer to err on the side of caution, unless that error makes his wife a widow and his children orphans.  That is the dilemma in these cases.  What if an officer's decision, apparently reasonable at the time it was made, turns out to be wrong? 
 
There is no perfect way that we know of to resolve the questions of fact and law that arise when such a tragedy occurs.  Just as we rely on elections to determine who holds public office, we rely on the judicial system to determine who is guilty and who is innocent of criminal charges. Whatever the result may be in a particular case, in the long run the courts are probably the best places to go for justice.  However,  to paraphrase the great Winston Churchill, they are the worst places to find justice, except for all the others.

 
#360  3.21.07   2456wds