Even before the first witness was called in the Sean Bell trial, a defense attorney for one of the three officers charged with gunning down Bell flatly said that he thought his client and the other two officers would be acquitted in the killing of Bell. This was not typical attorney bluster. The defense attorney was right.
At first glance, there was good reason to think that he was off base in his prediction and that the cops that fired the volley of shots that killed Bell would be convicted. An anguished New York City Mayor Michael Bloomberg publicly questioned the shooting. Two of Bell's companions gave eyewitness testimony that the officers acted like Wild West cowboys and opened up without warning. And most importantly Bell was unarmed and seemingly posed no threat to the officers.
But expectations, witness testimony, seemingly unimpeachable evidence, and the official condemnation of the deadly shooting by city officials obviously weren't enough. There's equally good reason why it almost never is.
When cops go on trial for overuse of deadly force, their victims are generally young blacks and Latinos. The attorneys that defend them are top gun defense attorneys and have had much experience defending police officers accused of misconduct. Police unions pay them and they spare no expense in their defense. The cops rarely serve any pre-trial jail time, and are released on ridiculously low bail.
If the cops are tried by a jury, police defense attorneys seek to get as many middle-class whites on the panel 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.
Prosecutors have a big task in trying to overcome pro-police attitudes and the negative racial stereotypes. Two Penn State University studies on racial perceptions and stereotypes, one in 2003 and a follow-up study in 2008, 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 played hard on that perception and depicted Bell and his companions as thugs and drunkards who posed a threat to the officers.
Defense attorneys for the New York cops didn't have the advantage of a potentially pro-police jury. They requested and got a bench trial. But this wasn't a disadvantage to the defense. In a racially and emotionally charged case such as the Bell shooting, they figured they'd stand a better chance trying to massage and hone their evidence and testimony to a judge.
There is also no ironclad standard of what is or isn't acceptable use of force. 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 turned the tables and 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 that he feared for his life and fired in self-defense.
In the Bell case, the officer's attorneys used the same tact and argued that the officers feared for their lives when they fired. In his initial call to a supervising police lieutenant one of the charged officers, Gescard Isnora said he thought one of the suspects had a gun, made a suspicious move, and that the car they were in bumped him.
Isnora did not take the stand during the trial and say that. But fellow officer Michael Carey did and testified that the officers shouted warnings before blazing away at the unarmed Bell.
The code of silence is another powerful obstacle to convicting cops charged with crimes. 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 that retried 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 but on expert testimony on the use of force to prove that the officers went way over the top against King. Yet, they still only managed to convict two of the four officers.
Nailing cops for bad shootings is virtually impossible for even the most diligent prosecutor. The Bell case again proved that to be the case.
Earl Ofari Hutchinson is an author and political analyst. His new book is The Ethnic Presidency: How Race Decides the Race to the White House (Middle Passage Press, February 2008).