Samuel DuBose, Sylville Smith, Philando Castile, and Terence Crutcher, Tulsa cop. Four black men slain by police in three cities at four different times. The circumstances in all four cases, though, were, eerily the same. The killings came after stops by the officers. The men apparently posed no physical threat to the officers. Two were shot while running away. The other two were shot in their cars. There was chilling video footage of the killings. The only twist in the shootings was that two of the officers who were not convicted, one was a mistrial, were not white cops. One was Black, the other Hispanic. All four were either acquitted or there was a mistrial. The non-convictions of the cops brought the recent scorecard on police shootings of black men, to 0 out of 4. This is just the latest grim count of unsuccessful prosecutions in dubious police shootings of blacks when the cops are hauled into a criminal courtroom.
The police killings of black men, who in most of cases were unarmed, and the non-convictions of the cops who kill them has become not only commonplace, but expected. It makes no difference whether there’s a video that shows beyond any question that the victims posed no threat to the officers, had no weapon, or were shot from a distance, often in the back. The universal shout is that the killings and the acquittals of the police who kill them are simply more proof that the system is violent, racist, and hateful of black men whose lives have no value. That may be. But it doesn’t tell why cops have virtually a guaranteed walk free pass from judges, juries, and prosecutors the rare times that they do wind up in a court docket in the killing of a young black.
The reason for that tells much about the way the over use of deadly force by officers is treated within the criminal justice system. The starting point is the decision to prosecute the officer. There are two absolute indispensable elements for that to happen. One, the video footage of the killing that appears to show beyond any doubt that the officer wantonly killed the suspect. The other is that there is mass public outrage, protests, or even the threat of violent disruptions, if there isn’t a prosecution. Even then, prosecutors tread very deliberately and warily, knowing that getting a conviction is a fierce uphill slog. The defense attorneys for the accused cops make that a certainty.
They are among the best in the defense trial business with lots of experience defending police officers accused of misconduct. Police unions bankroll their defense and spare no expense. The officers are immediately bailed out and they will serve no actual pre-trial jail time. Their defense attorneys have three time-tested legal ploys. One is they play for time. They know that memories dim and passions cool, and the cases quickly drop from public and media focus. They file countless motions demanding the charges be dropped or reduced. They’ll occasionally demand a change of venue. In each case, the time clock is running in the case.
They often seek a bench trial, but when that is denied, no matter, the clock is still running pending a decision. If the case goes to jury, defense attorneys seek to get as many middle-class people, whites and even blacks and Latinos, on the jury as possible. The presumption is that they are much more likely to believe the testimony of police and police defense witnesses than black witnesses, defendants, or even the victims.
The negative perceptions of blacks, especially black males, by much of the public is one problem. The even more daunting problem is that there is no ironclad standard of what is or isn’t an acceptable use of force in police killings. It comes down to a judgment call by the officer. The time-tested standard that is virtually encoded in law is that “I feared for my life.” This will be stated, massaged, and repeated in every conceivable way by defense attorneys during their presentation. They’ll bolster that by painting a vivid and fearful picture of the defendant as violent and aggressive. The message being that the use of deadly force was both necessary and justified. The cases often hinge heavily on the video footage that will prove beyond a shadow of a doubt that the officer overused deadly force. It does no such thing. Defense attorneys twist, turn, dissect, re-dissect, analyze and reanalyze the footage from every earthly angle. They claim that it really doesn’t show what led up to the slaying, doesn’t fully show the danger to the officer, doesn’t show the officers giving instructions to him to comply, and is too limited in the angle that it was shot. They will have a use of force and a technical expert testify to the validity of that claim. It’s still a matter of what you see is not what you see in these cases.
Prosecutors know the odds are stacked against them in convicting cops who kill because of those odds. The recent shut out in convicting them does nothing to change those odds.
Earl Ofari Hutchinson is an author and political analyst. He is an associate editor of New America Media. His forthcoming book, The Trump Challenge to Black America (Middle Passage Press) will be released in August. He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.