Sean Bell, RIP

A Memorial To Sean Bell

I'm shaking my head at the verdict Judge Cooperman (without a jury) rendered yesterday in the Sean Bell murder case. I'm saddened and troubled. I think I understand the roots of his acquittal verdict, and I think there has been an enormous miscarriage of justice in this case. Unfortunately, this kind of injustice probably should have been expected because of the way the law acknowledges and fosters police exceptionalism. The defense lawyers for the detectives knew it and sought to benefit from it, and the prosecutors knew it as well but didn't block it.

Please join me in Kew Gardens.

The miscarriage in this case is only partially about race and the relationship between young, African American men and the New York City Police. That relationship is volatile, dangerous, oppressive, frightening, and frequently out of control. But race wasn't the only thing awry in this case. The other part, the part that is not receiving attention at the moment, is that the police, despite all of our pious insistence to the contrary, are different from the rest of us in the eyes of the law. They are exceptions to the rule of law. They are special and receive special treatment. How else can so many shots be fired with such devastating affect, killing one person and wounding others, at unarmed people with no judicial consequence? How else can the detectives have been found to have committed no criminal wrong whatsoever?

There's nothing new in seeing that the police are different from the rest of us, giving them a leg up in court just for their being cops despite repeated judicial instructions to jurors not to. And, believe it or not, there is a large segment of the population that wants it to be that way, that wants the police to be above the law, that wants the police to be unfettered by any law, that romanticizes the rogue cop. And the rules are repeatedly interpreted to support this invidious discrimination in which police are special and those they encounter on the streets aren't just other citizens who by the way are presumed to be innocent. No. They're perps. Defendants. Criminals. Skulls. Mutts.

Want to see that clearly? Let's return, briefly to the 1970 decision of Judge Irving Younger in People v. McMurty, one of the few judicial decisions that unintentionally illustrates police exceptionalism. Some excerpts from the famous decision:

For several years now, lawyers concerned with the administration of criminal justice have been troubled by the problem of ‘dropsy’ testimony. This case shows why.

The facts are simple. On July 23, 1970, Patrolman Charles Frisina arrested defendant James McMurty on a charge of possession of marijuana. McMurty moved to suppress the marijuana for use as evidence, and, in due course, a hearing was held. Frisina took the stand. In condensed but substantially verbatim form, he testified as follows:

‘At 8:30 p.m. on July 23, 1970, I was on duty driving a patrol car. While stopped for a light at West 3rd Street and Broadway, I observed two men in a doorway of the building at 677 Broadway. One of these men-James McMurty, as I later learned-saw the patrol car and stepped out of the doorway. From his right hand he let drop a small plastic container. I got out of the patrol car and retrieved it. In my opinion, based upon a fair amount of experience, its contents were marijuana. I approached McMurty, who had begun to walk away, and asked him if the container was his. He said no. I said that I had seen him drop it and placed him under arrest.’

McMurty testified that nothing of the sort happened. He'd never drop marijuana. The cops reached into his pocket, illegally seizing it. Judge Younger then wrote:

Were this the first time a policeman had testified that a defendant dropped a packet of drugs to the ground, the matter would be unremarkable. The extraordinary thing is that each year in our criminal courts policemen give such testimony in hundreds, perhaps thousands, of cases-and that, in a nutshell, is the problem of ‘dropsy’ testimony. It disturbs me now, and it disturbed me when I was at the Bar. Younger, ‘The Perjury Routine,’ The Nation, May 8, 1967, p. 596:

‘* * * Policemen see themselves as fighting a two-front war-against criminals in the street and against ‘liberal’ rules of law in court. All's fair in this war, including the use of perjury to subvert ‘liberal’ rules of law that might free those who ‘ought’ to be jailed * * * It is a peculiarity of our legal system that the police have unique opportunities (and unique temptations) to give false testimony. When the Supreme Court lays down a rule to govern the conduct of the police, the rule does not enforce itself. Some further proceeding * * * is almost always necessary to determine what actually happened. In Mapp v. Ohio, 367 U.S. 643, for example, the Supreme Court laid down the rule that evidence obtained by the police through an unreasonable search and seizure may not be used in a state criminal prosecution. But before applying the rule to any particular case, a hearing must be held to establish the facts. Then the judge decides whether those facts constitute an unreasonable search and seizure. * * * The difficulty arises when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them. Narcotics prosecutions in New York City can be so viewed. Before Mapp, the policeman typically testified that he stopped the defendant for little or no reason, searched him, and found narcotics on his person. This had the ring of truth. It was an illegal search (not based upon ‘probable cause’), but the evidence was admissible because Mapp had not yet been decided. Since it made no difference, the policeman testified truthfully. After the decision in Mapp, it made a great deal of difference. For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed. Then the police made the great discovery that if the defendant drops the narcotics on the ground, after which the policeman arrests him, the search is reasonable and the evidence is admissible. Spend a few hours in the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground, whereupon the policeman arrested him. Usually the very language of the testimony is identical from the case to another. This is now known among defense lawyers and prosecutors as ‘dropsy’ testimony. The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in Every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman. It follows that at least in some of these cases the police are lying.'

Judge Younger then noted statistical proof of the huge increase in dropsy cases since the decision in Mapp. And he then said that he thought, in light of this, that dropsy cases should be scrutinized with special caution. And that if the cop's testimony seemed "inherently unreal" it should be rejected. And the "slightest independent contradiction" of the cop's testimony would warrant rejection of police testimony and the suppression of the evidence. And that he would determine if the burden of proof had been met by the prosecution for use of the evidence. This all makes sense.

And then, in a gigantic example of how police testimony is different and receives special acceptance and makes the police different from you and me and citizens in general, in a decision that enshrines police exceptionalism, Judge Younger wrote:

Had the issue been open, I would hold that the People must prove beyond a reasonable doubt that the seizure was lawful. But the issue is closed. The Court of Appeals declares the burden of proof to be the defendant's. People v. Baldwin, 25 N.Y.2d 66, 70 (1969). Where the testimony on one side balances the testimony on the other, as here, it is the People who prevail. Defendant's motion to suppress is therefore denied.

I come to this decision reluctantly. Our refusal to face up to the ‘dropsy’ problem soils the rectitude of the administration of justice. One is tempted to deal with it now by suppressing ‘dropsy’ evidence out of hand; yet I cannot. Reason and settled rules of law lead the other way, and judges serve the integrity of the means, not the attractiveness of the end.

Somehow, policemen must be made to understand that their duty is no different.

And so, McMurty was convicted. And policemen received a written, judicial acknowledgment that they were different from me and you and anyone else who testifies in court. They could lie and win anyway. Why? Because the judge, who by the way was an excellent judge and a committed liberal, would not, could not find that officer Frisna's testimony was simply not credible. He had previousy written in the Nation that nearly all of the cops testifying to dropsy evidence were committing perjury, but he wouldn't find this particular cop, Officer Frisna, incredible. Ask yourself why this was so. Ask yourself what it would take to say, "No. I believe the accused, I don't believe the officer." How often has that happened? Answer: virtually never.

The McMurty decision is a clear, 38 year-old example of police exceptionalism. Since then, police exceptionalism has continued unabated. It has killed Amadou Diallo and it has killed Sean Bell. And it will kill again. Judges will continue uncritically to accept police testimony, and the miscarriages of justice will continue to mount unabated. Judge Younger wrote that "judges serve the integrity of the means, not the attractiveness of the end." How many more miscarriages will it take before the "integrity of the means" actually leads to justice? How many more dead people does it take?