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Tuesday, May 31, 2011

Federal prosecution in NYPD rape case?

Last week's acquittal of two New York City police officers on rape charges (they were convicted on three counts of official misconduct, resulting in their immediate firing and some further criminal punishment) has sparked outrage and protests. The victim still has a multi-million dollar federal civil rights action against the officers and the city.

Bu might the Justice Department also bring a federal civil rights prosecution against the officers? Successive or dual federal prosecutions based on "substantially the same act(s) or transactions involved in a prior proceeding" are governed by DOJ's Petite Policy, which lays out three requirements for a federal prosecution:

[F]irst, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact.

The second element is where a lot of the action occurs. Under the policy, federal interests have presumptively been served by a state prosecution, regardless of outcome. That presumption may be overcome based on a number of factors, including indications that nullification occurred in the prior prosecution or where the state prosecution failed on an element that would not have to be proven in the federal prosecution. The presumption also may be overcome, regardless of the outcome in the state prosecution, where:

first, the alleged violation involves a compelling federal interest, particularly one implicating an enduring national priority; second, the alleged violation involves egregious conduct, including that which threatens or causes loss of life, severe economic or physical harm, or the impairment of the functioning of an agency of the federal government or the due administration of justice; and third, the result in the prior prosecution was manifestly inadequate in light of the federal interest involved.

The most famous example in my lifetime of a federal civil rights prosecution following a state acquittal was the successful prosecution of LAPD Officers Stacey Koon and Laurence Powell, two of the officers involved in the beating of Rodney King (two other officers were acquitted on the federal charged). The federal prosecution was triggered in large part by the extreme consequences that followed from the state acquittal.

So is this an appropriate case for a successive federal prosecution?

This was a high-profile state prosecution that drew a lot of media and public attention. There is visible public anger over the verdict, although obviously nowhere near what followed the acquittal of the LAPD officers in 1992 and not expressed in nearly as destructive a way. Gender issues do not carry the same force as the racial issues involved in the King case, especially absent rioting. The King case also hinted at systemic issues of excessive force (often race-based) within the LAPD, concerns that do not seem to be present here (putting aside whether a verdict such as this one removes deterrents to such misconduct). Nor does this feel like a nullification situation; the jury had to buy a line of logic many don't agree with ("the woman was too drunk to keep the story straight so we can't believe her word (absent DNA evidence), but she was sober enough to consent so it couldn't have been rape"), but that is not necessarily the same as the jury simply ignoring the law and the evidence. The King case also had video evidence, which (as video does) probably gave federal officials a greater feeling of certainty as to what happened in the underlying events and thus a greater feeling of certainty that the jury ignored obvious evidence of guilt. This case does not feel like nullification as much as wrong-headedness and normative misconceptions about sexual assault.

Might this fall within the catch-all, three-step test for overcoming the presumption? Again, this case raises serious questions of gender equality and of the power of the law to protect vulnerable women from sexual assault in a particular context, especially by those who wield legal and social authority. That is (or certainly should be) a compelling federal interest, although, again, perhaps not as compelling as the racial tensions and consequences of 1992. The conduct, as alleged, was egregious--police officers abused their authority for personal gain unrelated to any legitimate part of their job; the officers went back to the woman's home three times, lying several times and violating department regulations to do that; and one officer even admitted laying in bed with her when she was passed out, which is strange behavior in any event. Was the state acquittal "manifestly inadequate in light of the federal interest involved"? The case does touch on a potentially hot question of whether the law will protect vulnerable persons from sexual assault where alcohol is involved. If one sees "too drunk to be believed, not too drunk to consent" as a dangerous legal proposition that produces/perpetuates gender inequality, then the federal interest is left unprotected by a state verdict in which the jury relied on that inference. Even more so when that gender inequality is coupled with police officers manipulating their authority for some purely personal thrill.

DOJ obviously wants to avoid the appearance that it brings subsequent civil rights prosecutions simply because the media pays attention to a case and enough of the public believes a state court verdict was wrong and expresses that belief loudly enough. But there are serious federal interests in gender equality and in stopping police misconduct that may justify a prosecution here. And because the case is something of an outlier on its facts, it could be a flashy-enough prosecution to give the federal government "more bang for the buck" in civil rights enforcement.

Of course, there remains the third element--will the evidence "probably" be sufficient to sustain a conviction. Might DOJ fear (rightly) that a federal jury will be just as likely to fall into the logical trap that the state jury did?

Posted by Howard Wasserman on May 31, 2011 at 09:11 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


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I agree with Dan Markel's post. Proving police misconduct here was easy; proving lack of consent by the victim beyond a reasonable doubt is tough.

We feel dissatisfied because what we really need is a new crime--- something like "Policeman taking advantage of his position"--- or a lower burden of proof for rape by policemen.

If states allowed common-law crimes, the court could ask for that. This would be a good example of where that would be a good thing: the police knew they ought to be in big trouble (10-year sentence trouble) if they behaved that way, and most citizens would agree, so the judge would not really be creating law, but applying existing norms of justice.

Whether it's too dangerous to generally give judges that power is a different question. Here, tho, I think it would have been helpful.

Posted by: Eric Rasmusen | Jun 18, 2011 12:44:39 AM

Assuming that a rape did occur: The officers were in position to interact with the woman because of their position. To the extent anyone had come across them, no one would have interfered because of their uniforms. They got access to the house, several times, because of their positions and their ability to create pretexts for entering the apartment. And one officer "stood guard" outside the apartment, again making sure that no one who came across them would interfere. Perhaps not as blatant as in Lanier, but more than simple rape by someone who happened to be a police officer.

Posted by: Howard Wasserman | Jun 1, 2011 10:54:03 PM

I'm aware of separate sovereign rule; it still reeks of double jeopardy to me, and as a policy matter "to me," a second bite of the apple should not just be a do over. On balance, that is, a federal prosecution would not be appropriate.

I appreciate the clarification as to what exactly you are concerned with here. I understand the difference here but w/o the alleged rape, would a push for a federal prosecution be present? The abuse of power is being dealt with, including by the convictions and the loss of position. The local prosecution was not a sham and the verdict as Dan notes seems to rest on reasonable doubt by the jury.

U.S. v. Lanier is noted, but things like "inveigled the woman into returning to the courthouse again to get information about another job opportunity" seems to be different than the case here. Did the rape here arise from abuse of their power over her as police to the same extent? Again, seems more like "simple rape" by police. The power of police makes it a different case, but without more, at least on policy grounds, I don't think it is a good federal case.

Posted by: Joe | Jun 1, 2011 5:12:09 PM

Descriptively, this is not double jeopardy because it is a different sovereign; whether it should be treated that way is another question. Yes, it is because they are police officers. And, according to the victim and the prosecution, they used their state-created power to commit this sexual assault and the remaining acts to occur. Without that, there is no federal crime because no state action and no possible constitutional violation. I don't think it is making rape a federal crime, only abuse of state-created authority that happens to take the form of sexual assault. See U.S. v. Lanier.

I should have emphasized the convictions on the lesser offenses and the possible jail time, which would be considered in the Petite balancing, particularly if the officer serve any prison time. I think everything Dan suggests is included in that balancing that guides DOJ decisions, although I think there is more room for debate on this.

Posted by: Howard Wasserman | May 31, 2011 9:38:47 PM

As a resident of the city, I too don't know what happened. I wasn't a member of the jury. The police officers didn't just get off. They lost their jobs. They were convicted of minor charges. A civil judgment is not unlikely. And, my understanding (fwiw) is that there were some burden of proof issues. I second Dan Markel in opposing another trial. It would reek to me of double jeopardy. Is it the fact they are police officers? The King trial had a flavor of official policy (or semi-official) being on trial. This sounds like a couple of bad cops who might have raped a girl. Making rape a federal crime is a bad idea.

Posted by: Joe | May 31, 2011 6:17:10 PM

Howard, with respect, I find the suggestion that a fed re-prosecution here would be warranted to be misplaced. It's not a logical trap that the defendants laid out to ensnare the jury. It's the burden of proof, and the state needed to show beyond a reasonable doubt that these officers were guilty of rape. The jury didn't buy that claim and these days, without DNA evidence, I suspect many persons on most juries would not accept the claim without some DNA evidence or compelling basis for its absence. Moreover, the fact that these officers were convicted for lesser offenses and still face prison time, pending their sentencing and they were terminated from their job, makes it much less likely that a DOJ prosecutor would be able to get the go-ahead to bring this case a second time in fed ct.

I have no idea what really happened that night; I have a sense of the facts that were admitted by the defendants or otherwise proven. But the Manhattan DA's office threw everything it had at these guys, and they came up short. A federal re-prosecution here would be both otiose and, to my mind, odious. Why? Because it's a really big deal to put defendants through the wringer a second time and I suspect that one needs to have full confidence in the sense of injustice that arises from a case disposition before justifiably seeking a second trial on the same factual events so you could get *more* punishment than is meted out at the first trial. With Rodney King, there was a videotape that everyone saw which bore out the intuition of unmitigated brutality; there was also a full scale acquittal of the cops. In this case, you have solid objective evidence of stupendously bad judgment (Moreno's admissions coupled with the inculpatory audiotape that can be somewhat undermined), but you don't have the clincher, and that's DNA evidence or a witness/victim whose testimony seems unimpeachable. The cases seem very distinguishable and even if King was an easy case, this one seems an easy case in the other direction. My two cents at least.

Posted by: Dan Markel | May 31, 2011 9:46:32 AM

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