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Monday, May 23, 2016

Nero's Acquittal

Last week I posted about the odd theory of second degree assault being played out in the Baltimore trial of Edward Nero, one of the six officers charged in the rough ride killing of Freddie Gray.   Today, not surprisingly, given the lack of evidence presented by the prosecution, Nero was acquitted by a judge.  His fellow officer, forced to testify by the prosecution, stated that Nero was not involved in Gray's arrest. Now, police are famous for testifying falsely when it behooves them, with no consequences in civilian trials.  But it's hard to imagine that Miller (the testifying officer) would inculpate himself at the expense of his colleague.  Regardless, the judge had no choice but to acquit Nero, at least on that charge. 

Would it be better if the judge had convicted Nero, not based on evidence, but because the criminal justice system is horribly rigged in favor of police and the privileged? In my opinion, a conviction with no evidence does more to harm accountability for police and especially for political DAs than an acquittal.  But I can certainly see how this might be viewed as one more instance of a white police officer's liberty taking precedence over the life of a young African American man.  That said, the longer view is that all defendants should get the same opportunity to defend themselves against charges brought by overly zealous prosecutors that the police do.  This is also the thrust of a couple of articles I have written.  Holding police accountable when they make unfair illegal arrests is a prosecutor's duty in all cases, but so is prosecuting only cases where evidence is reliable and where a suspect is criminally culpable, both legally and normatively (see Josh Bowers' fantastic article Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute).  

On the other hand, the press release put out immediately by the Baltimore FOP undermines any intelligent or nuanced discussion of Nero's criminality by suggesting that he and all the officers charged in Gray's killing are innocents wrongly persecuted by an overly zealous prosecutor and unfair criminal justice system. Nero may not be criminally liable, but that certainly doesn't mean he did "nothing wrong."  Moreover, this tone deaf attitude in the face of personal and cultural grief on the part of over-policed under-served communities, is exactly the kind of attitude that permits police to make illegal arrests every day with no consequence. 

Posted by Kate Levine on May 23, 2016 at 12:49 PM | Permalink

Comments

in the rough ride killing of Freddie Gray.

There was no rough ride, sister.

Posted by: Art Deco | Jun 22, 2016 5:52:35 PM

So it's just some arbitrary number? Think some might think not.

Posted by: Joe | May 25, 2016 1:27:13 PM

"*If* the false conviction rate ..."

I'd think everyone reading this site would be familiar with the concept of hypotheticals.

Posted by: brad | May 25, 2016 12:27:52 PM

One expert citing the rate for death penalty cases noted: "We don’t know nearly enough about other kinds of criminal cases to estimate the rate of wrongful convictions for those."

https://www.washingtonpost.com/opinions/the-cost-of-convicting-the-innocent/2015/07/24/260fc3a2-1aae-11e5-93b7-5eddc056ad8a_story.html

So, that would be the source would be interesting to me too.

In response to a question, the post DID say it would be a bad idea:

"Would it be better if the judge had convicted Nero, not based on evidence, but because the criminal justice system is horribly rigged in favor of police and the privileged? In my opinion, a conviction with no evidence does more to harm accountability for police and especially for political DAs than an acquittal."

The question focuses on what would happen to the violent crime rate, but the hypothetical basis is rejected anyhow.

"Holding police accountable when they make unfair illegal arrests is a prosecutor's duty in all cases, but so is prosecuting only cases where evidence is reliable and where a suspect is criminally culpable, both legally and normatively."

It is also argued:

"It would be pretty easy to reduce the rate of police-caused homicide to zero -- by making it clear that the police will go to jail whenever they are forced to use force in self-defense, regardless of the justification."

I don't think so. The police are going to at some point merely for survival going to use deadly force. They will risk jail (and the extreme mandatory conviction hypo especially given jury nullification possibilities is just that -- not really a credible possibility).

The concern of the piece was the phrasing of the press release. Anyway, since an automatic conviction is each use of force case is rather extreme & the author already notes it opposes such a rule, I don't blame the article not discussing the point.

Posted by: Joe | May 25, 2016 10:29:16 AM

Brad, what is your source for false conviction rates?

Posted by: PaulB | May 25, 2016 12:05:06 AM

@Larry Rosenthal
If the false conviction rate for the population generally is 3%, what should the false conviction rate be for police officers on trial? Given that type I and type II errors are inextricably linked.

Posted by: brad | May 24, 2016 1:00:39 PM

John: I made no such claim. I responded to the question whether police officers should be convicted "not based on evidence, but because the criminal justice system is horribly rigged in favor of police and the privileged." I find it remarkable that anyone would take such a question seriously.

Posted by: Larry Rosenthal | May 24, 2016 10:55:12 AM

Larry, I think you may be the first person to claim that BPD's extra-judicial rough ride punishment program is self defense. I'd love to hear an elaboration. This ought to be good.

Posted by: John | May 23, 2016 10:48:55 PM

Larry, I think you may be the first person to claim that BPD's extra-judicial rough ride punishment program is self defense. I'd love to hear an elaboration. This ought to be good.

Posted by: John | May 23, 2016 10:48:55 PM

It is interesting to note what this post leaves out. What, I wonder, would likely happen to the violent crime rate in Baltimore if police officers were made to understand that they will be convicted in police-use-of-force cases "not based on evidence, but because the criminal justice system is horribly rigged in favor of police and the privileged?" Is the objective here merely to reduce the rate of police-caused homicide in Baltimore (regardless whether justified), or to reduce the rate of overall violent victimization? It would be pretty easy to reduce the rate of police-caused homicide to zero -- by making it clear that the police will go to jail whenever they are forced to use force in self-defense, regardless of the justification. But, is that really the only relevant objective here?

Larry Rosenthal
Chapman University
Fowler School of Law

Posted by: Larry Rosenthal | May 23, 2016 5:27:27 PM

It's a pretty tough pill to swallow to be asked to celebrate the fairness of a system of justice that only a few get to access. There's a strong argument to be made that a unified system of justice is preferable to a dual system of justice even if one of the two parts of the dual system is better than the unified one would be. That equality before the law is a more important value than the overall average quality of justice the system provides.

Posted by: brad | May 23, 2016 2:09:57 PM

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