July 2015 Blue Line article

How video is used in the prosecution of an officer

It is a sobering thing to be in a criminal court as the defendant rather than an officer’s usual role as a witness against a defendant. But don’t think that it could never happen to you. All of us are one allegedly poor decision away from being prosecuted if the moon and stars all line up against us when that decision is made. The chances for that alignment increase exponentially when there is a video.

The basic reason is that uses of force are ugly. No getting around it. And, of course, a picture is worth a thousand words and videos a couple thousand. Bad words, usually.

The basic facts of a recent criminal trial with an officer as the defendant are these. A woman, high on cocaine, dropped her two kids off at the police station with a basket of clothes and a note with their grandmother’s phone number on it. The watch commander dispatched a unit to the woman’s address to investigate child endangering.

Two officers responded and ended up arresting the woman who was located on the second floor of an apartment and did not want to go to jail. They also ended up rolling around on the floor with her and wrestling her into handcuffs. She was 6 feet 1 inch and weighed 228 pounds. They had to carry her down the stairs. Not an easy task, but a lot easier than what they had to do next, which was to try to get this woman into the back seat of a patrol car when she wasn’t interested in going there.

The officers requested a sergeant and another unit. The sergeant arrived and so did the backup unit that parked directly behind the police vehicle, which was destined to be the location where the woman would be placed in the back seat after a six-minute struggle.

The officer who would be prosecuted was in the backup unit. Both police vehicles were equipped with Digital In-Car Video. The activity in the back seat was recorded by the interior camera of the primary unit and the activities outside the vehicle were recorded by the backup unit’s forward camera.

The moon and stars lined up in a negative way. The officers were frustrated, rough language was used, force was used, and the woman died on camera. The officer was criminally prosecuted for one count of assault under color of authority, 149 P.C.

The trial lasted for six days in front of a jury. And then it was time for closing arguments. How the prosecution and the defense treated the video is where the warning bell rings. Think about what might be told to a jury the next time you are doing your job in front of a camera.

It is helpful to realize what assault under color of authority means. The judge instructed the jury that an officer would be guilty of this charge if someone is assaulted or beaten by a public officer acting under color of authority without lawful necessity. It is an objective standard. There may be many uses of force in the incident, but it is only necessary that the jury all agree that any one of them was unreasonable to constitute guilt of the crime. However, an officer need not retreat and can use force to overcome resistance while taking a suspect into custody, the judge said.

The prosecutor pointed out that the definition of a battery is an offensive touching and that a battery under color of authority without lawful necessity met the requirements for a finding of guilty to the charge of 149 P.C.

The prosecution used the word “kick” and the defense used the words “pushes with the foot” for the same acts. Either was a battery. Also, the prosecutor continued, since the officer was on duty, the requirement of “under color of authority” was met. The only issue was whether or notthere was a battery that was without lawful necessity.

The video, of course, was the star attraction of the trial. It was playedrepeatedly during the presentation of the evidence and it would be played again during the final arguments. It would also go to the jury for play as many times as required during the jury’s deliberation. And, yes, it is ugly.

Everyone agreed that the woman’s death was not caused by the officer’s actions. The woman died of a heart attack brought on by the use of cocaine and medical experts so testified.

The prosecutor told the jury that these kinds of cases cut to the center of a free society. Everyone has to follow the law, he said. Police and police apologists do not get to decide if a use of force is lawful, the jury does. It would be the jury’s job to look at the evidence and make that decision. There are dangers to the police, he said, but in this case the danger came from the police. The woman was handcuffed, hobbled, and was only struggling to breathe. The prosecutor told the jury to listen to the woman’s voice on the video when she was telling the officer’s that she couldn’t put her feet in the vehicle. She should get an Academy Award if she was faking.

The officer, on the other hand, was hardened and calloused. The officer laughed. The officer called the woman a “lard__” and used other inappropriate language and threats. The officer demonstrated on the video that she was cynical. The officer dehumanized the woman and considered her as a lard__faker who was making the officer’s life more difficult because she wouldn’t get in the back seat of the police vehicle. even after the woman was unconscious, the officer didn’t believe her. The officer lighted a cigarette.

Look at the video in its totality when you deliberate, he continued. Any one of the shoves or kicks qualifies if the jury determines it is unreasonable. Was she resisting or just moving? Did the woman do anything that justified a push in the throat or a kick in the groin? Was she intentionally resisting or reacting to a medical condition? Did she pose a threat? Look at the video and use your common sense and logic. You the jury make the determination.

The bad language tells you why the officer used force; it was because the officer was frustrated, not because the woman was resisting, he told them. The prosecutor pointed out on the video where one of the other officers whistled and pointed at the camera right after the kicks were administered. The witnessing officer did that because heknew that the kicks were unreasonable, the prosecutor told the jury. Why give a warning if there is nothing wrong?

The prosecutor finished by telling the jury that it was up to them to decide how far is too far. Can an officer ignore all of the signs? Can an officer kick a dying woman in the genitals because she thought she was faking? The prosecutor asked the jury to hold the officer responsible.

The officer’s defense attorney also used the video, but maintained that there had to be interpretation of the things seen in the video by a use of force expert. The defense attorney showed a dilapidated building on the screen and told the jury that this was an ugly building, but, without an expert examining it, there were no grounds for saying that the building was defective. Yes, it was ugly, but that does not mean that it was not a sound building.

The defense attorney pointed out that in six days of testimony, the prosecutor had not presented even one witness who was an expert on use of force who had examined the video and arrived at an opinion that any of the uses of force were unreasonable. Captains and detectives had testified during the prosecutor’s case and not one question had been asked of these witnesses by the prosecutor regarding the appropriateness of any of the uses of force.

The defense, on the other hand, had presented a use of force expert with 50 years of experience (and known as the “godfather of SWAT”) who examined the video and 1,100 pages of investigation and who opined that, although he would never use the particular offensive words that the officer used, the officer was using tactical language which was a proper technique to get suspects to comply with orders. Furthermore, the expert testified as to each use of force separately. An officer need not retreat or desist from taking a person into custody, which includes getting a person into a vehicle for transportation.

The expert testified that none of the pushes or kicks were unreasonable. How can the prosecution meet the burden of proof without presenting a single expert witness who would testify that the use of force was unreasonable, the defense attorney asked the jury. The officer had to deal with a hobble that was applied incorrectly and to try to get this heavy, uncooperative, resisting suspect into the back seat of a police car, he continued. Listen to the video where the woman says to the officer, “just kill me.” The officer replied on the video that she just wanted to transport her and to get her help.

Look at the video. The officer is breathing heavily trying to get this woman into the back seat. This is a stressful situation. Yes the officer did use profane language. We are all human, the defense attorney told the jury. Yes, the officer did light up a cigarette, but that has no connection with a use of force.

The woman died because of a heart attack caused by cocaine intoxication, he said. There was not one bruise on her body caused by the officer’s use of force. The prosecutor’s questions regarding the death are meant to inflame you as jurors. The language was ugly, the video was ugly, and police work is ugly.

You cannot, as jurors, look at a video and say it is ugly, therefore it is unreasonable. You need a playbook, you need rules, and you need an expert to explain it to you. The prosecutor did not provide even one witness that testified that the officer did anything wrong, he concluded.

Because the prosecutor has the burden of proof, he is allowed to rebut the defense attorney’s closing statement. The prosecutor told the jury that uses of force are not buildings. Buildings require mechanical applications; uses of force are human experiences.

The defense use of force expert was biased in favor of police officers and tried toput things into categories. The evidence is the video and surrounding circumstances, he said.

The jury convicted the officer. She is now facing up to three years in prison. The foreman of the jury told a television reporter afterward that the video was indeed the most compelling aspect of the trial.

And so there it is. When you are on camera, every word, gesture, and even your breathing can end up being evidence for you or against you. The bottom line is that a video allows anyone and everyone to examine every second of an encounter and form an opinion as to what it means, for good or for bad.

You need to be aware of the stakes every time you step in front of a camera whether it is DICVS, BWV, a security camera, or someone’s iPhone. An allegedly poor decision and the moon and stars lining up against you might make you the next police defendant in a criminal trial. Know your job backwards and forwards and take no chances. Get a supervisor involved, stay professional, resist frustration, and most of all…

Be legally careful out there.

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