Wednesday, August 20, 2014

If a cop commits a crime on video and in front of dozens of witnesses, is it still a crime?

Imagine you were walking down a street with a weapon, say a scary-looking assault rifle of some type. Imagine you turned to a person walking down the street near you and said, "I will fucking kill you," while pointing said scary-looking assault rifle at said person. Now imagine it was all caught on video tape with lots and lots of cops around. Just imagine what would happen to you.

I'll tell you: you'd be arrested and charged with aggravated assault. That's one of those crimes cops won't wait to present to a DA for formal charging and an arrest warrant. Cops can actually just arrest you if they see you commit a crime.

Now let's change the hypothetical a tad: imagine the person you pointed your scary-looking assault rifle at while threatening murder was a cop. What do you think would happen to you then? Personally, I think you might be lucky to avoid seeing a few new holes in your body next time you looked in a mirror (not that you'd really be able to look in a mirror because the number of new holes in your body would be incompatible with life). At the least, you'd be surrounded, tackled to the ground, probably roughed up a bit.

But, if you're a cop, well you'd just keep going about your merry business of crowd dispersal and intimidation. Sure, one of your colleagues would pull you away from the guy you were threatening to kill. Probably that colleague would suggest you should cool your heels a bit.

It wouldn't be until the next day after the bystander who caught the incident on video uploaded it before people really noted your out-of-control, criminal conduct.

Of course, this really did happen last night in, where else, Ferguson, MO. That video went viral. Thanks to that, the cop was identified. None of the witnesses could have identified him last night because cops in Ferguson are still refusing to wear badges or anything else with identifying information. He was asked his name and responded colorfully.

Now that the video has gone viral and the cop has been identified, he has at least been suspended.

I could go off on a tangent now about why so many legislators are so infuriated by teacher tenure because it means experienced teachers who have proven their classroom abilities can't just be fired for any reason. Teachers are worried about being fired for things like political reasons or as punishment for speaking up for particular students. Teachers are not trying to keep jobs they're bad at; nor does tenure protect bad teachers. But still, we put an end to teacher tenure in my state.

Meanwhile, just try to fire a cop. A bad cop, a dirty cop, a rogue cop, a murdering cop. They're impossible to fire. Even when you have video of them brazenly threatening someone. They get suspended, usually with pay. They get thorough investigations, hearings with representation, the backing of the police union. Heaven forbid a cop caught on tape threatening a pedestrian should just be summarily dismissed. Can't have that!

But suspending this cop isn't enough. He should be charged with a crime. Aggravated assault is, with a deadly weapon, putting someone in fear of harm. What this cop did fits the bill in my book. I would accept a plea down to criminal threat because I'd be a very reasonable prosecutor. But I wouldn't accept letting it go without criminal prosecution. Any non-cop who pulled that crap would be under arrest already. This guy should be, too.

Think of what that might do to calm tensions in St. Louis County if this cop were immediately charged with a crime. How many images have we seen in the past week of cops acting like thugs? Pointing their weapon muzzles at citizens instead of holding them in a downward position. A cop calling protesters "fucking animals." Snipers atop armored vehicles. Tear gas being thrown, journalists being arrested. And throughout it all, I've seen so much evidence of cops who don't see the people on the streets of Ferguson as the community they volunteered to protect and serve, but as underlings who are to do exactly as they are told, regardless of the rightness or lawfulness of the order. I've seen contempt, not compassion. I've seen disgust, not desire to bridge gaps.

Forcefully letting the community know that cops in St. Louis County do not have a license to threaten, do not have authority to make citizens fear for their lives would be a strong first step to improving relations between the residents of this county and their police force. Charging this cop with a crime we have video of him committing would let the people of Ferguson (and the rest of the US) know cops are accountable in a very real way for their very bad behavior. Oh, and charging him with a crime when we have video of him committing that crime would also just flat be the right thing to do.

Saturday, August 9, 2014

No, John Hinckley Jr. must not be charged with murder

Is the coroner who declared James Brady's death a homicide trying to make a political point? Was s/he subjected to pressure from any prosecutors or police? Or is this coroner just a stickler who says that because the health issues that led to Brady's death can be directly traced back to a gun shot wound he suffered 33 years ago, the death was the result of another human's actions and was thus a homicide?

I really don't know what the medical examiner's office was thinking when it labeled this death a homicide. But what I do know is that trying now to prosecute John Hinckley Jr. for murder would be a stupid, pointless waste of time and resources. It shouldn't even be considered.

I've seen it happen too often that prosecutors file charges without doing research about whether there are bars to those charges only to realize weeks or months later that the charges aren't prosecutable. No one benefits from this kind of react first, research later prosecution. It's not fair to a rape victim whose attacker has finally been identified after decades to let her think the man will be prosecuted because you didn't bother to research the statute of limitations first. Or to tell a grieving parent her son's death will be treated as a murder when the murder laws of your state don't allow that.

In articles I've seen today about this homicide finding, I've seen some rumblings that the case is being "investigated," that prosecutors are "reviewing the ruling." I hope they will actually carefully review the law and think about the case before filing anything because there should not, cannot, be a new trial.

30 years ago, a jury found John Hinckley Jr. was not guilty of charges related to the shooting by reason of insanity. That legal finding ought to be binding on the state. You can't undo that jury finding, can't ignore it, can't say it doesn't matter now. It does. It's law of the case. Eugene Volokh agrees with me on this, and also explains some other legal bars to prosecuting Hinckley now.

So for legal reasons, no one should seriously think trying to prosecute Hinckley for murder now is a worthwhile idea. And prosecutors should think through all of these legal obstacles before they file any charges, not after.

But there's a non-legal reason for letting this go, too, even if he could be prosecuted. John Hinckley was insane when he decided shooting President Reagan was just the thing to impress a woman he didn't know. A jury had no trouble making that finding. As a result, Hinckley has lived in mental health facilities since. Yes, he's now allowed passes so he can spend time at his mother's house, around 2 weeks a month. But he's been supervised and treated for decades. For over 30 years, he has been prevented from hurting anyone again.

Preventing him from hurting anyone is precisely what the criminal justice system's goal for this case was. We have already achieved all we could hope to achieve with Hinckley. He is still within a court's jurisdiction. He is still required to accept supervision and treatment for his mental illness. If his mental health deteriorates, there are already procedures in place to restrict the freedoms he has earned. Nothing more would be gained by trying now to put him in prison (where, by the way, it's almost guaranteed his mental illness would not be nearly as well treated).

The Hinckley case was a watershed moment in the criminal justice system. The outrage that a man who was insane at the time of his crime was found to be insane at the time of his crime was enormous (even if utterly unjustified). There was a false but very strong sense that he "got away with it" by being housed all these years in a mental institution instead of a prison. As a direct result of this case, states across the country altered their laws on mental illness as a defense to crimes. These new laws made it much harder for defendants to rely on mental illness as a defense at trial. The intent of these changes was to make sure the Hinckleys of the world would go to prison, not some "cushy" mental hospital because there was somehow something unjust about treating a person with profound mental illness as a person with profound mental illness.

Trying to prosecute him now would demonstrate that we've learned nothing about how wrong those knee-jerk reactions to his original verdict were. Our prisons are overrun with mentally ill inmates because we've criminalized mental illness. People like John Hinckley Jr. should be in mental hospitals, not prisons. As a society, we're better off when we treat mental illness and show compassion to those who suffer from it instead of throwing them away in prison as people too damaged to bother with.

The justice system's treatment of John Hinckley Jr. has been exactly what it should have been. There is nothing to correct, no reason to pursue new responses to his 33 year-old crimes. There is no reason to reopen that case. Here's hoping the powers that be know that.
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