How the US justice system works to protect cops who murder people

But the tendrils of corruption don’t stop at state level. In the rare instances that the ground-level fraternity fails to protect its own and cases of police brutality make it to court, the wording of culpability charges drawn up by law makers seems deliberately advantageous to law enforcement.

The distinction that must be drawn between murder, manslaughter, and a legitimate use of force becomes impossibly, almost interchangeably, muddy.

Michael Scott, a clinical professor in the School of Criminology and Criminal Justice at Arizona State University, Tempe, points out here that the ‘central element to the case is the officer’s intent to cause death or bodily harm.’

In general, innocence is assumed so long as the police officer claims that they didn’t intend for the person to die.

This seems ludicrous to anyone who has seen the clip of Floyd’s death, or footage of any of the deaths mentioned above – where officers continued to restrain or shoot at subjects long past the point of compliance. But it’s hard to prove premeditation.

Another thing working against police victims is the fact that an officer’s use of force ‘must be judged [by a jury] from the perspective of a reasonable officer on the scene’ and not with ‘20/20 … hindsight.’ Jurys are asked to ‘place themselves in the shoes’ of law enforcement in the moment – to ‘picture’ what it was really like. And the only first-hand account available to them is the police officer’s. Anyone was a contradictory account is usually dead.

The law is on the officer’s side the moment they enter the courtroom. This is to be expected: after all, the line between the police office as the law, and as a law-abiding citizen, has always been blurry. However, what’s perhaps more surprising is the tendency for juries to also be on the side of law enforcement, even when that jury is racially balanced.

We need only look into a mirror…

Juries almost always give police the benefit of the doubt when it comes to allegations of misconduct or killing a suspect. According to data collected by Bowling Green State University Professor Philip Stinson, who has done extensive research on this subject, less than half of jury trials involving law enforcement lead to a conviction. In contrast, police arrested for crimes using their own weapon are convicted 98% of the time.

Criminologists and psychologists who’ve studied this phenomenon claim it stems from the unwillingness of a jury to ‘second-guess the split-second, life-or-death decision of on-duty police officers in potentially violent street encounters’, as Stinson puts it.

However, a recent study by researchers at the John Jay College of Criminal Justice found that pre-trial publicity strongly influenced the decisions of mock jurors in assessing the guilt or innocence of police officers accused of killing an unarmed man.

The study used mock jurors who deliberated the real case of several New York police officers who were charged with homicide in the killing of Sean Bell, a black man shot by a cruising patrol in 2006 the day before his wedding. He was targeted with more than 50 rounds outside a Queens nightclub; the police claim to have overheard one of three men Bell was with mention a gun, but no weapon was later found on their persons.

All three officers involved were acquitted, both by the mock jury and the real one in 2006, after a campaign by the then mayor of New York Michael Bloomberg to defend his officers.

‘You might think evidence would affect their decisions, but at the end of the day, those effects (of pre-trial publicity) were still there,’ said Steven Penrod, professor of psychology at John Jay, in their report.

Despite overwhelming evidence that the NYPD open fired on unarmed men, neither group of jurors took the word of the two surviving black men over white police officers.

It seems that the narratives people bring with them into the courtroom have just as much of a bearing on the verdict as the evidence itself.

Take also the case of the shooting of Samuel DeBose by police officer Ray Tensing. DuBose, an unarmed black man, was fatally shot by Tensing, a white University of Cincinnati police officer, during a traffic stop for a missing front license plate and a suspended driver’s license. Tensing fired after DuBose started his car, stating later that he was being dragged behind the car by his arm. Prosecutors alleged that footage from Tensing’s bodycam showed he was not dragged.

A November 2016 trial of this case ended in mistrial after the jury became deadlocked. A retrial begun in May 2017 also ended in a hung jury. The charges against Tensing were later dismissed.

In announcing his decision to drop charges against Tensing, Hamilton County Prosecutor Joe Deters said his polling of jurors convinced him ‘that we will never get a conviction. … So many things bled into the jury room related to race.’

Whilst it’s easy to decry the perils of institutional racism, of authoritarian fascist rule so deeply embedded in justice systems that it can’t be undone, it’s harder to swallow the fact that these white police officers were excused for their crimes by ordinary citizens like you and me.

Calvin Lai, one of the world’s leading experts on implicit bias says here that unconscious bias can cause jurors to trust a police officer, but we must interrogate the extent to which unconscious bias also leads juries to mistrust black victims.

Interestingly, one of the only recent instances where a police officer was charged to the full extent of the law after killing someone on duty was the case of Justine Damond, who was fatally shot by officer Mohamed Noor. Noor was charged with second-degree manslaughter and third-degree murder, the exact same charges Chauvin faces, by the same police department – Minneapolis PD. He was convicted.

Noor is Somali-American, and his victim was white.

The structures of bias we’ve built around ourselves are in our DNA. As the jury stats show, we cannot separate out the racism that we clearly perceive in our law enforcement from ourselves as the same biases beat within us. Though he’s taken the path of most resistance, the same prejudices ingrained in Derek Chauvin are narrativised in us as well, and the willingness of juries to believe white perpetrators over not only black victims but their own eyes, shows this.

I would love for power to be non-subjective – to operate through force relations on a macro level that I can barely comprehend. But this simply isn’t the case.

Author Scott Woods summarises thus:

It’s these small acts of consent, these micro-aggressions, that built Minneapolis PD and others like it brick by brick.

Officers like Chauvin and Tensing were helped by the arm of privilege at every step. They were helped by their white skin, and the opportunities this afforded them. They were helped by their status in society as police. They were helped by their colleagues. They were helped by the justice system – by lawyers, judges, and a President that actively encourages police brutality. But they were also helped by the innate cultural biases found in each and every one of us.

The answer to the question ‘How does the US justice system protect murderous cops?’ is: because we let it. Every time we don’t actively interrogate our place in society and our privilege, every day we don’t work to scoop out those poisonous thoughts and insipid apperceptions from the boats of our lives, is another day that we exonerate Chauvin and convict Floyd.

We must work to re-write the narrative of race that exists in our society, that divides the dominant gaze of Us into ‘white’ and ‘other’. We must raise a new generation who can walk into a court room completely free of bias.

It’s a lofty goal, but one worth reaching for nonetheless.

George Floyd, Breonna Taylor, Ahmaud Arbery, Tamir Rice, Trayvon Martin, Oscar Grant, Eric Garner, Samuel DuBose, Sandra Bland, Walter Scott, Terrence Crutcher.

We say their names and think also of those names we have forgotten.