Forrest Gump v. Pulp Fiction: Overcoming the presumption of officer innocence.
By Nathaniel S. Brown
“But why would the cop lie? Cops don’t lie!” A juror reportedly uttered this statement during deliberations in the case of a homeless veteran charged with assaulting a peace officer. Now what’s important is not whether the veteran did in fact assault the officer thereby justifying the beating he received. The disturbing thing is the statement made by the juror indicated a presumption of truthfulness and reliability on the part of officers.
Many of the stories would go completely unnoticed by the local and national media outlets were it not for the undeniable and egregious sins having been caught on cell phone and police cruiser dash cameras. It seems that in the digital era, law enforcement cannot rely on complete control over the “facts.” They have a silent watcher in many cases. But then why do so many people still scoff indignantly at the idea that law enforcement professionals are anything but, well, professional?
Los Angeles vs. San Diego: Does the presumption exist everywhere?
There is a TED.com video of Jonathan Haidt regarding the moral roots of liberals and conservatives.[i] After watching it, I decided there had to be another explanation for why people still trust all police officers by default other than “they are just ignorant.” I wanted to know the real reason if there is such a thing. So I started with our trusty interwebs friend Google! Westlaw and Lexis Nexis seemed an inappropriate place to begin my research. I discovered a plethora of studies done on the subject. The CATO Institute’s National Police Misconduct Reporting Project 2010 interactive map showed, perhaps unsurprisingly that Los Angeles and Chicago have the highest incidents by far of police misconduct claims by the public.[ii]
To show the dichotomy between two large cities in the same state, however, lets look at San Diego and Los Angeles. Los Angeles is well known for its police brutality and misconduct. After the Rodney King video had surfaced the behavior of police was undeniable by all. On the CATO map, LA is saturated with reports of misconduct complaints and no one seems surprised by this fact. San Diego, on the other hand, does not have the same reputation among its citizens for having such a brutal and untrustworthy police force. It seems common knowledge among local defense attorneys that the presumption of police innocence is strong particularly in jury venires in San Diego. Los Angeles, on the other hand, such a presumption is much easier to overcome given that community’s view of their officers.
What makes cop tick?
So what then should we do first to understand better the growing trend of misconduct and how to communicate this reality to jurors? First, I would argue the need to understand the humanity of the situation. You cannot communicate something you do not clearly understand. What draws a person to become a law enforcement officer? What kind of personality does the typical officer have and is it a result of being an officer or is it the officer that came to the job with that personality? It’s the proverbial chicken and the egg argument. What came first, the authoritarian or the authority?
Edward Thibault would argue that the authority came first, and the authoritarian came as a result of doing the job and being immersed in the police culture both at the academy and in the locker room.[iii] Christina Quieros and her colleagues took a rather specific look at the aggressiveness of police officers and came to the logical conclusion that burnout causes that aggressiveness.[iv] Ms. Quieros argues, “Feelings of high depersonalization and low personal accomplishment are the burnout dimensions that most strongly explain anger and aggressivity.” She and her colleagues stress the need to assist officers in the management of stress in order to avoid burnout. “Aggressivity is also an emotional state elicited by stressful situations, leading the person to evaluate the situation as more threatening than it really is.”
Ellwyn Stoddard described the modified individualistic approach to determining the likely outcome of hiring officers with certain personality traits.[v] He suggested that this approach holds the view that “perhaps the individual chosen had already become ‘contaminated’ prior to being hired as a member of the force.” Mr. Stoddard also refers to two other authors that point out an institutional cause through the corruption of politicians and police department leadership. This second approach is called the group approach. The group approach views the institutional pervasiveness of misconduct, as on par with organized crime, however, the reaction had by the public when faced with institutional police misconduct is far more indignant. This is understandable since idea that an officer would purposely violate the laws he has sworn to enforce is the epitome of hypocrisy. While Mr. Stoddard’s article is nearly 50 years old, its wisdom is unarguably relevant to our problems today. But what of the perspective of the officer?
The idea that if we better understood the officer’s job experience we would be more forgiving of the choices they make and the conduct they engage is valid to a degree.[vi] The more a person encounters dangerous situations, the more that person would have a heightened sense of “stranger danger.” However, whether the person brings with them to the situation, a personality that would contribute to a finding that a person is threatening enough to engage in brutality or worse seems an important question to ask. That personality may include racism or a more generalized authoritarian demeanor (i.e. a bully). That question only addresses, and perhaps explains, just the “justifiable” use of force or the mistake of fact argument. The other question persists. What makes an officer “go bad” or make clearly unjustified decisions under color of law.
Why do cops do the wrong thing?
We need to make Juries understand, even if merely implicitly, what would make an officer steal money from a 7/11 countertop when the owner of the money was standing next to him asking about it.[vii] What would make entire police departments succumb to corruption such that a Department of Justice agreement is the only way to remedy that corruption?[viii] Well, the obvious answer is that police are human, and humans make mistakes but that is an apologist’s conclusion that requires no introspection or solution to the problem. It is, however, what many jurors may conclude to the detriment of your client.
We hold law enforcement to a higher standard because we give law enforcement a higher level of authority and discretion to use that authority in a reasonable manner so as to protect the citizenry from disorder and crime. A jury will expect an officer to meet this standard but may be more forgiving than us attorneys are because the standards are far clearer to us. Therefore, it is easier for us to see when those very law enforcement officers become the disorder and crime we sought to extricate from our communities?
The Forrest Gump Approach vs. The Pulp Fiction Approach
That brings us to the question of how to convince a jury of this reality. There is obviously no way to educate juries that are unaware of all of this then convince them to see things the way you do in such a short amount of time. You need something to pull out of your superhero gadget belt like Batman! The California Innocence Project’s Justin Brooks has just the thing for you. If you have a Los Angeles type jury that is willing to believe that the cop did a bad bad thing, you can present the story in a way that is clear and direct. Justin calls this the Forrest Gump Approach. If you have instead, however, a conservative San Diego jury that will bend over backward to view your officer as Andy Griffith, you will probably want to employ a more abstract and distracting strategy. Justin calls this the Pulp Fiction Approach. Each of these approaches has their benefits and drawbacks but, as defense attorneys, we play the cards we are dealt and make decisions as to the best way to make our case.
Utilizing clear evidence of police misconduct or mistake without any strong attacks on the officer directly best employs the Forrest Gump Approach. You are betting on the idea that the jury, when faced with organized and unequivocal evidence that shows the officer in the wrong that they will draw the inferences necessary to find your client not guilty. You should have a clear story line that is easy to follow. You will want to place the jury in a vivid recreation of the facts as you and your client see them. Step through that story in a way that allows for no mistake as to what the correct course of action would have been by the officer. Then show how that course of action was obvious and required. Last, illustrate just how badly the officer missed the mark in failing to take that course of action. Your client may then gain the upper hand because the officer’s presumptive favor has gone up in a puff of smoke.
How then would one employ the Pulp Fiction Approach? If you have seen the movie, then you understand that you are going for the idea of a confusing story line where there are no clear heroes and villains. Like the movie, your story should be honest but superficial. You should not paint your client a criminal but do not be afraid to admit his “checkered” past. Step on the land mines of past convictions if you plan on having your client testify. In the Pulp Fiction Approach, it may be wise to have your client testify if he or she can come across as likable. You shouldn’t have your client misquote Ezekiel 25:17 on the stand of course, but giving your client an opportunity to connect to the jury is invaluable. The goal is to say with your theory that “Hey, my client is not the best guy in the world but neither is the officer. Who knows what happened here? We’ve all made mistakes so let's just stop this mess and go home.” The jury having been dragged from aft to stern in this hot mess of a storyline will, hopefully, concede that they cannot be sure about what happened and that this fact amounts to reasonable doubt.
Obviously you are taking a risk with either of these approaches that the jury will not see things your client’s way. That’s a risk we take when we go to trial in the first place. But, hopefully, these two approaches will give you some new arrows in your quiver or at least prompt a brainstorm and allow you to come up with an approach you have never thought of before. The presumption of police virtuousness is a difficult mountain to climb and at times it can feel like you are dragging your client through the woods after having been shot in the hind parts. It is possible to overcome this presumption if you find a way to connect to your jury. Invite them off of their high horse to connect with your likable scoundrel of a client or present them with a story about a man that was caught up in a mess created by an officer who screwed up. The most successful approach will likely involve elements of both and will allow you to humanize your client. And isn't that the goal of every defense attorney?
[iii] Thibault et al., 1985.
[iv] Quieros et al., 2013.