I came to Boston at the beginning of my career to serve a one-year term as law clerk to a United States District Judge. One benefit of district court clerkships is that you get to see and work on civil and criminal trials and pretrial proceedings. Several of our cases were covered by the press. After my clerkship, I worked on other matters that received media attention of various degrees, ranging from cases that received only a few seconds in a news broadcast, to cases that covered the front pages of our major newspapers, to a case that became the subject of a best-selling book and major motion picture.
During the year of my clerkship, I quickly learned a lesson that was reinforced throughout my career, namely, that unless you are in the courtroom, listening to the witnesses' testimony, observing their demeanor, studying the physical evidence and reading the documentary evidence, you will not be able to form an accurate judgment about the case. No matter how objective reporters and media outlets try to be, they are not able to report a story in a way that puts the newspaper reader or television viewer in the shoes of the jurors. The account conveyed through the media, whether newspaper, book, film or Internet, will unavoidably be incomplete and distorted. Part of the genius of our legal system is that decisions are made by those best positioned to make them, not by us distant observers, and they ordinarily cannot be overturned except for clear error.
Even legal fact-finders are one-step removed from the truth. What actually happened in any given case is known only by those who witnessed the events firsthand, and their honest accounts of what happened frequently conflict. Lawyers, judges and juries may do their best to ascertain the truth, but their decisions are necessarily based on second-hand accounts of those who were there, and are influenced by the conscious and unconscious biases that they bring to the courtroom. Even in an age when cameras are ubiquitous, so that we all may see a video image of a crime or an arrest, juries and grand juries always will be closer to the evidence than those of us who are not in the courtroom or the grand jury room for every minute of the proceedings.
Because jurors and grand jurors play such a critical role in making judgments based on evidence, it is important that the process by which they receive evidence both is fair and has the appearance of fairness. Fact finding can be designed and implemented to develop a reasonably accurate picture of an event, or it can be designed and implemented to go through the motions with no real effort made at achieving a just result. The legitimacy of any fact-finding depends on the fairness of the process that is followed. That is why juries and judges are required to be impartial, why rules of evidence and procedure must be followed, why legal decisions may be appealed, and why lawyers who assemble and present evidence must adhere to rules of professional ethics. It is also why, in some cases, independent lawyers are appointed to investigate and prosecute matters instead of leaving prosecutions in the hands of those whose objectivity may reasonably be questioned.
Which brings me to the tragic events of Ferguson and Staten Island. It is tempting to join the chorus of angry protestors when an unarmed person of any color or gender is killed by a police officer, and even more tempting when the killing can be characterized as racially motivated. After all, the police are there to protect us all, including young black men, not to kill us. The vast, vast majority of police officers are exemplary public servants, and I am thankful every day for those who put themselves at risk to keep us safe. I also have no doubt that, as in any profession, there are a small minority who are capable of misconduct. I am confident that the senior law enforcement personnel whom I have met have no use for the occasional bad apples and do what they can to weed them out, but it just isn't possible to prevent all misconduct all the time no matter how valiant the effort.
As much as I would like to see an end, once and for all, to the tragic police killings of unarmed black men, I try not to rush to judgment about whether the officer in question in any particular case acted inappropriately. Unless I am in the grand jury room hearing and viewing all the evidence, I cannot be comfortable that I know enough about the situation to say that the grand jurors were wrong. I may form my own opinions about a case based on what I read and hear, but I always must remind myself that my information is more limited than the information available to those assigned the task of deciding whether to indict or convict.
Getting to the bottom of allegations of police misconduct, especially in death cases, is critically important to our society, and I am not suggesting that grand jury results in such cases should not be questioned. They should. But those who question the results should make sure they are asking the right questions. While we can and inevitably will ask whether we think the grand juries arrived at the right results based on what we have heard or seen about the cases in the press, the better questions to ask in each case are whether the grand jury process was fair, whether the evidence presented to the grand jury was complete, and whether the result was reasonable in light of that evidence. In assessing the fairness of the process, we should ask, among other questions, whether the prosecutors conducted the proceedings consistently with how they conduct grand jury proceedings in murder cases when the accused is not a police officer, whether the prosecutors presented the case in a manner that seemed designed to result in no indictment, whether the prosecutors had any particular axe to grind or reason to seek the exoneration of the accused officers, and whether the grand jurors represented an impartial cross-section of the communities from which they came. In assessing the completeness of the evidence, we should ask whether there was at the time of the proceedings inculpatory or exculpatory evidence that should have been but was not presented, and whether new probative evidence has come to light that may have changed the outcome had it been available at the time. In assessing the reasonableness of the result, we should ask whether it is clear from the record of the proceedings that the evidence presented in the grand jury room, considered in its totality, cannot reasonably support the grand jury's decision.
Finally, we should ask whether guidelines can be developed for determining when the investigation of alleged police misconduct should be assigned to independent prosecutors. Perhaps such guidelines already exist in some jurisdictions; this is not an area in which I profess expertise. But promoting the acceptance of grand jury decisions through processes that not only are fair but also whose fairness is unassailable would go a long way towards avoiding the type of unrest we are witnessing today.
During the year of my clerkship, I quickly learned a lesson that was reinforced throughout my career, namely, that unless you are in the courtroom, listening to the witnesses' testimony, observing their demeanor, studying the physical evidence and reading the documentary evidence, you will not be able to form an accurate judgment about the case. No matter how objective reporters and media outlets try to be, they are not able to report a story in a way that puts the newspaper reader or television viewer in the shoes of the jurors. The account conveyed through the media, whether newspaper, book, film or Internet, will unavoidably be incomplete and distorted. Part of the genius of our legal system is that decisions are made by those best positioned to make them, not by us distant observers, and they ordinarily cannot be overturned except for clear error.
Even legal fact-finders are one-step removed from the truth. What actually happened in any given case is known only by those who witnessed the events firsthand, and their honest accounts of what happened frequently conflict. Lawyers, judges and juries may do their best to ascertain the truth, but their decisions are necessarily based on second-hand accounts of those who were there, and are influenced by the conscious and unconscious biases that they bring to the courtroom. Even in an age when cameras are ubiquitous, so that we all may see a video image of a crime or an arrest, juries and grand juries always will be closer to the evidence than those of us who are not in the courtroom or the grand jury room for every minute of the proceedings.
Because jurors and grand jurors play such a critical role in making judgments based on evidence, it is important that the process by which they receive evidence both is fair and has the appearance of fairness. Fact finding can be designed and implemented to develop a reasonably accurate picture of an event, or it can be designed and implemented to go through the motions with no real effort made at achieving a just result. The legitimacy of any fact-finding depends on the fairness of the process that is followed. That is why juries and judges are required to be impartial, why rules of evidence and procedure must be followed, why legal decisions may be appealed, and why lawyers who assemble and present evidence must adhere to rules of professional ethics. It is also why, in some cases, independent lawyers are appointed to investigate and prosecute matters instead of leaving prosecutions in the hands of those whose objectivity may reasonably be questioned.
Which brings me to the tragic events of Ferguson and Staten Island. It is tempting to join the chorus of angry protestors when an unarmed person of any color or gender is killed by a police officer, and even more tempting when the killing can be characterized as racially motivated. After all, the police are there to protect us all, including young black men, not to kill us. The vast, vast majority of police officers are exemplary public servants, and I am thankful every day for those who put themselves at risk to keep us safe. I also have no doubt that, as in any profession, there are a small minority who are capable of misconduct. I am confident that the senior law enforcement personnel whom I have met have no use for the occasional bad apples and do what they can to weed them out, but it just isn't possible to prevent all misconduct all the time no matter how valiant the effort.
As much as I would like to see an end, once and for all, to the tragic police killings of unarmed black men, I try not to rush to judgment about whether the officer in question in any particular case acted inappropriately. Unless I am in the grand jury room hearing and viewing all the evidence, I cannot be comfortable that I know enough about the situation to say that the grand jurors were wrong. I may form my own opinions about a case based on what I read and hear, but I always must remind myself that my information is more limited than the information available to those assigned the task of deciding whether to indict or convict.
Getting to the bottom of allegations of police misconduct, especially in death cases, is critically important to our society, and I am not suggesting that grand jury results in such cases should not be questioned. They should. But those who question the results should make sure they are asking the right questions. While we can and inevitably will ask whether we think the grand juries arrived at the right results based on what we have heard or seen about the cases in the press, the better questions to ask in each case are whether the grand jury process was fair, whether the evidence presented to the grand jury was complete, and whether the result was reasonable in light of that evidence. In assessing the fairness of the process, we should ask, among other questions, whether the prosecutors conducted the proceedings consistently with how they conduct grand jury proceedings in murder cases when the accused is not a police officer, whether the prosecutors presented the case in a manner that seemed designed to result in no indictment, whether the prosecutors had any particular axe to grind or reason to seek the exoneration of the accused officers, and whether the grand jurors represented an impartial cross-section of the communities from which they came. In assessing the completeness of the evidence, we should ask whether there was at the time of the proceedings inculpatory or exculpatory evidence that should have been but was not presented, and whether new probative evidence has come to light that may have changed the outcome had it been available at the time. In assessing the reasonableness of the result, we should ask whether it is clear from the record of the proceedings that the evidence presented in the grand jury room, considered in its totality, cannot reasonably support the grand jury's decision.
Finally, we should ask whether guidelines can be developed for determining when the investigation of alleged police misconduct should be assigned to independent prosecutors. Perhaps such guidelines already exist in some jurisdictions; this is not an area in which I profess expertise. But promoting the acceptance of grand jury decisions through processes that not only are fair but also whose fairness is unassailable would go a long way towards avoiding the type of unrest we are witnessing today.
Comments
Post a Comment