Tuesday, June 25, 2013

A fair trial needed

I don't spend a lot of time keeping up with local news, so I was not aware over the weekend just exactly how big a deal it was that the jury hung, 10-2 for conviction, in the Josh Hastings trial here in Little Rock.  A good friend asked me to comment.  I don't particularly feel qualified to make a judgment about Officer Hastings's guilt or innocence, but over the last couple of days I have read reporting from a number of sources about the case, and I have also read some of the commentary from others, professional and...not professional, and there are some questions to be raised.

First, a bit of background for those who haven't been following.  In the early morning hours of August 12, 2012, Officer Josh Hastings of the Little Rock Police Department responded to a call about "suspicious persons" at a west Little Rock apartment complex.  What is known with certainty is that Officer Hastings, who was on foot, fired his weapon three times at a car, killing Bobby Moore, 15; and that two other occupants of the vehicle fled on foot after the car crashed into a vehicle parked behind it.  What is less certain are the circumstances that led to the shooting.

Officer Hastings contends that the car was driving at him at a high rate of speed (for a parking lot); that he identified himself and warned the driver to stop; that when it did not stop, he fired three times; and that he then narrowly dodged the vehicle, which continued traveling past him before rolling back and into the parked car.

The other two occupants contend that Moore, who was driving, stopped the vehicle about five feet short of Officer Hastings and put the vehicle into reverse, and that Officer Hastings began shooting at the car, killing Moore.

When the LRPD's investigations--two of them, including one by Internal Affairs--concluded that Officer Hastings's description of the incident did not match the physical evidence, the LRPD recommended that he be charged with manslaughter based upon a reckless discharge of his firearm.  The prosecuting attorney's office obliged.

At this point, I should probably say that I have a great deal of respect for police officers generally.  Indeed, I have on three occasions represented police officers who were accused of misconduct and disciplined.  On all three occasions, I undertook those representations pro bono.  Police officers do a dangerous job for low pay and should enjoy broad latitude and the benefit of the doubt where we can do so reasonably.

That being said, I do believe that there are instances in which police officers do use excessive force and should be disciplined, and when they act egregiously, criminal charges are sometimes appropriate.  Just as Officer Hastings is entitled to some deference, so are the higher-ups in the LRPD who concluded that his conduct was criminal in nature.  If we can entrust this kind of responsibility to the LRPD with regard to regular citizens, perhaps on the rare occasion when they conclude their officer crossed the line into criminal misconduct, we should take them at their word, at least with regard to the charge.

Officer Hastings was no model cop, having been disciplined several times in 5 years on the force, but his jacket doesn't reflect the kinds of misconduct that would make it easy to believe he was predisposed to violence.

His victim, Bobby Moore, was no model citizen either.  He had already been arrested several times and was actively engaged in the commission of a property crime--grand theft auto.  But property crimes do not by themselves justify the use of deadly force.  Surely we live in a society in which one does not assume the risk of being shot by the police when one makes the mistake of stealing a car.  Consequences for that activity are appropriate...but death should not be one of them.

After two days of deliberation, the jury hung.  Conviction, of course, requires a unanimous verdict.  It has been reported that the split was 10-2, the 10 being in favor of conviction on the lesser included offense of reckless homicide.  Reportedly, the 2 holdouts simply would not convict a police officer of any crime predicated on acts committed while on duty.

I think that the jury system is sound as a general principle, and requiring a unanimous verdict is an important part of that.  If two of the jurors couldn't vote to convict, then a mistrial is appropriate.

But there are two aspects of this case that trouble me.  Before I discuss them, I am put in mind of yet another conclusively established fact that I omitted above:  Officer Hastings is white.  Bobby Moore was black.  That is not an unusual occurrence in Little Rock.  The crime rate among blacks is higher than among whites.  I believe that LRPD is whiter than the general population, but I have not checked it and am willing to be corrected on the point.

The first aspect that troubles me is that the jury that hung was entirely white.  In a truly random grouping of jurors, it is hardly impossible to draw 12 white people.  The twelve who were selected may well be perfectly able to set aside any biases they may have, and I do not think that a jury that was more representative of the color of the community would necessarily reach a different result.  To his credit, the prosecutor dismissed any question that the racial makeup of the jury had anything to do with the outcome.  But it is not enough that the justice system actually be fair (to defendants and to the capital-P People).  It must also carry the appearance of being fair in order to gain the confidence of everyone involved...and we are all involved, because what is being done there is being done in all our names.  Surely a jury can be empaneled at the retrial that looks more like Pulaski County.   

That first aspect bears heavily on the second aspect of this case that I find troubling.  Apparently, at the conclusion of the trial, the presiding judge fined Bill James, the defense attorney, some $25,000 for ten violations of an evidentiary order regarding the use of juvenile records of the occupants of the vehicle.  The judge had ruled that James could refer to those records only to show the bias of the witnesses against the police; James apparently far exceeded that order. 

For his part, James has moved to have the fine tossed out, arguing that he was not afforded a hearing--and he may have a point; the imposition of sanctions for contempt usually requires a hearing, however brief it might be.  I do not care about that issue as it relates to this case.  It's between him and the judge.

What I do care about is the impact of that information on the case itself.  Clearly a part of the defense's strategy was to portray Officer Hastings's act as having taken a career petty criminal (and perhaps a future serious criminal) off the streets permanently.  Who knows whether that played a part in the holdouts' position in the jury room?  The problem with that strategy is that Officer Hastings did not know who he was shooting at.  His acts may have stopped a lot of future crimes.  Or it may have ended the life of a model citizen who was headed to work early in the morning.  He couldn't have known that when he fired those shots.

Moreover, it has been truly sickening to read commentary that suggests that because Bobby Moore and his passengers were criminals, Officer Hastings was completely justified in taking Moore, and possibly all of them, out.  Likewise the theory that Bobby Moore got what was coming to him, from whatever source, because he had committed, was committing, and likely in the future would commit crimes.  These are not the positions a civilized society takes.  It is not the path of justice. 

I hope that the retrial, when it comes, is marked by fairness, and that at its conclusion, all sides can agree that a just result was reached, even if it is not the one they wanted.  In the end, that is the justice that we all deserve--defendant, victim, and society alike.

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