Sunday, April 27, 2008

How police "exceptionalism" leads to the miscarriage of justice...

By David Seth Michaels

A Memorial To Sean Bell

I'm shaking my head at the verdict Judge Cooperman (without a jury) rendered on Friday in the Sean Bell murder case. I'm saddened and troubled. I think I understand the roots of his acquittal verdict, and I think there has been an enormous miscarriage of justice in this case. Unfortunately, this kind of injustice probably should have been expected because of the way the law acknowledges and fosters police exceptionalism. The defense lawyers for the detectives knew it, and the prosecutors knew it as well.

Please join me in Kew Gardens.

The miscarriage in this case is only partially about race and the relationship between young, African American men and the New York City Police. That relationship is volatile, dangerous, oppressive, frightening, and frequently out of control. But race wasn't the only thing awry in this case. The other part, the part that is not receiving attention at the moment, is that the police, despite all of our pious insistence to the contrary, are different from the rest of us in the eyes of the law. They are exceptions to the rule of law. They are special and receive special treatment. How else can so many shots be fired with such devastating affect, killing one person and wounding others, at unarmed people with no judicial consequence? How else can the detectives have been found to have committed no criminal wrong whatsoever?

There's nothing new in seeing that the police are different from the rest of us, giving them a leg up in court just for their being cops despite repeated judicial instructions to jurors not to. And, believe it or not, there is a large segment of the population that wants it to be that way, that wants the police to be above the law, that wants the police to be unfettered by any law that romanticizes the rogue cop. And the rules are repeatedly interpreted to support this invidious discrimination in which police are special and those they encounter on the streets aren't just other citizens who by the way are presumed to be innocent. No. They're perps. Defendants. Criminals. Skulls. Mutts.

If you want to understand this more clearly, you need to understand a 1970 decision by Judge Irving Younger in the case, People v. McMurty. The McMurty decision is a clear, 38 year-old example of police exceptionalism. Since then, police exceptionalism has continued unabated. It has killed Amadou Diallo and it has killed Sean Bell. And it will kill again. Judges will continue uncritically to accept police testimony, and the miscarriages of justice will continue to mount unabated. Judge Younger wrote that "judges serve the integrity of the means, not the attractiveness of the end." How many more miscarriages will it take before the "integrity of the means" actually leads to justice? How many more dead people does it take?

To read more of David Seth Michaels' informed writing about exceptionalism, and People v. McMurty, click on the title above, "How police exceptionalism leads to the miscarriage of justice..."

Writer David Seth Michaels, a regular contributor to MyStoryLives, is an attorney living and practising in Columbia County, New York.

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