Sunday, January 07, 2001

Police brutality difficult to prove

Outcome depends upon jurors' attitudes

By Dan Horn
The Cincinnati Enquirer

        The question is posed to jurors in almost every criminal trial: How do you feel about police officers?

        They are asked whether they admire police or fear them, whether they respect police or mistrust them. And they are asked whether those opinions will cloud their judgment.

        The jurors' answers will be more important than ever later this year when two Cincinnati police officers face charges in the death of Roger Owensby Jr.

        The trials could hinge not only on the evidence, but on the jurors' attitudes toward police in general.

        High-profile cases from New York to Los Angeles have shown just how difficult it is for jurors to put aside personal opinion when deciding the fate of a cop.

        “It's a very difficult problem to overcome,” said Scott Bradley, who helped prosecute the 1995 police misconduct case in Pittsburgh filed after Jonny Gammage, the cousin of an NFL player, was asphyxiated by police after a routine traffic stop.

        The wide range of opin ions about police officers in Cincinnati has become apparent in the two months since Mr. Owensby died after being arrested outside a Roselawn gas station.

        The coroner concluded Mr. Owensby died of mechanical asphyxiation, possibly from choking or compression of the chest while the officers tried to subdue him.

        Officer Robert Jorg is charged with involuntary manslaughter and faces up to five years in prison. Officer Patrick Caton is charged with misdemeanor assault and faces up to six months.

        The community remains divided between those who believe the officers must be punished and those who believe they were just doing their jobs.

        Some say those divisions will be just as deep when the cases go to trial. And that, they say, will make it all the more difficult to find unbiased jurors.

Objective jury?
               Jurors always are warned to leave their opinions at the courthouse door, but any good lawyer knows that's easier said than done.

        “Objectivity is where you find it,” said Christo Lassiter, a University of Cincinnati law professor. He said opinions on police issues are so strong they are bound to be an influence.

        Some lawyers say those opinions tend to favor police. As evidence, they point to the acquittal of cops in the 1991 beating of Rodney King and in the 1999 shooting death of Amadou Diallo.

        Mr. King was beaten by police in Los Angeles for several minutes after attempting to flee. Mr. Diallo was shot 19 times outside his New York apartment after police mistook him for a rape suspect.

Mirrors Pittsburgh case
               But the case that most closely mirrors that involving Owensby is the one Mr. Bradley helped prosecute in suburban Pittsburgh.

        Three officers were charged with involuntary manslaughter in that case afterMr. Gammage — the cousin of then-Pittsburgh Steeler Ray Seals — suffocated in their custody in 1995. Charges were dropped against two officers; another was acquitted.

        “There is a sense among certain members of society that police officers don't do the wrong thing,” said Mr. Bradley, an assistant district attorney in Allegheny County. “So when something like this happens, it's not the police officer's fault.”

        Because the cause of death was asphyxiation, as in the Owensby case, prosecutors had a hard time convincing jurors the officers broke the law.

        “It's hard enough in these types of cases,” Mr. Bradley said, “but these mechanical asphyxiation cases create problems because there's no smoking gun. There's no gunshot or stab wound or blunt force trauma.”

        He said the defense simply argued that Mr. Gammage died in a freak accident, and the jurors believed it.

        “We were faced with the perception that police officers wouldn't lie,” Mr. Bradley said.

Permissible force
               In some ways, the reaction is not surprising. Police have tough jobs and are required to make life-and-death decisions in a split second. And because the law allows police to use force if necessary, it's not always obvious when they go too far.

        Unlike most people, they can legally harm someone to protect the community or themselves.

        “Somebody picking up a bottle in a bar and smashing it across someone's face is a heck of a lot different than an officer who is attempting to restrain a violent suspect,” said Keith Fangman, president of Cincinnati's Fraternal Order of Police.

        Mr. Lassiter said many jurors have a hard time determining when an officer's use of force rises to the level of an assault. And many times, he said, they give police the benefit of the doubt.

        “There's a greater deference to the cop's judgment,” Mr. Lassiter said. “You just don't second-guess a cop's decision.”

        But some say that no longer holds true. Lawyer James Ecker, who defended one of the officers in the Pittsburgh case, said police are no longer held in such high regard.

        He said recent police scandals in Los Angeles and elsewhere have eroded the public trust. The accusations range from abuse of power to racism.

        “The attitude is that police officers are doing bad things,” Mr. Ecker said. “They're the bad guys now.”

        He said defense attorneys had to overcome that perception in the Gammage case before they could explain to jurors why the officers did nothing wrong.

        The defense attorneys in the Owensby case hope they can do the same. Officer Jorg's attorney, R. Scott Croswell, said his client did not harm Mr. Owensby and did not use excessive force.

        “Ultimately,” Mr. Croswell said, “a jury is going to have to determine if the state's case is credible.”

        But first, attorneys on both sides will have to find 12 jurors who can fairly hear the case.

        Prosecutor Mike Allen said he hopes everyone involved treats the case like any other. But with police officers as defendants, he knows that might be difficult.

        “I have no illusions it's going to be an easy case,” Mr. Allen said.


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