Imagine a criminal trial taking place in your community. The prosecutor stands before the jury during opening statements and sets out her case. This is the prosecution’s opportunity to outline the evidence for the jury. The judge has instructed the jury that the opening statements of the lawyers are not to be construed as evidence in the case. However, this is the first time the jury will hear from the lawyers, and it is a critical part of the case.
The jury sits attentively as the prosecutor describes a crime that took place in White Plains, NY. The prosecutor describes how the criminal defendant committed the crime in detail setting out the names of the victim as well as the names of the criminal defendants. The prosecutor ends her statement by asking the jury to consider the evidence and return a verdict of guilty. However, just before she finishes up, she tells the jury that the guilt of the defendants is clear because of an incident that took place nearly 1100 miles away in Sanford, Florida. Without showing that the parties knew each other, the motivations of the defendants were known or that the facts of the two incidents were similar, the prosecutor asks you to consider the Florida incident when deciding the guilt of the defendants.
Obviously, such evidence would never be permitted in a court of law. However, we are observing a disturbing trend. In the past two months, nearly any shooting by law enforcement involving white LEOs and African American suspects is compared to the shooting of Trayvon Martin. It is clear that the Martin incident has no relationship to any officer involved shooting. The shooter in Sanford, Florida was a private citizen, not a LEO. Trayvon Martin had no contact with LEOs at all in connection with the shooting that led to his death. So, what motivates a person to compare a shooting by LEOs in White Plains, NY to a shooting in Sanford, FL and why does the public tolerate these comparisons in the media?
LEOs know that the media can be a powerful tool. So powerful in fact that law enforcement agencies must be extremely careful with information released to the media when looking for a suspect or victim. The facts released to the media must be accurate, verifiable and appropriate. Without these safeguards, the dissemination of information through the media could lead to false accusations of criminal activity, tainted trials and injuries to the reputations of innocent people. This is more than a matter of professional ethics. These safeguards are part of a commitment to due process. However, this concept currently seems lost in our society.
Due process is more than just a concept or a set of rules. Due process is a safeguard to ensure that people are provided a fair procedure from start of an investigation into criminal activity through the formal charge and trial stages. This commitment is so strong that we ensure due process through the final appeal process after the trial. The concept of due process was incorporated into the Magna Carta in 1215. That concept carried through to the United States Constitution and is alive and well in our court system today. However, the basic foundation of due process, a fair trial, is being placed in jeopardy.
A fair trial before a jury of your peers is one of the requirements of our criminal justice system. Yet, how can a trial be fair when the potential jury pool is bombarded by rhetoric on a daily basis? Reckless and sensational news stories create a risk that jurors may not be able to separate the facts proven at trial from seemingly endless news stories. The courts take precautions to keep jurors away from media reports during the trial and attempt to select out jurors who have formed an opinion prior to the start of a trial. However, in cases such as the shooting of Kenneth Chamberlain Sr. in White Plains, NY, can the LEOs receive a fair trial when nearly every news story compares the shooting to the death of Trayvon Martin?
These reports, in the media and on the internet, feed on each other. I truly doubt, at this point, that any concerted effort to counter these stories could repair the damage. However, White Plains Police Officer Anthony Carelli deserves a fair trial and he deserves due process. To the accused, LEO or civilian, due process is not a concept debated in law schools. It is a reality that prevents mob rule and public opinion from taking control of our criminal justice system.
What can we do about it? Is there a way to counter the irresponsible media reports comparing these two incidents? Can we change the way officer involved shootings are portrayed in the future? The short answer is yes, but this effort must start immediately after the incident. Law enforcement agencies must be proactive in getting the facts out to the public. Use press releases, social media and town hall meetings. Get the truth out before the media frenzy starts.
According to the news reports, a grand jury will soon review the Chamberlain shooting. Hopefully, that process will go forward without interference. I was involved with a situation last year in which people tried to circumvent the grand jury process by attempting to take out a warrant for the LEO before the grand jury could meet. The people screaming for justice for the families of Kenneth Chamberlin and Trayvon Martin should push for a fair process leading to a result that reflects our constitutional principles. For without such a process, our criminal justice system will lose legitimacy and eventually any hope of effectiveness in protecting our society.
For the people who will argue that the criminal justice system cannot be trusted to provide justice, there is only one course of action for you. Become a part of the criminal justice system so that you can personally ensure that justice is done. Be willing to be a prosecutor who works 60 – 70 hours per week at 50% of the salary of a private attorney. Be willing to walk a beat as a LEO and face danger every day while politicians seek to take away your pension. In short, do something other than sitting at a computer, shouting at a rally or stirring rhetoric. If you have no faith in our criminal justice system while watching the conviction of LEOs who commit crimes and public officials who dishonor their offices then nothing will convince you to trust the system.
During the ratification process of the United States Constitution, the delegation from the State of New York insisted upon the inclusion of a provision to guarantee due process. Due process starts when a person is suspected of a crime. We would tolerate no less from our LEOs when they investigate a crime. Our LEOs are entitled to no less when they are the subject of the investigation. The inscription on the façade of the United States Supreme Court reads “Equal Justice Under Law.” Those words have no meaning unless the concept is respected by everyone in our society at every stage of the criminal justice process.
Lance LoRusso is an attorney, former LEO and founder of LoRusso Law Firm, PC in Marietta, Georgia. He is the General Counsel for the Georgia Fraternal Order of Police and author of a blog, www.bluelinelawyer.com. He speaks at many conferences for law enforcement on use of force, responses to critical incident, and other topics of interest to law enforcement. He will soon release a book for LEOs on critical incidents.