Not Trial By Video
For as long as I can remember, the argument was that a video of the conduct of an alleged crime was the gold standard, the thing every wished would exist, because otherwise trials relied on witnesses, who memories and motives were inherently suspect. If only there was a video.
And here there was. A video that went viral, and was scrutinized within an inch of its life. When it was discussed here, it was in relation to the reaction of other police officers, who strained mightily to explain why Josey's conduct was nearly as bad as every non-cop in the world thought it was.
The cops who came to Josey's defense had two things in common: they had no issue with the fact that Josey smacked Guzman down and they had no doubt that he smacked Guzman down. No one question what the video showed, but only that she deserved what she got.
Jonathan Josey was charged with assault for sucker punching Guzman. That wasn't the plan initially, but pressure brought to bear resulted in Josey's being charged. At the three-hour bench trial, one would have expected the video to be damning.
[Judge] Dugan, however, cited Josey's testimony that the 19-year decorated police veteran was trying to swipe a beer bottle from Guzman's hand and accidentally hit her. Josey said he acted in the context of an escalating melee in which some spectators were throwing beer bottles at police trying to arrest a driver doing "donuts" in the middle of the intersection.
The judge also cited other police testimony and character witnesses and an defense expert on police procedure who approved of Josey's conduct.
This is where the judge ridiculed video and proclaimed this would not be trial by video. The defense, that Josey did not intentionally sucker punch the woman who he believed sprinkled liquid on him, but was merely trying to swipe a beer bottle from her hands and accidentally punched her in the fact instead, might have been different than anything anyone else had ever seen in the video, but the judge made it clear: this would not be trial by video.
There are two possible reactions to a verdict like this. On the one hand, the judge who acquitted might be viewed as incredibly bold, standing up against the tidal wave of criticism across the country for having defied the nearly universal belief of those who don't strap on their Sam Browne every day to face the maddening crowds. After all, don't we often argue that judges should succumb to popular will, which generally supports the conviction of any defendant who is portrayed as evil to the public.
But this time is a little different, because there was a video. And it was different because the defendant was a cop.
The other possible reaction is that the fix was in. Philly has a long and sordid history of police abuse of people of color, going back to the good, old Rizzo days, The City of Brotherly Love didn't love the brothers very much. Or the sisters. Or the Puerto Ricans, or anyone else whose tint was a little darker than Frank's. But Lt. Josey was black, showing how far Philadelphia had come with regard to race relations. The question remained whether it had come as far with regard to police.
As might be expected, outrage followed the acquittal of Josey. After all, the video of what happened was there for all to see, and the judge not only saw it differently than anyone else, but showed open disdain for the very sort of evidence that had invariably been held out as the best it can get.
Thoughts immediately turned to why Judge Dugan, "52, a judge since 2007 and a decorated Army captain who served in Iraq and Afghanistan," didn't see what everyone else did. A hook was soon found:
Does it matter that he's married to a cop?
A chorus of criticism swelled Wednesday after word spread that Dugan is married to Philadelphia Police Officer Nancy Farrell Dugan, who has been on the force since 1997, city payroll records show.
She also attended Josey's Feb. 12 nonjury trial, sources said.
While it might have been prudent for Dugan to have recused himself in such a controversial case to avoid the appearance of impropriety, there was no basis for mandatory recusal here. Judges always come to the bench carrying baggage, often from their careers as lawyer, their friends, their families, their connections, supporters and haters. The question is impartiality, and the answer is that a judge who feels that he cannot be impartial is obliged to recuse himself. Few judges feel that way, believing themselves bastions of impartiality, no matter how biased they may be.
That Judge Dugan slept with a cop shouldn't be the bone of contention, any more than a judge who is married to a defense lawyer. Or prosecutor, for that matter. Had Dugan not been married to a cop, would his verdict have been more palatable? The problem is bias is an affliction that pervades the bench and defies easy explanation. It's understandable that people feel the need for some extrinsic explanation for how something could go so wrong, but it's wholly unnecessary. It can go this wrong without any outside explanation at all. It happens all the time.
Or more to the point, it doesn't get any better than trial by video. That is not only enough of a reason to criticize Dugan, but a much better one. If a video of a cop sucker punching a woman in Philly isn't good enough to convict, then no evidence will suffice.