A classic quote from the police union business manager :
“Police officers have to make split second decisions in life and death situations and I don’t think that folks over at the Circuit Attorney’s office or folks up in Internal Affairs should second guess them based on their brief impression of a video tape,” says Jeff Roorda with the SLPOA. “It doesn’t tell the whole story,” he says.
Does it bring a tear to your eye, knowing what we put these cops through when they’re just trying to do a tough job under near-impossible conditions? Completely understandable, since they do have to make split second decisions in life and death situations. But then, that wasn’t what was happening with St. Louis Police Officer Rory Bruce on February 20, 2012, which we know because there was dash cam video.
There was nothing life or death about the decision Rory Bruce made to pound this cuffed teenager in custody. Yet, he was acquitted by Associate Circuit Court Judge Theresa Counts Burke. Not because she found this conduct acceptable, but because she never watched the video.
Prosecutors had also tried, but failed, to get the teenager on the stand. First they couldn’t find him, then when they did, he asserted his Fifth Amendment right against self-incrimination.
But the video never made it into evidence because the law required prosecutors to authenticate it with someone who had personal knowledge of the events. Bruce refused to testify against himself, on the same constitutional grounds as the teen.
The teenager involved was never charged, leaving the prosecution with nothing to trade off for his testimony. As for doing the right thing against Bruce, well, the right thing on the street can sometimes be a bit different than what some of us might hope for.
But what of the other officer present, Bruce’s partner, Jacob Fowler?
That left Fowler, who claimed the same but was forced to testify after prosecutors granted him immunity from charges and obtained a last minute order from another judge.
When Fowler viewed the footage, he testified it differed from his recollection of events.
Maybe he recalled rainbows and unicorns. Who knows? What he clearly didn’t recall was anything that could be used against his partner. What a surprise.
Burke ruled he thus couldn’t authenticate it. That left only the testimony of a few police employees, who couldn’t say much because of hearsay rules.
The Circuit Attorney, Jennifer Joyce, apparently argued that the video was self-authenticating:
She said the video, filmed from a police cruiser, “speaks for itself.”
Actually, it doesn’t speak at all if no one in a position to decide Bruce’s guilt sees it, no matter how loudly it speaks to the rest of us. Were the judge’s hands tied by the rules of evidence, forcing an acquittal in the bench trial for lack of evidence? Should the video have been admitted under the business record exception, for example?
This is where the rules of evidence, the ones that protect a defendant from unreliable, tampered, partial/misleading proof, turn around to bite us on the butt. Because the defendant here was a cop, and the video so damning (even though it never tells the whole story, like how the other children made fun of Rory as a kid), should the rules of evidence be relaxed when we might really hope a bad cop gets burned?
Bear in mind, the same rules of evidence that apply to Bruce apply to anyone else.
And yet, union spokesman Roorda can’t help but gild the lily:
“You’ve got a guy who has twice skated on serious charges all in the interest of prosecuting a police officer on a misdemeanor where the only evidence is video that exonerates him,” Roorda said in a prepared statement. “This is more than a case of prosecutorial indiscretion; it’s a case of prosecutorial vanity.”
So this video exonerates him, Jeff? It may not have been admissible in a court of law, but it surely is in the court of public opinion, and it’s not likely that anyone watching the video will be giving him a good cop medal. Naturally, the union is asking that Bruce, who was fired as a probationary officer, be reinstated now that he’s been found not guilty. Hasn’t he suffered enough?
I think you should run this by the evidence law prof blawg guy. I don’t think what the judge did is right, and these prosecutors are morons.
First, you didn’t need any of these people. They could authenticated it using the first person who watched it thereafter. The judge in most criminal cases will allow the cop that went to the strip club to authenticate that the video is what he was shown when he went to investigate. Does the video keep track of time like most police cruisers? Then you can get in the protocols for the use of the dashcam. Between those two things, you’d be good.
Next, I don’t think if officers arrest my client for making child porn and the child disappears that he’s going to get the video kept out. It would get it per the investigating officer.
Then there’s the kid. Why not grant him immunity?
Then there’s the buddy cop. He says it’s not how he recalls it. Well, judge, here’s where you ability to determine credibility comes in, you putz. Call him a liar and let the damn video in.
This is just sick. That judge needs to get off the bench pronto.
I think you get put on moderation for writing this. I agree that there were ways around it being authenticated by someone who was actually present. You give one example. Another would be a murder caught on video. Proof is that it shows what it purports to show, and the officer who downloaded it from the dashcam ought to be able to deal with it.
And your other good point is why the teen wasn’t given immunity, though he was likely to be an unhelpful witness regardless. As for the partner, it’s not a cred issue when it goes to authenticating evidence, since there is no affirmative credible evidence to contrast with the incredible.
Hmm. Good point. I guess what I’m thinking is that the judge has the ability to interpret the officer’s testimony. So if the evidence presented is the buddy cop who says “that video does not conform to my recollection of the event” you can still let it in, with his caveat going to the weight rather than admissibility. After all, once the video is in, the officer can explain what about it he finds objectionable. Is the timing off? Is it doctored? etc.
As long as there is a foundation, then his recollection only goes to weight, not admissibility. But since he was being used for admissibility, there’s no weight issue until it’s admitted. But that brings us back to the question of why it wasn’t introduced by the officer who downloaded the video.
Unless the prosecution didn’t actually want to get it in. But that would be too cynical to even consider.
I would bet that the prosecutor didn’t expect the partner to develop selective amnesia and didn’t have another witness lined up.
Since it was a misdemeanor bench trial, it was probably just scheduled for a 1/2 day, maybe a full day. She probably couldn’t get any other witnesses there in time, which is why she tried the end run with the business records exception.
I’ve been discussing this at another site, which is full of a bunch that want to lynch anyone involved, or anyone who tries to explain authentication or foundation to them. It was just me an some attorney telling them the rules, and I decided to come back here for the more civilized discussion.
Scott, one thing that I think you may have missed is the culture of the department. Look at the comments of Roorda (who is running for the State Senate) – he’s so over the top about this ex-officer getting his job back that it makes me wonder if the partner was afraid to tell the truth.
If it is that bad, he may be worried about ending up like Frank Serpico, which could explain while he blew the authentication questions.
In any event, that department definitely needs a change in its culture.
Sorry about the typos. I’ve been studying for finals all day and my fingers have become cramped and my eyes blurry.
There’s no missing the culture. That’s neither a mystery nor a surprise. It’s one of the point I made to you the other day, when I asked the question about cops lying, and it’s highly unlikely anyone reading here isn’t well aware of it.
Does this help you to see the slippery slope more clearly? Sure, he could be the next Serpico. Or he could lie and help he partner. Which comes easier?
We don’t take points off here for typos. If we did, I would be an epic fail.
No, I saw it clearly before – I just wasn’t sure that was what you were addressing in your response to my initial comment.
It really irritates me when this happens, where not only do we have a bad cop, but all the rest circle the wagons to protect him. There is a point where you have to stand up and say this is wrong, even if it isn’t the easy approach.
This conduct is perfectly reasonably, completely understandable, and just plain wrong. And when someone breaks ranks (Serpico, Donna “Jane” Watts), they pay the price.