The Benefit of Appearances

Jim Keech (a/k/a GreyBear) sent me two links the other day, which provide an opportunity play a game, Guess the Verdict.

These are the facts of our first case:  Defendant shoots drunken man who turns toward him and points his hands, “as if he had a gun.”

These are the facts of our second case:  Defendant shoots man with a history of violence toward defendant, making threats and moving toward a knife.

Answer:  Defendant acquitted in the first case.  Defendant convicted in the second case.

Why?  I left out a special detail.  The defendant in the first case was a cop.  In the second case, the defendant was an abused wife.  What difference does this make?  Apparently, it makes a world of difference.

The jury acquitted police officer Jay Olsen because they accepted the defense that he had a reasonable fear that his life was endangered.  But when it came to Shellye Stark, whose husband forced her into a life of prostitution to pay off his gambling debts, the jury refused to give her the benefit of the doubt.  The verdicts came in mere days apart.

It will likely surprise no one that our beloved peers will find it more palatable to believe that a cop deserves the benefit of the doubt.  Even though cops rarely get to sit on juries, thus making the veniremen more likely to associate themselves with the non-law enforcement person than the cop, they are surrounded by a myth that makes the rest of us credit their judgment far above mere mortals.  We doubt ourselves, and thus doubt others like us, in the ability to make the decision to take the life of another.  We believe that police officers, on the other hand, possess the judgment to make the right determination.

We are told that police officers undergo rigorous training in the police academy.  We learn that they are toughened by experience on the street that the rest of us would never understand or appreciate.  We watch movies and television shows, we read books and magazine articles, that bolster the belief that they gain a sixth sense, a depth of understanding, that makes them capable of understanding things the rest of us will never grasp.  And we accept the premise that they are, at their core, there to protect us from those who would do us harm.

We need to believe in police.  We need someone to serve the function of facing down the criminal, who would risk his own life for the benefit of others.  Police are killed in the line of duty, and they put themselves at risk when the rest of us would run and hide until the shooting is over.  This is certainly something worthy of recognition.

To gain this benefit of having people on the street whose function is to protect us, we need to suspend reality just a bit.  We give them guns and authorize them to shoot, with the caveat that they do so only when necessary.  We must believe that giving them guns isn’t insanity on our part, and we therefore harbor the blind belief that they will comply with the caveat because they possess some sort of discretion or judgment beyond our own.

There is much to admire in how most police officers perform their function.  Most go to work every day (well, at least for three days then two off, but that’s another discussion) with the purpose of serving and protecting, and the willingness to put themselves at risk for our benefit.  This is not merely admirable, but critical, and something for which we owe them a debt of gratitude.  That said, they are people.  Regular people, without any magical powers that enable them to leap tall building in a single bound. 

Most police officers I know have a different perspective on the use of force, both because they are more comfortable with it in general, have far less fear of being subject to punishment should they do so, and most importantly, adhere to the prime directive: Make it home alive at the end of the shift. 

What this means is that regular people are far more reluctant to shoot than a police officer, and require far more impetus to overcome that reluctance.  That doesn’t mean their perception of the impetus is as cool and reasoned as a cop, as perceived threats of violence tend to cloud the mind during the crucial period when decisions are made to pull the trigger. 

In today’s game, the law applied to both cases was the same.  Was the perceived threat objectively and subjectively reasonable, such that the use of force in response was justified?  For all the discussion that might be had, we end up going back to the same old answer.  We give cops the benefit of the doubt that we won’t give ourselves.

11 thoughts on “The Benefit of Appearances

  1. Oedipus_Lex

    It’s an interesting subject but to make a more informed decision you’d have to know more about the two cases. However, I wouldn’t dismiss the training and experience too lightly. I would say that a policeman opening fire is more likely to do so because he is, due to training, sure he has no other alternative and is confident he is legally right than because he thinks he can get away with it. There are of course exceptions to the rule. If thinking without emotion about the two scenarios, the abused wife will have had many opportunities to remove herself from the situation. The police officer will probably have had a split second to make his decision.

  2. Windypundit

    Seems to me (from the sketchy news reports) that a big part of the difference is that cops are not penalized for standing their ground or even initiating the incident. We expect them to be proactive.

    As a policy, it seems to make sense, but the concrete results are often upsetting. I know that if someone stole my car and I chased him down and shot him, I would have a lot to answer for. But we expect cops to do that. Apparenly even when they are off duty and drunk.

  3. Jdog

    Sure. It’s a different frame of reference, and it’s far more a matter of expectations than the law. When cops retire, many of them take quite a while and have some trouble adjusting to the new expectations.

    And not just cops. I can recall a situation where a local city attorney (here, they prosecute all misdemeanors and gross misdemeanors) explained that whenever anybody points a gun at somebody, he ought to be prosecuted; let the jury decide whether that was appropriate, or an assault.

    The senior cop in the room shook his head. “My guys are going to be spending a lot of time in court.”

    “Testifying is their job, and besides, most will plead — “

    “Nah. As defendants. They do that all the time.”

  4. Cynthia

    I believe that in comparing cops to a barrel of apples – at least in Houston – if you include all cops your barrel will be predominantly good apples. If, however, you narrow that barrel to DWI task force officers and narcs (narcotics officers), you will be hard pressed to find an honest one in the barrel, and even then, it’ll depend on the topic.

    As far as the stories – you cannot believe what you read or see in and on the news. They give some juicy parts & make the story fit their perception or belief. I’ve tried cases and watched trial, then read about them in the news and wondered what trial the reporter had seen because it couldn’t have been the s/he reported on.

    I don’t think we can really judge based on news reports (which is a good reason we, as defense lawyers, don’t want our jurors following the case they sit on in the news – generally it is written more from a prosecution perspective – except as it involves cops.)

  5. SHG

    We’re not really judging much of anybody, but rather making a commentary about disparate treatment of police versus other people.  The whole game thing in the beginning of the post was more a mechanism to juxtapose the two cases used to make a point, and not really a game.  There isn’t even a prize for winning.  Hope that you aren’t disappointed.

  6. Cynthia

    I totally understand. I guess I was making a separate point. I agree with the disparate treatment. One of the comments in the article said there was no evidence that the woman was abused, and I was responding to that.

    Great blog, BTW! Enjoy it.

  7. SHG

    I believe that was the prosecutor’s position, that she wasn’t abused.  And glad you enjoy the blog.  I try.

  8. Cynthia

    I meant one of the comments a reader posted in the paper following the article. Thanks to your interesting article, I blogged on it. (I am friends with Mark Bennett – and a former HCCLA president.

  9. SHG

    I see that you’ve written a post about it on your blog.  I agree that what happens in the courtroom is never quite the same as what appears in the press reports, but since I can’t be in every courtroom to see for myself, I have to make do.  But your point is well taken.

  10. Packratt

    The interestingly sad thing about that Jay Olsen case is that, if he claimed he was afraid because the man he shot was running towards him menacingly…

    Why is it that the bullet hit Shonto Pete, the man he shot, in the back of the head?

    There were actually a LOT of disturbing things about that case which weren’t in the news report you cited though… (I covered a bit of it here.) But that’s the thing about the media, often they have a bias towards police like juries do too.

  11. Jim Keech

    Ummm..Would the facts that the officer was 1) off duty, 2) intoxicated, 3) had chased the man a few blocks, 4) never called for backup, and 5) fired five shots (4 missed) in a residential area help?

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