Leaving Nothing To The Imagination

You never heard about this case. You should have, but you didn’t, and there is only one reason why: there’s no video.  Oh, video exists, and according to the lawyer for the dead guy, Christopher Slusser, it “leaves nothing to the imagination.” But it hasn’t been disclosed.

Without the video, the killing of 59-year-old David Kassick by Hummelstown Police Officer Lisa Mearkle, who put two bullets in his back, fades to obscurity.

Police said Mearkle attempted to stop Kassick’s vehicle for expired inspection and emissions stickers on Feb. 2, after which he drove away, reaching high speeds. When he did stop he got out and ran, and Mearkle was able to catch up to him.

She shocked him four times with a stun gun, equipped with a video camera, before shooting him twice in the back, four seconds apart, as he lay face down, police said. Perry argues she acted in self-defense, concerned he was reaching into his waist while she demanded he show his hands.

Putting aside whether “reaching into his waist” is good enough to kill a guy, which tends to be answered by whether you’re of the view that fear of potential threat of possible harm is good enough for a cop to take a life, or there ought to be, you know, an actual threat before you start killing people, Kassick’s killing doesn’t make a dent without a video.  For the record, he was unarmed.

But for video.

Like Walter Scott, Kassick was stopped for a traffic infraction, expired stickers this time.  Like Walter Scott, Kassick ran.  Like Walter Scott, Kassick was shot in the back. Like Walter Scott, Kassick died.  And like Walter Scott, the police officer who killed him is being prosecuted for homicide.  But unlike Walter Scott, there is no video to be seen, so nobody outside of the locals even knows it happened.

The media wants the video.

A lawyer for PA Media Group, which publishes Pennlive.com in Harrisburg, said previous state appeals court decisions support the argument that the tape has become a piece of the judicial record in the case.

The lawyer, Craig Staudenmaier, said it was not enough for the defense to warn that the jury pool might be tainted by the release.

“There’s also a compelling interest of the public in this proceeding,” Staudenmaier said.

The prosecution, wisely perhaps, has decided to be agnostic.

Dauphin County prosecutor Johnny Baer told the judge during a brief hearing Tuesday that his office was not advocating for the video’s release but also was not opposed to it. The Associated Press and other news outlets have requested the video.

“I see this as a matter between the news media outlets that have submitted a request to see it, and the court,” Baer told Curcillo.

By taking a hands-off position, nobody can later claim that the prosecution did anything to “poison the well” by tainting the jury pool.

So why is this video being withheld from public view?

Defense attorney Brian Perry argued the video was likely to affect potential jurors and would present a partial and misleading impression of the events that caused the death of 59-year-old motorist David Kassick in early February.

Well sure, videos are wont to show the secret signs that a guy needed killing.

Mearkle, 36, waived a preliminary hearing on Monday on a charge of criminal homicide, so prosecutors had no opportunity to play the recording in court. Perry said that it has not been admitted as a part of the official record.

“It’s got to be admitted,” Perry said Tuesday. “It wasn’t admitted.”

Without the video being admitted into the official record, it’s not, the defense argues, subject to disclosure to the media. While the promise of a public trial compels disclosure of the court record, a video that isn’t yet made part of that record isn’t required to be disclosed.  At least not for that reason.

Yet, there is a nagging gap in the argument that defies the defense’s argument.  This requirement of disclosure of the video as part of the court record is only one basis.  The other is that the video was made by Police Officer Mearkle in the course of her official duty as a cop.

It’s not her property. It’s not the property of some third party, to air publicly if he so chooses.  It’s government video, made on government equipment by a government official in the performance of her government duty.  And what that government video shows isn’t Mearkle’s to conceal.  It’s the public’s to see.

Much as the prosecution is sitting in the enviable position of letting the media do its dirty work, seeking access to a video that the prosecution almost certainly wants played on the 6 o’clock news night after night, it’s disingenuous to sit on the sidelines.  Sure, taking a position opens the door to defense claims of prejudicing the jury pool, because the video will be devastating and the defense will be at a loss to offer its “expert” view of why a video showing a murder isn’t really a video showing a murder.

But the fact that the media has been denied access to the video in the first place makes no sense.  A cop has no right to privacy in the performance of her duties, and there should never have been a dispute as to disclosure in the first place.  The video should have been given up immediately, as a record of what a government official did in the performance of her duty.

That the video would have prejudiced the officer is a collateral consequence. Facts have a nasty habit of doing that, prejudicing a cop’s excuse for killing a guy.  But without the video, no one will know that Police Officer Mearkle shot Kassick in the back and killed him. And since Mearkle is a cop, we should.

H/T Mike Paar

10 thoughts on “Leaving Nothing To The Imagination

  1. GregD

    [Ed. Note: Link deleted per rules.]

    Lisa Mearkle had little choice but to shoot and kill Hummelstown resident David Kassick following a routine traffic stop on Feb. 2, said Brian Perry, Mearkle’s attorney.

    Kassick, who was 59 when he died, was out on probation, ran from the law and appeared to be under the influence of drugs and alcohol during the incident, Perry said. And he didn’t comply with Mearkle after she tased him four times and kept reaching under his belly when his back was turned to Mearkle, Perry said.

    He was running from the law! And he was under the influence! THE HORROR!!

  2. Scott Morrell

    This might be a stupid layman’s question, but what the hell.

    The media will eventually see the video when the prosecution admits it into evidence. The video won’t lie. So, it seems that it is better for everyone (except the media presently) to hold off on releasing the video so there is a more fair judicial process. As you said, this would take away the defense’s claim that the defendant is being tried in the court of public opinion, whereby making it difficult to get an untainted jury pool.

    So is the question about who is more harmed if the video is released (media vs. defendant)? I would think the public would be better served with a fair conviction over the insatiable appetite to see the video now.

    Your argument is that they are mutually exclusive and they should release the video now because the public and media have certain rights. However, maybe a more prudent course of action would be to call the defense lawyer’s bluff and wait.

    I see your point regarding the law, but maybe the law would have unintended consequences, so waiving that right might work in the people’s interest in getting a fair verdict.

    1. SHG Post author

      Actually, it’s quite a good point, and had the video been taken by anyone but a police officer in the performance of duty, I would completely agree with you. Even if we put aside the likelihood that the video would have been release immediately had the defendant not been a cop, the balance of rights shifts when the video exists by virtue of an officer’s performance of her duty. Then, it’s ours, not hers, to conceal.

      As to the prejudice, the right of the public to know what their officials are doing are manifest, and concealing the video keeps the public guess, at best, and in the dark, at worst. That a person will suffer potential prejudice in the court of public opinion is a problem, but then, if Mearkle goes to trial, she will have her opportunity to show why the video isn’t to be believed. Just like anyone else charged with a homicide. This isn’t about the court of public opinion finding her guilty, but the public’s right to know what their government officials are doing in their name.

      1. Scott Morrell

        Scott…so since the police defense is putting up a fight at this early juncture, would it not make sense for the public to to take a hands off approach (even though the public has a right to the video in the police officer’s duty on the job) for the over-arching benefit in getting a conviction so that the defense cannot assert a claim of prejudice? We will all eventually get to see this video, so the question is when, not if.

        I guess this is a classic argument between “rights” and the temporary waiving of those rights without prejudice for the greater public good in getting a conviction if indeed a crime was committed.

        You are correct that if anyone else filmed it, the video would have been out already. I am suggesting that the “play” might be to not push this one now, knowing the video will come out shortly in evidence.

        I am not a lawyer but “play one on tv” due to my experience with law and dozens of lawyers informing me of various laws. I have vast amount of legal bills to justify these credentials! Haha!

        1. SHG Post author

          One of the best means of deflecting attention from governmental misconduct and abuse is to delay until long after public interest has died down, and focus has been shifted elsewhere. No, acquiescing in delay is not the right answer in this instance, as there is a significant public cost associated with it and it will ultimately have no bearing on whether or not there is a conviction.

          And note that as the video would have been immediately released if anyone but a cop was the defendant, the defense gets no bonus points for “putting up a fight at this early juncture” when the “early juncture” is only because a public official’s video was concealed because the defendant was a cop.

  3. Bartleby the Scrivener

    I am strongly in favor for very strong rights for the defense, I’d rather risk a murderer walking the streets than have police agencies deciding the video of their activities is not to be released to the public.

    While I agree the first is surely dangerous, the second is far more dangerous in my eyes.

  4. KP

    “Video? What video? Oh, I’m sorry, the video was accidentally deleted (along with a lot of Govt emails by an ex-president’s wife..)

    Sorry, but anyway, we can all believe in the word of this fine upstanding Govt officer…”

    Unless they decide its worth throwing her under the bus, or some judicial editing of the video shows what they want to be seen.

  5. Dan Wiebe

    Delaying the release provides more time for the video to be regrettably lost or erased.

    Indiana police once apologetically informed the judge that an exculpatory police video had unfortunately been taped over, so I was wrongly convicted. Of speeding, in my case, nothing more, but hey–it happens. If my court date had been earlier, the we-reuse-videotapes argument wouldn’t have been as credible.

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