It started with an expired inspection sticker. It ended in the acquittal of Hummelstown police Officer Lisa Mearkle. In the middle, two things happened. David Kassick tried to flee from Mearkle, and Mearkle decided she was so afraid for her life that she fired two bullets into Kassick, lying prone on the ground, killing him.
Unlike so many cop killings, Mearkle was indicted and tried. There was no dog and pony show in the pre-indictment stage to justify why the prosecutors tried their best, but the grand jury did its duty of protecting the defendant from wrongful charges. She took the stand in her own defense and laid her heart out on the jury box rail.
Repeatedly, she stressed that she fired her pistol twice only because she was convinced that Kassick was reaching inside his jacket for a weapon.
“There was no reason for him to reach into his frigging jacket!” she yelled.
“You knew this was being recorded?” Perry asked.
“I wanted it recorded,” Mearkle replied.
“Is there any doubt in your mind that he’s got a weapon?” Perry continued.
“No doubt,” Mearkle said. “I was yelling for him to show his hands.”
This is what the law calls a subjective test, whether Mearkle truly believed what she says she believed. It may be true or not. Either way, it’s irrelevant, as that isn’t the test by which a police officer is judged. Irrelevant testimony is ordinarily inadmissible, but when it’s the defendant, broader latitude for her state of mind is, and should be, allowed.
“Something is wrong here,” she said of her thought when Kassick ran. “This is not normal for someone to flee the police.” She said she thought the man might be running because he had committed some crime. She noted her force was still seeking a robber who hit a local bank a few days earlier.
It’s not “normal” for someone to flee, but it happens with surprising frequency for a variety of reasons, some understandable and some not. But no one will ever know why Kassick fled, because he’s dead. No juror heard Kassick’s testimony as to why he ran, why his hands were beneath him when he tripped and fell to the ground, or how it felt as bullets slammed into his body and life ebbed away. Because he’s dead.
Mearkle’s testimony was, of course, post-hoc rationalization for her shooting. She didn’t really think to herself, “well, there was a bank robbery a few days ago” when weighing the pros and cons of killing a man. She didn’t weigh the pros and cons at all. She only thought one thing, the First Rule of Policing. She was afraid, and was going to make it home for dinner that night no matter what. And so her finger pulled the trigger twice.
But Graham v. Connor says that Mearkle’s fear isn’t the bar by which a cop can kill. What’s required is an “expert” in the First Rule of Policing to testify in somber tones using official jargon to explain to the jury that, if one views the world through cop eyes, this was the way it should be.
Clifford Jobe Jr., a self-employed consultant and expert witness on “matters of police-citizen interactions” with a focus in use of force, testified that Mearkle had to consider all of the unknown risks in the fractions of each second that she acted.
The “unknown risks” and the “fractions of each second” are de rigueur police shooting experts. They cover a multitude of failings in their sweep.
Jobe, under questioning by co-defense counsel Kristen Weisenberger, walked the jury through a number of police techniques, from “the red zone” — an area around the torso where officers have known suspects to conceal weapons — to the “reaction time principle,” or the three-quarters of a second an officer takes to perceive a movement or action and react.
It’s the “police techniques” where experts earn their pay. Official sounding, often science-like, words make an officer’s actions appear so much more sanitary and proper than the truth: she was a fraidy-cat who, when faced with the most remote possibility, based on wild, unsubstantiated fears, decided to kill some poor schmuck who made the mistake of running.
It was in those seconds, Mearkle later testified, that she missed some things, from Kassick’s responses that he was unarmed to the heroin syringe that he managed to pull from his jacket. The latter could have killed her, she said as she teared up on the stand in county Judge Deborah E. Curcillo’s courtroom.
A heroin syringe? Could that explain why he ran, to avoid a drug arrest? A stupid move, but one that a junkie might make? But how could Mearkle have known that? Well, he did say that he was unarmed. He did pull out the syringe to avoid being killed, but Mearkle “missed some things.” That too, however, was easily explained away, because the split second decision, her focus on center mass and red zone, adrenaline. It’s very hard work to decide whether to kill a guy.
But Jobe noted that an officer is the only element of a high-stress equation that can think, feel, see and hear. The officer is the only one who can consider the totality of a situation — from its basics to more complicated threats — and follow her obligation to the community.
All this was based on cop science, which sounds very official.
…each guideline Jobe referenced had not been scientifically proven with control groups or peer reviewed to give them legitimacy, Baer said.
“Law enforcement journals are not scientific journals,” he said.
Perhaps, but then, if they’re good enough for law enforcement, they’re good enough for a jury. And they explained away the problem: there was no more substantiated basis for Mearkle to be afraid of Kassick than there was of space aliens invading. Sheer speculation of what “might be,” with no evidence of any threat that was. No threat whatsoever. None. And yet, boom, boom.
With that, Lisa Mearkle was found not guilty for the killing of David Kassick.