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Police should face juries, not just judges

Former St. Louis city police officer Jason Stockley,

Former St. Louis city police officer Jason Stockley, 36, center, arrives with his legal team on Tuesday, Aug. 1, 2017, at the Carnahan Courthouse in St. Louis. Credit: AP / Laurie Skrivan

The city where I live and work has been roiled by protests after the acquittal of former city police officer Jason Stockley on first-degree murder charges for his 2011 shooting of Anthony Lamar Smith. Again, to many of us, the justice system seems unwilling to hold law-enforcement officers to account for violence against people of color.

The outcome is unquestionably troubling. Prosecutors alleged that Stockley planted a gun in Smith’s vehicle to fabricate a self-defense claim. There was evidence to support that theory: The victim’s DNA was not found on the gun, but Stockley’s DNA was present. The defense maintained that Stockley’s partner had spotted the gun in Smith’s hand before the stop and that Stockley’s DNA was present because he unloaded the weapon to render it safe after finding it in Smith’s car.

But perhaps as important as the decision is who rendered it. The fact-finder in Stockley’s trial was not a jury of 12 St. Louisans but instead one man employed by the state: Judge Timothy Wilson of Missouri’s 22nd Judicial Circuit. That’s because Stockley, over the prosecution’s objection, requested what’s known as a “bench trial.”

Missouri law and the U.S. Constitution permit that result. States vary in how permissive they are in allowing bench trials. Missouri is stricter than some in requiring the trial court’s consent (which Wilson granted in this case). But states are free to be generous. The Sixth Amendment guarantees an “impartial jury of the state and district wherein the crime shall have been committed.” For nearly a century, courts have treated these words as a protection for defendants alone - one they can freely waive.

But there’s reason to think this conception of the jury guarantee - merely an entitlement that defendants can spend as they please - is wrong or at least incomplete. Juries don’t just protect defendants; they give the community a voice in criminal justice. It’s a guarantee of not only an impartial jury but also a jury drawn from the community where the crime took place. Sometimes, to be sure, the community can protect defendants from an overzealous prosecution. But in other cases, a jury drawn from the community might actually protect the community by convicting.

That’s especially true when the defendant is part of the government. Indeed, one of the complaints in the Declaration of Independence was that the crown had sought to immunize British soldiers from murder prosecutions by holding “mock trials” far from the communities where the crimes occurred - that is, in places where juries were less willing to convict.

Yet today, it’s not uncommon for police-officer defendants to bypass juries and opt for bench trials. Three officers charged in connection with Freddie Gray’s 2015 death in Baltimore were acquitted by a judge, leading the state to drop charges against the remaining defendants and spurring calls for restrictions on jury-trial waivers. Under Maryland law, prosecutors have no power to object to bench trials.

One can understand why police officers might prefer bench trials. Judges, who are drawn from the legal elite, are likely less skeptical of police than inner-city residents, many of whom may have experienced police misconduct firsthand. Advocates for officers may argue that judges are less biased against the police than city residents. But one person’s “bias” is another’s lived experience.

Consider Wilson’s assertion that Smith probably possessed the gun in question because, based on the judge’s “nearly 30 years on the bench,” “an urban heroin dealer not in possession of a firearm would be an anomaly.” Critics accused Wilson, who is white, of racial bias based on this ill-considered line. A jury drawn from the city - nearly 50 percent of the population is African-American, and more than a quarter of St. Louisans live below the poverty line - very well might have approached the case with different assumptions.

And even an acquittal, if rendered by 12 ordinary St. Louisans, might have been easier for the city to stomach. Many would surely still disagree with it. But as things are, the verdict appears to many residents as simply the government sticking up for its own. (City officers have done little to counter this us-vs.-them perception. While responding to protesters this week, officers reportedly chanted “whose streets, our streets.”)

I often urge my students to be cautious in reaching firm conclusions about guilt and innocence in high-profile criminal cases. The legal details are sometimes more complicated and the facts murkier than media accounts suggest. Few can say with confidence that if we sat through a trial and heard all the testimony, we’d reach a different result - especially given the demanding burden of proof in criminal cases. Despite strong reservations about both the reasoning and the result, I can’t say with certainty that it was wrong.

But I am certain that Wilson - regardless of whether he came to the right conclusion - was the wrong person to make the decision.

Epps is an associate professor of law at Washington University in St. Louis, where he teaches criminal law and criminal procedure.

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