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Sunday, September 6, 2020
Prosecutors charged more police after Ferguson but struggled to win convictions. Will that change after George Floyd?
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Two years later, after two trials ended with deadlocked juries, a somber Deters made another announcement: He would not try the officer a third time. Jurors told him he would never win.
Deters’s rapid push to bring charges against the officer marked a significant break from how the justice system had typically handled such cases.
The deadly police shooting in Ferguson, Mo., in 2014 galvanized a nationwide protest movement that led to more prosecutors bringing charges against police. But Deters’s eventual concession showed how these cases still usually concluded — with officers cleared, convicted on lesser charges or otherwise walking free.
A Washington Post analysis of prosecutions that occurred before and after Ferguson found little change in the conviction rate for officers charged in fatal on-duty shootings.
Once these cases moved into courtrooms, prosecutors faced the same hurdles that existed before Ferguson. Officers are afforded wide latitude to use force under the law, vouched for by experts and trusted by juries. They are convicted less than half the time, usually for lesser charges.
What happened in the months and years after Ferguson — the last time the country was gripped by intense, widespread demonstrations prompted by police uses of force — could hold significant lessons as America confronts some of the same issues in the wake of George Floyd’s death in Minneapolis.
Prosecutors are again facing public pressure to bring charges against officers, cases that will proceed amid a different landscape, with polls finding greater public skepticism of police and stronger support for the Black Lives Matter movement.
For people connected with police shootings that have gone to trial, some believe the summer’s unrest could transform what happens in the future.
“There is going to be a different outcome now — absolutely,” said Mark Collins, a lawyer who has defended police officers since 1996 and is defending another in a pending murder case. “Citizens want to believe their police force is fair and just and protects them as long as they are following the laws. But every incident we have seen in the last five years erodes that, bit by bit.”
Ferguson's aftermath
The Washington Post has tracked fatal shootings by on-duty police officers since the beginning of 2015. Every year, The Post has found about 1,000 deadly shootings. Most of the people involved are armed, and shootings by police are usually deemed justified.
Occasionally, a case draws significant public attention. After Ferguson, officials responded to protests and outrage with promises of reform, adopting new training for police and expanding the use of body cameras.
Prosecutors began charging more officers with murder and manslaughter for fatal shootings and doing so quickly, breaking with a history of cases that were investigated slowly. Prosecutors were still charging only a small fraction of the police who shot and killed people, but the increase was notable.
Then, when people stopped paying as much attention to police shootings, prosecutors stopped bringing as many cases.
In 2015 and 2016, the first two full years after Ferguson, 32 police officers were charged with murder or manslaughter for an on-duty shooting — more than in the seven previous years combined, according to data tallied by Philip Stinson, a criminologist at Bowling Green University. Police shootings were high-profile news events at the time, with cases in Minneapolis, Baton Rouge, Charlotte and other places that prompted outrage and demonstrations.
Then the national attention waned.
In 2017 and 2018, the third and fourth years after Ferguson, the number of officers charged with murder or manslaughter was 17 — about half as many as had been charged in the previous two years. Last year, 11 officers were charged.
So far this year, eight officers have been charged with murder or manslaughter for an on-duty shooting. (Four officers were also charged in Floyd’s death, which did not involve any of them shooting a firearm.)
Most of these prosecutions for shootings don’t end in a conviction. Since 2015, more than half of the prosecutions — 57 percent — in resolved cases have resulted in acquittals or hung juries, about the same rate as the five prior years.
Murder convictions were rare. Most cases ended with officers pleading to reduced charges of involuntary manslaughter, negligent homicide or aggravated assault, records show.
“When it gets into the jury deliberation room or the judge on a bench trial, they are very reluctant to second-guess the split-second decision of on-duty police officers in violent street encounters,” Stinson said.
The reasons have remained largely consistent. Since 2015, four key factors have played a role in many officers being found not guilty or walking free due to hung juries, according to a review by The Post, Stinson’s database and interviews with attorneys involved in the cases, law enforcement officials and family members:
●Expert witnesses for the officers, who are typically law enforcement veterans themselves, are able to skillfully explain to jurors why officers may have feared for their lives or followed their training.
●Jurors, who already tend to trust police, bring a more skeptical eye to evidence in cases involving viral videos they saw before joining the jury.
●Defense attorneys for officers can be successful at casting them as family men defending communities — while also painting bleak pictures of the people shot and killed.
●And crucially, the Supreme Court’s 1989 decision in Graham v. Connor — which established that officers’ actions must be judged by what a reasonable officer might do under the same circumstances — gives them wide latitude for their actions.
“Police officers are in different positions than the rest of us,” said Patrick Thomassey, who represented a police officer in East Pittsburgh who was charged with killing a 17-year-old student and acquitted last year. “We as a society give them the right to use deadly force. They have to.”
'This looks bad'
In some notable cases, officers were still convicted despite these factors. More common were outcomes like what happened when Deters charged Raymond Tensing, a University of Cincinnati police officer, for shooting and killing Samuel DuBose during a July 2015 stop.
Tensing pulled DuBose over near the school’s campus for not having a front license plate on his green Honda Accord. After a brief interaction, DuBose restarted his car. Tensing yelled for him to stop, drew his gun and quickly fired into DuBose’s head.
The encounter was recorded by Tensing’s body-worn camera.
Deters, who has been the elected Hamilton County prosecutor for more than 20 years, held a news conference to announce that a grand jury had indicted Tensing for murder. Deters said his office had reviewed many police shootings but never thought one was a murder before.
“He didn’t do anything violent towards the officer,” Deters, who declined an interview request for this article, said at the time. “He wasn’t dragging him. And [Tensing] pulled out his gun and intentionally shot him in the head.”
Sitting in front of a laptop 100 miles away, James Scanlon, a former member of the Columbus police SWAT team, was among those watching the body-camera footage again and again. Scanlon thought he saw something else.
“I called the officer’s attorney and said, ‘I don’t think this young man is guilty of anything,’ ” Scanlon, a police use-of-force expert witness, said in an interview. He worked free as Tensing’s expert witness during the two murder trials.
Tensing said he was being dragged by DuBose’s car, which Deters called “comical” and “nonsensical.” Scanlon disagreed, walking jurors through a frame-by-frame analysis of the video.
“When I first watched it I thought, ‘Man, this looks bad,’ ” Scanlon said. “But when I went frame by frame, I realized the car is moving forward, [Tensing’s] being jerked backward, and he is going to the ground, unable to break free because DeBose has him pinned to the steering wheel.”
Scanlon’s testimony created doubt in the minds of some jurors, resulting in a deadlock in 2016 and again in 2017.
Even the most disturbing video footage can, paradoxically, make it more difficult to prosecute officers involved, according to attorneys who worked on either side of another police shooting caught on a widely seen video.
In April 2015, Walter Scott, who was Black, was pulled over in North Charleston, S.C., by Michael Slager, a White police officer. Scott eventually fled and Slager chased him into a nearby lot.
A bystander began filming on his cellphone and recorded Scott running away from Slager as the officer fired five bullets into the older man’s back. Slager was charged with murder the same day that the footage was made public. He was also charged later with a federal civil rights violation.
Andrew Savage, Slager’s defense attorney, said that the video footage shocked him when he saw it before getting involved.
“The video was very, very scary from a defense viewpoint,” Savage said in an interview. “If that’s all there was, it was a pretty open-and-shut case.”
But Savage said there was more to it than that. He said the media had spread “a very false narrative” that depicted the case as a traffic stop ending with a shooting. What happened after the stop, Savage said, was a “200-yard foot chase [and] what we believed was a pretty substantial ground fight” before the shooting.
Slager testified that he tried to subdue Scott after the driver fled his car and that the two men had a physical struggle. He said that Scott had grabbed his Taser during the struggle and that he felt “total fear” when opening fire.
Anthony Scott, Walter Scott’s brother, said in an interview that there was no brutal fight, but that “jurors are more apt to believe the testimony of a police officer.” Jurors deadlocked in December 2016.
Savage said the video being seen so widely helped his client’s case. “When the public perception is the government has an absolutely airtight case, ironically that helps the defense,” Savage said. “Because jurors have expectations.”
Scarlett Wilson, who prosecuted Slager, agreed. “I worry that people might feel misled by the media’s coverage when the whole story is not told publicly,” Wilson said in written responses to questions. And that can include when “they don’t see the whole video broadcast and are surprised by what else is there.”
After the mistrial, Wilson vowed to prosecute Slager again. But he also faced the federal charge, which is unusual for a police shooting. After Slager pleaded guilty in that case, which also resolved the state charges, the federal judge sentenced him to 20 years.
Police as model citizens
Defense attorneys view police officers as good clients because they usually have good records, are a “clean-cut family man, or woman,” and can testify in court because they have done so before, said Earl Gray, a lawyer in St. Paul, Minn., who is representing one of the officers charged in the Floyd case and has defended other officers.
The dynamic in court, Gray said, can often boil down to: “The police officer is a good person and the victim has a checkered past.”
When Philip Brailsford, a police officer in Mesa, Ariz., was acquitted of second-degree murder charges in the shooting and killing Daniel Shaver in 2016, attorneys involved say, his defense’s use of this portrayal played a significant role in the outcome.
Shaver was crawling on his hands and knees in a hotel hallway, unarmed, begging for his life when he was shot and killed. Brailsford was acquitted in December 2017.
Defense attorneys portrayed Brailsford as a model citizen and Shaver as a reckless drunk. Michael Piccarreta, Brailsford’s attorney, said that was fairly easy, describing his client as an Eagle Scout and a Mormon who went on a mission as a young man.
“All these things say he’s a decent guy,” Piccarreta said. “The jury is making a decision about whether they are going to lock up someone like this for the rest of their life.”
Shaver’s reputation, meanwhile, was assailed, said Susie Charbel, the lead prosecutor on the case. “The defendant is looked up to as a savior, running towards danger,” Charbel said, but Shaver was portrayed by defense lawyers as irresponsible and a heavy drinker.
Laney Sweet, Shaver’s widow, said: “If they have anything on the victim, they drive that home in the jury’s mind.”
Defense attorneys will also point to the “reasonable” officer defense spelled out in Graham v. Connor, which experts say is a pivotal factor in many cases.
Joel Jenkins, a Pike County sheriff’s deputy in Ohio, was indicted on a charge of murder months after he shot and killed an unarmed man following a high-speed chase in 2015. The chase began when Robert C. Rooker was clocked on radar going 52 mph in a 45 mph zone.
When Rooker’s Ford Ranger was pinned between a tree and Jenkins’s vehicle, the deputy opened fire, hitting the man seven times and killing him. No video footage exists of the incident. Jenkins said Rooker had reached down into his truck seconds before the shooting and he feared that the driver was grabbing a gun.
Prosecutors told jurors that, in addition to being unarmed, Rooker was trapped. They interviewed eyewitnesses who disputed the officer’s account and pointed to inconsistencies in Jenkins’s own shifting account of what happened that night. The defense, meanwhile, said Jenkins was following his training and acted reasonably since he didn’t know if Rooker might have reached for a gun.
Jenkins was acquitted in 2017. “If he waits to see the gun before he shoots, he’s dead,” said Mark Collins, Jenkins’s attorney. Prosecutors in the case declined to comment.
Now, Collins said, he expects more officers are going to wind up in court as defendants.
As protests spread after Floyd’s death — which did not involve any gunfire, but instead an officer recorded driving his knee into the prone man’s neck — so did viral videos showing police using force on demonstrators opposing police violence. Polls showed declines in the number of Americans who believe police use force properly and are held accountable for misconduct.
“The trust, the institutional trust that society has in law enforcement, has been damaged immensely by these cases,” said Savage, the lawyer who represented Slager.
It remains unclear whether this changing landscape will be reflected in how jurors view police officers who wind up on trial.
“You are going to see more cases going to trial, and it will be easier and easier to prove the case,” Collins said. “The confidence that society once had in police isn’t there.”
Collins may find out soon. He is representing a former undercover Columbus, Ohio, police officer scheduled to be tried this year for shooting and killing a woman in 2018.
Some involved in the post-Ferguson cases have watched the reckoning after Floyd’s death and wondered how they would have played out in this changed landscape.
In Minnesota, Jeronimo Yanez, a police officer in the Twin Cities suburbs, was charged in 2016 for fatally shooting Philando Castile during a stop. The aftermath of the shooting was streamed on Facebook and spread virally.
Yanez said he opened fire thinking Castile — who told the officer he had a gun in the car — was reaching for the weapon. He was acquitted on all counts in 2017.
“I wonder, what would’ve happened if we were to try the case now? As opposed to 2017?” John Choi, the Ramsey county attorney who prosecuted Yanez, said in an interview.
Castile’s mother, Valerie, said she thinks it would end differently now, because people are seeing “a trend” in the high-profile cases.
Jurors will “be less inclined to believe the cop,” Castile said. “More horror stories are coming out. It’s hard to keep believing in someone or an institution when they keep showing you something different.”
