Use of Force by Law Enforcement

In Blog by Chris Kessel

Generally we at Nessel and Kessel Law will refrain from editorializing on our blog.  We find it’s more useful to cite new updates in the law, discuss our own cases, or discuss meaningful cases that are pending cases before the United States Supreme Court.  However, considering the recent developments in Missouri and New York, we feel it’s time to comment.

It should first be said that the majority of law enforcement officers correctly, legally, and properly do their duty.  However, as is always the case, a few spoiled apples will ruin the bunch. 

In the Michael Brown case, the prosecutor who was in charge of presenting the evidence explained to the nation that there was an abundance of conflicting testimony.  He also mentioned that the some of the testimony conflicted with the physical evidence.  He said that based on these two factors, as well as others, that there was no enough evidence to show probable cause that the officer committed a crime.  Now here’s where I (Chris Kessel) get lost…every day in Michigan courts hold preliminary exams.  These are hearings where the prosecutor presents testimony in the hopes that they are able to establish probable cause that a crime was committed and that the defendant committed that crime.  Day after day defense attorneys impeach the credibility of witnesses that are called by the prosecutor.  We (attorneys) are able to show that the testimony of witnesses conflicts with the physical evidence, sometimes in very obvious ways.  When it comes to argument, we will vigorously argue that the only evidence against our client is the “suspect” testimony presented by the state.  We are then told by judges, of all races and ages, “well counselor, the burden of the people is only ‘probable cause’ and the witnesses testified that the defendant did _____.  Even though you pointed out several inconsistencies, that’s a question of fact for the trier of fact…”  Let me be clear, as long as a witness testifies that the defendant did SOMETHING illegal, despite the fact that they have been impeached by the physical evidence as well as their own testimony, the case will be sent to trial because the witness testified to X. 

Now as much as it pains me, the judges are usually correct…but my concern is this: if there is a probable cause when conflicting evidence arises, creating a “question of fact for the trier of fact” Michigan, why does the same standard not apply in Missouri?  

We know less about the unfortunate case of Eric Garner, mostly because the story is so fresh.  But for those that don’t know, Mr. Garner died at the hands of several members of the NYPD.  The entire incident was captured on film.  Yes, the ENTIRE event was filmed.  There is no need for speculation regarding the events in New York, we can see them unfold.  And not just part of the story or a section of events.  We can see the police approach Mr. Garner, try and subdue him, then choke him.  I was not on the grand jury (obviously), but I cannot imagine how there was not probable cause to charge this officer. 

This is not – should not – be about taking out frustration about police misconduct on a few rogue officers.  It’s about justice.  In both of these cases, men died and their killers don’t even have to face a jury of their piers.  That’s not justice.  It’s institutional protection.  Which is a serious problem.