The human cost of doing police business and at what cost
Sex and more sex scandals
The human cost of doing police business and at what cost
Sex and more sex scandals
SAN FRANCISCO–In the wake of public outcry over the latest police shooting of an unarmed African American, San Francisco Police Chief Greg Suhr has revived his previous call to equip his offers with electronic stun-guns, also called electronic control weapons (ECWs). With similar cases in Chicago, New York and Miami, New America Media’s Paul Kleyman interviewed Aram James, a leading opponent of ECWs about their risks. James, a former public defender in Santa Clara County, south of San Francisco, spent over 25 years in the public defender system. Now in private law practice, he is a consultant and advocate opposing the use of Tasers. Following are excerpts from the interview.
Question: You’ve been critical of arguments that ECWs are a nonlethal or less lethal alternative to guns. What are the myths you’ve raised regarding Tasers?
Aram James: That Tasers save lives is the first myth. That’s a lie. That Tasers can be used as a substitute for deadly force–that’s not true, that’s not accurate. A 2011 Department of Justice (DOJ) report found that over 200 Americans have died after being shocked by Tasers and the advocacy group Truth Not Tasers has documented over 900 deaths from them since 2004.
They are the most likely of the intermediate-force weapons, which Tasers were designed as, to kill. Other intermediate-force weapons would be a pepper spray, batons, take-downs, verbal commands, canines, etcetera.
Q: That same DOJ report says several police departments have seen reduced injuries by using ECWs as a “less lethal” weapon. What’s your response?
James: The issue is appropriate use. People have said, “Well, Mr. James, wouldn’t you rather be shot by a Taser than a gun?” And I say, of course, but that’s a red herring. If you have a knife or gun I’m not going to use a Taser to stop you. At that point a police officer needs to have a gun. Alternatively, it’s the most lethal intermediate weapon to use with people who are unarmed. A recent study by the Stanford Criminal Defense Clinic makes it very clear that research on Tasers undercuts arguments for adopting them.
If you talk to law enforcement offices who know Tasers, you don’t take a Taser to a gunfight. Tasers are effective about 70 percent of the time in dart mode, and 60 percent of the time directly applied to the body. So, if I have a knife or a gun in a range close enough to use it against a police officer, you absolutely do not use a Taser. The training is shoot center mass to kill.
Q: So, who are police using ECWs on?
James: A 2014 study from the Nebraska ACLU said that three-quarters of Taser blasts they included were used on vulnerable populations. Over and over again studies have shown that disproportionately Tasers are used on young African Americans, Hispanics, the mentally ill, elders and other groups at high risk for injury. Documented cases there included a nine-year-old boy and a 63-year-old man who was confused.
In 2005, the Houston Chronicle reported that local police officers used Tasers on minorities 87 percent of the time. The paper followed up two years later with an analysis of over 1,000 incidents showing almost all were unarmed. And Houston police used Tasers over 120 times on people with mental illness.
Studies also show that many of the most serious injuries or deaths have occurred when officers inappropriately tased someone repeatedly or with a continuous charge.
Q: How did you get involved with this issue?
James: I first got involved in 2003, with the Coalition for Justice and Accountability in San Jose. It came into existence shortly after the murder of a mentally-ill San Jose citizen, Cau Bich Tran. Police shot her in her kitchen seconds after they entered and saw her holding what turned out to be a vegetable peeler.
Members of the coalition, including me, initially supported the use of Tasers, believing they’d save lives, having bought the propaganda and the deceptive ad campaign put out by the major manufacturer, Taser International. But we learned that’s simply not true. The company has also lost lawsuits stemming from injuries or deaths when police used Tasers, also believing their claims.
Q: How are Tasers used in police training?
James: Exposure to Taser blasts used to be a mandatory part of ECW training. But the [nonprofit] Police Executive Research Forum came out with a model policy a few years ago saying there’s too much injury to use Tasers in training situations with officers. And the U.S. military has done the same. Their “Electronic Control Weapon Guideline” states, “Agencies should be aware that exposure to ECW application during training could result in injury to personnel and is not recommended.”
So my question is, if law enforcement knows ECWs are too risky to use even in very controlled training circumstance, why the heck would they want to use it on unarmed citizens in uncontrolled street situations? The question I would put to [Police Chief ] Greg Suhr is, are you willing to use these on your own officers in controlled settings to show that they’re safe? If he’s telling the truth, he’s going to say, “No, we’re not going to do that.”
Bottom line: They’re not safe to use on unarmed people and they’re not safe for police to use against armed suspects.
Q: What are appropriate uses of ECWs?
James: None in my view. The alternative, more community police is the key. When police officers are walking the beat and know people in their communities, and their vulnerabilities they’re much less likely to use force in those circumstance.
Community policing, crisis intervention training–a lot of departments have a small percentage of their officers who have been properly trained in crisis interventions. Getting police out of their cars into the communities, walking the beat, riding their bicycles, walking the neighborhood, there’s plenty there to look at in terms of how we can do community policing in a much more effective and constitutional fashion.
New America Media, News Analysis, Paul Kleyman, Posted: Dec 11, 2015
May 3, 2005
Dear Mr. George Kennedy & Ms. Karyn Sinunu:
I am writing to you to request that your office retry the criminal case against Palo Alto police officers Michael Kan and Craig Lee. I would like to make some observations and comments regarding the recently completed trial in this matter wherein the jury ultimately hung 8 to 4 for guilty. I would then like to comment on the importance of this case being retried. I hope you will consider all of my comments in the constructive manner in which they are intended.
Comments re the recently completed trial of Defendants Kan & Lee
First I think it is important to acknowledge the fine work performed during the course of all of the proceedings in this matter by Deputy District Attorney Peter Waite. Not only was his preparation and presentation of the case outstanding, but it was apparent that his confidence in the strength of the case grew as the matter proceeded. No doubt the case was not tried without some mistakes and at least one questionable judgment call, but, given all of the many pressures and roles being balanced, it was an outstanding job. By the time the case went to the jury it was my observation/opinion that Mr. Waite had out performed the very talented attorneys for the defendants. (I sat through the entire PX and trial in this matter.)
From the perspective of a former public defender and trial lawyer it was clear to me that Mr. Waite and his investigative team (Sgt. Mike Denson and Sgt. Ron Watson from the PAPD) left few stones unturned in an effort to assure that the prosecution in this matter was both professionally managed and aggressively pursued.
I had no sense during the trial of this matter, despite the obvious political pressures and ramifications for the entire prosecution team, that at anytime that the prosecution team treated this case lightly or in any fashion differently than any other serious felony matter. Finally, Mr. Waite, in an example that more public servants should model, made himself available to members of the public who had endless questions for and observations to share with him.
During the jury selection process in this case Mr. Waite’s questions and the nature of the responses by prospective jurors re the role of race, racial profiling, the right of citizens to be free of undue and unwarranted harassment by the police etc., were both fascinating and instructive re the current public mood towards law enforcement. Had the voir dire process been taped it would have made a provocative documentary on the current status of the relationship between law enforcement and the community. As indicted by the responses during voir dire, as it currently stands, the relationship appears tenuous at best.
There were numerous jurors who expressed just barely restrained anger re the recent killing of Bic Cau Tran by San Jose police officer Chad Marshall and similarly deep concern re other recent high profile killings by members of the SJPD.
What came across strongest from the jury selection process is that both the depth and width of anger and concern over misconduct by law enforcement in this county is much greater than reflected by the mainstream media in Santa Clara County. Whereas the conventional wisdom has been that police cases are hard to successfully prosecute in this county the current dynamically shifting demographics, combined with a well informed citizenry re police misconduct issues, may well have changed the landscape permanently. Given the above, it would appear that police prosecutions are much more like to be successful in this county now and in the future.
During the course of the jury selection the defense exercised a peremptory challenge against the one black female who made it into the jury box. Given the quality of her responses to the questions posed by attorneys for both sides it was clear that this prospective juror was totally free of bias for either side.
Despite the fact that Mr. Waite made an appropriate Batson/Wheeler objection that the defense, specifically attorney Harry Stern, had exercised the challenge in a in a racially discriminatory fashion the judge, Andrea Bryan, declined to ask defense council for a showing of specific bias (to establish a race–neutral reasons for the strike) or to find a prima facie case for requiring a response by the defense. The judge should have reseated the juror in the presence of the entire panel as a clear message to the defense that the racist removal of a fair minded juror would not be tolerated. (Case law clearly supports the notion that one race based peremptory challenge is sufficient to trigger the remedies contemplated by Batson/Wheeler and its descendants.)
Given that only three African-Americans were in the initial jury panel of approximately 160 perspective jurors called for in this case, there is little doubt that the discriminatory strike of the one black female to make it into the jury box denied the people a jury made up of a cross-section of the community and thus a fair trial.
The following quotes serve as a reminder of the impact of a discriminatory challenge based on race in the context of this case: … “The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.” Batson V. Kentucky, 476 U.S, at 77 (1986).
“The need for public confidence is especially high in cases involving race-related crimes. In such cases, emotions in the affected community will inevitably be heated and volatile. Public confidence in the integrity of the criminal justice system is essential for preserving community peace in trials involving race related crimes.” (Citations omitted). Finally, as to Judge Bryan’s role in denying the community a fair trial the following is pertinent: “Be it at the hands of the state or the defense, if a court allows the juror to be excluded because of group bias, it is a willing participant in a scheme that could only undermine the very foundation of our system of justice—our citizens’ ” (citations omitted).
In addition to the failure of Judge Andrea Bryan to perform her constitutional responsibility to ensure the selection of a fair jury in this matter it was apparent that the court allowed the atmosphere surrounding the trial to favor the defense. Not only did the court appear to bend over backwards to rule in favor of the defense on issues where you would normally not expect such favorable rulings, but the court personnel, including the bailiffs, routinely acted with favoritism to members of law enforcement. This included providing preferential seating in the courtroom to members of law enforcement, to allowing outbursts by law enforcement spectators to go unpunished while, at the same time, closely monitoring the conduct of non-law enforcement citizens in the courtroom to the point of a constitutional chill on access.
Despite all of the efforts by the court and its personnel to tamper with the jury selection, evidentiary rulings, deny equal access to the courtroom to the public versus members of law enforcement, all in a thinly veiled attempt to direct a verdict of acquittal, 8 members of the community still rendered a verdict of guilty refusing, in the greatest tradition of independent jurors, to buckle under the weight of the intimidating atmosphere allowed to exist by Judge Andrea Bryan. All of this speaks volumes re the strength of the evidence in this case and the fine job done by the prosecution team.
Despite the fact that only 8 of the 12 jurors in this case voted for guilty the verdict was still one of historic proportions in Santa Clara County. I know of no other case in recent Santa Clara County history where 8 jurors have voted to convict police officers for the beating of an African-American citizen. This result calls out for a retrial.
Conclusion re why case should be retried.
Community sentiment: I have enclosed an editorial from the Palo Alto Daily News, Accused officers should be retried, April 20, 2005, outlining some of the reasons why this case should be retried and encouraging your office to do so, both in the interest of the Palo Alto Police Department and the Community at large.
Given the statements attributed to Karyn Sinunu in the San Jose Mercury News (enclosed), (April 19, 2005), that the district attorney usually retries hung juries and given that in this case 8 citizens voted for guilty under the difficult conditions described in the first section of this letter, failure to do so in this case would feed into the perception that there is two standards of justice in this community, one for the ordinary citizen and one for police officers.
Given comments in a recent article in The Recorder, April 27, 2005, that there will be a chase for endorsements by police and law enforcement groups by the presumed candidates for District Attorney in 2006, and given Ms. Sinunu’s apparent intent to run for this position, failure to retry this case might well be seen as decision based on political expediency rather than the merits of retying this case.
It is clear that this case would likely not have come to light but for the courageous act of a few “whistle blowing” members of the PAPD willing to break down the traditional “code of silence” that so perniciously permeates much of law enforcement in this community. By the jury’s verdict in this case the community has spoken: it is time, once and for all, to send the message that the so-called “code of silence” will not longer be tolerated by those we entrust with the awesome power of the badge. Failure to retry this case would discourage officers in the future to speak out against rogue officers in their ranks and, as result, put the public at risk of more unwarranted beatings and deaths.
Given all of the above, the strength of the evidence presented in the first trial, the resources and efforts expended by the prosecution, the strong likelihood of a conviction beyond a reasonable doubt at a second trial, the efforts of the trial judge to sabotage the prosecution’s case in the first trial, and the strong public support for a retrial in this matter it is my request that you exercise your prosecutorial discretion in favor of a retrial in this case.
This letter requesting a retrial of Kan & Lee was originally sent out on May 3, 2005. Ultimately the DA declined to retry the case against officers Kan & Lee. In a miscarriage of justice Kan & Lee were allowed to plead guilty to one count each of disturbing the peace, as an infraction, with a maximum punishment of a $250 fine.