2008-05-02 / Columnists

From the Editor's Desk

Believing In The Rule Of Law - When It Suits Your Agenda
Commentary By Howard Schwach

In a "Representative Democracy" such as ours, we elect people to represent us and to make the laws that we must all obey if civilization is to work.

We elected Gregory Meeks to the House of Representatives. We elected Malcolm Smith to the State Senate and James Sanders to the City Council.

They make our laws, but it is clear that they don't want to obey the law when it suits their agenda not to do so.

Witness a letter that Smith sent to the Justice Department.

"Notwithstanding today's acquittal by New York State Supreme Court justice Arthur Cooperman of all the criminal charges against the offending police officers, this case of patent police misconduct and excessive force - another in a much too long series of police abuse cases in the City of New York and across America - cries out for federal investigation and prosecution; the national attention that this incident has garnered demands no less. The heinous '50-shot' killing of an unarmed young African-American on the eve of his wedding has all of America now watching and wondering when justice will be served."

Well, Malcolm, justice was served. There was a trial and a decision. Just because you can't accept the decision doesn't mean that justice was not served. I expect better of you.

In fact, I expect the old-line racial arsonist Al Sharpton to call for "closing down the city," as well as for disrupting the flow of the city by blocking streets and disrupting Wall Street activities. I don't expect that from our elected officials, those we "hired" to make and enforce our laws.

The bottom line is that the entire Sean Bell case was a tragedy, and he did not have to die.

From my perspective, he died more because of the behavior of his bad-ass buddies than because the police officers overreacted.

That, of course, is the perspective of a person who has been around the block more than once in his 68 years and who has a son in the NYPD.

In any case, the justice system did what it was supposed to do, and our elected officials should support the process and the outcome because they have a vested interest in the system working. If it does not work, why do we need them to make the laws that they later discard so easily?

The detectives who shot Bell and his friends were indicted by a grand jury of their peers.

As was their right, they asked for a bench trial. I would have done the same. There was too much of a chance of Sharpton and the others stirring up emotions that would have overcome the facts for them to go before a jury.

The judge who heard the case and made the decision, Arthur Cooperman, is one of the most respected jurists in the city. He has previously convicted police officers of wrongdoing. He is no racist.

Cooperman sat there for months and listened to all the testimony. In the end, he could not find compelling evidence "beyond a reasonable doubt" that the three cops were criminally liable.

For Meeks, Smith and Sanders to now say that he made the wrong decision is to say that he made his decision for political or racial reasons. Or, that he's just plain stupid. I don't hear them saying that, because they know better, but that is the only way to read their comments. If he was wrong, tell us his motive or his disability. There must be a reason for him making a decision that you consider so totally wrong.

Cooperman was right in his decision. If you followed the testimony and understood the law, there is no other decision you can make.

Unless you're a black legislator pandering for votes.

Read Cooperman's decision, excerpted below. It is cogent and not open to misinterpretation.

"As the trier of fact, this court must determine what the facts are, apply those facts to the law, and render a verdict.

"An objective consideration of the proof ruled out sympathy and prejudice and any other emotional response to the issues presented. The court did not view the victims or the NYPD as being on trial here.

"Because justification was raised as an issue, the people had the burden of proving as an element of each charged crime that the defendant was not justified.

"It is important to note that in analyzing what happened here, it was necessary to consider the mind-set of each defendant at the time and place of the occurrence, and not the mind-set of the victims. What the victims did was more pertinent to resolving the issues of fact than what might have been in their minds.

"Also, carelessness and incompetence are not standards to be applied here, unless the conduct rises to the level of criminal acts, as defined by the law relating to each count charged.

"Reference was made earlier to the credibility of witnesses. The court has found that the people's ability to prove their case beyond a reasonable doubt was affected by a combination of the following factors: the prosecution witnesses' prior inconsistent statements, inconsistencies in testimony among prosecution witnesses, the renunciation of prior statements, criminal convictions, the interest of some witnesses in the outcome of the case, the demeanor on the witness stand of other witnesses and the motive witnesses may have had to lie and the effect it had on the truthfulness of witness' testimony. These facts played a significant part in the people's ability to prove their case beyond a reasonable doubt and had the effect of eviscerating the credibility of those prosecution witnesses. And, at times, the testimony just didn't make sense."

One of the best responses I have seen came from Kyle Murphy, a retired police lieutenant who is now a journalism student at Columbia University.

At the time of the Amadou Diallo shooting in 1999, Murphy was an instructor at the police department's in-service training unit. He wrote:

"Training can instill good habits and safe tactics, but you can't control the level of fear, or the individual choice an individual makes about when to pull the trigger. In that position, an officer has seconds to make a life-altering decision: is my life in imminent danger? How to answer that question can't be taught in a classroom.

"Not many people will ever know what it feels like to be a police officer. Most police officers, myself included, never get shot or even discharge their guns. No one can fairly say that the detectives outside the Kalua were not in a dangerous situation. Some New Yorkers seem to think that it wasn't dangerous enough. Well, they can debate that for an eternity. Gescard Isnor wasn't afforded such luxury."

Greg Meeks, Malcolm Smith and James Sanders have the luxury of the debate and of turning their constituents out on the street to protest a procedure that works, yet they do not like very much when that decision does not go their way.

My advice to them is to pick up a weapon and stand a post. Perhaps then, they will understand what happened that night.

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