The Washington PostDemocracy Dies in Darkness

Opinion City says white jury was motivated by racial bias when ruling against cops who killed unarmed black man

This is quite the excerpt from a recent opinion written by federal district court judge Barbara Rothstein:

“Zaro and Wiley orchestrated an operation, executed in critical part by Markert, whereby an unarmed man who was negotiating the temporary release of his four-year-old son to the boy’s grandmother was subject to an explosive breach of his back door, shot in his abdomen, and then repeatedly punched in the face while he died, despite having never threatened violence to anyone that night.”

Police Chief Mike Zaro, Officer Mike Wiley and Sgt. Brian Markert are officers in Lakewood, Wash. The man they killed was Leonard Thomas. They were at his home on that night in 2013 because Thomas’s mother called police after the two had an argument about where Thomas’s son would spend the night. Thomas had been drinking and was apparently despondent over the recent death of a friend. His mother called the police out of fear for his safety. They did what you’d think would be unimaginable at a time when someone was clearly in the midst of a mental health crisis: They sent a SWAT team. There was no reason to believe Thomas was armed. He said he wasn’t. And he was telling the truth. As Rothstein points out, he also hadn’t threatened violence against anyone, save for slapping a cellphone out of his mother’s hand.

But SWAT teams aren’t psychiatrists. SWAT teams are groups of police officers who are trained to use overwhelming force and violence to subdue a threat. Predictably, this SWAT team did not do what a psychiatrist would do; they did what SWAT teams do.

A hostage negotiator had persuaded him to let the child go home with his mother and was standing on the front porch with the boy, a car seat and a backpack full of clothes when Zaro told the SWAT team not to allow him to go back inside with the child and gave Wiley approval to breach the back door with explosives.
The blast startled Thomas, and when he reached for the child, Markert shot him.
Later, Markert would file a report — with the help of an attorney — that referred to the child as a hostage more than 100 times and insisted Thomas was trying to strangle the child.
Rothstein said the jury clearly concluded otherwise.
“But [the child] was not a hostage, and Markert and the other officers here were not attempting to separate him from a kidnapper,” she said. “Rather, they were attempting to remove a child from his parent without the parent’s consent” and at the cost of the parent’s life.

And now that child has no father. A jury recently awarded Thomas’s family $15.1 million.

But that passage isn’t the most outrageous part of the story. Thomas, it turns out, was black. The attorneys for the city argued that the jury’s verdict should be set aside because it was motivated by racial prejudice. Specifically, they argued that the jury, which had no black members, was afraid to rule against cops accused of killing a black man. The Seattle Times quotes city attorney Richard Jolley, who at a court hearing said of the jurors, “they weren’t going to go back to their individual communities and tell the people that they associate with, we found in favor of cops that shot an unarmed black man.”

So just to be clear, the city attorney is arguing that a white jury was acting with racial prejudice when it ruled against police officers who killed a black man. Here are some facts from the real world: Juries almost never rule against police officers. Juries also tend to be biased against black people. Juries with no black members tend to be especially problematic on both counts.

Rothstein was not impressed with the city’s argument. From the Seattle Times article:

“Without any evidence — without any factual foundation whatsoever — defendants have chosen to malign one of this country’s most sacred civic institutions, the impartially selected petit jury,” she said.
“The suggestion that this jury flouted its charge and colluded to hold government officials liable merely to advance the jurors’ individual reputations is not simply frivolous; it is insulting to our constitutional order,” she wrote.
“And the notion that the American justice system can be characterized by an illegitimate solicitude for black victims of alleged police misconduct is so painfully ahistorical that one wonders whether Defendants advance this argument seriously,” she said.
She found the argument particularly vexing, she said, since it was the defense that successfully persuaded her to preclude showing prospective jurors a video about unconscious bias, that they helped pick and approved the jury, and “notwithstanding the fact, should it even matter, that none of the jurors were African American.”

There is a case to be made that the city attorney’s job is to help his client win and to utilize whatever arguments and legal strategies might help accomplish that. Clearly, Jolley miscalculated with this particular strategy. But even if it had been successful, the city was never obligated to fight this verdict. City officials could have conceded before the trial that the police had responded poorly to this particular situation, offered Thomas’s family a settlement, and then implemented changes to policies and procedures to prevent something similar from happening again. They also could have accepted the jury’s verdict. That they instead proceeded to fight, and to then utilize arguments that are insulting to the city’s black residents, the non-black residents on the jury, and, frankly, anyone with a passing knowledge of the history of police abuse cases, or of the criminal-justice system in general, is a decision that can be — and begs to be — criticized.

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