POLICE SHOOTINGS

It must be more than twenty years ago that I was returning home from work and saw three or four police cars parked in front of a house. Naturally, I couldn’t just drive by the place. I pulled in and spoke to the ranking officer on the scene, a huge, muscular sergeant who stood half a head taller than my 6’2”. He told me that there was a knife-wielding lady barricaded in the house. The lady, who had a history of mental illness, had used the knife to chase her family members out of the house. The family called the police, the police responded, and the standoff ensued.

When I arrived, the officers were preparing to storm the house.  The SWAT team had not been summoned for the very good reason that they didn’t have a SWAT team at that point in history. What they had was four officers wearing regulation uniforms and armed with service revolvers. The officers  had no ninja suits, no camouflage, no helmets, no Tasers, no flash-bangs, and no ballistic shields.

After a brief conference, the officers decided that the best thing to do would be to charge through the front door. I didn’t think that was a very good idea myself, but that’s what they decided to do. They kicked the door open and entered fast, hoping to grab her and overpower her before she stabbed anyone. She reacted by attacking them, holding the butcher knife over her head like an icepick and stabbing at them repeatedly. The way she stabbed with the knife reminded me of the needle on a sewing machine. The officers retreated from the house, she slammed the door shut, and the siege continued. I would later jokingly describe round one by saying that the officers went through the front door single file and came back out four abreast.

Round two began with a planning session. The officers decided that they needed to attack on two fronts rather than one, and that they needed some way to keep her out of stabbing range as they subdued her. One officer armed himself with a mop, and one armed himself with a bedspread. I watched through a window as the officers made a simultaneous advance through both the front and back doors. They moved slowly this time, repeatedly commanding the lady to put the knife down. Instead she attacked the officer who had come through the front door with the mop. Using the mop as though it were a pugil stick, the officer poked her in the face with the rag end of the mop. She decided to attack the officers who had come through the back door. Using the bedspread like a whip, the back-door officer slapped her in the face as the front-door officer advanced and poked her with the mop again. She dropped the knife, and they were able to grab her and subdue her. They dabbed at her bloody nose and immediately transported her to the local mental health facility by way of the emergency room. The lady was black.

The objective observer might characterize this action as a Keystone Kops or Mayberry RFD operation, but consider one undeniable fact—the lady survived the confrontation with only a bloody nose. Here is another undeniable fact—the officers willingly risked serious personal injury to avoid using deadly force against her. When she attacked with the knife, they would have been justified to shoot her, but I never saw any officer make any move to draw his sidearm. I tell this story to make a point which runs counter to conventional wisdom. Justifiable homicide is often avoidable homicide. The officers would have been justified in shooting her dead, but they worked hard to find a way to avoid killing her. It was admittedly unorthodox but it was definitely non-lethal.

I have handled a number of cases where officers would have been justified in using deadly force, but opted to risk injury by using non-deadly force. Almost all of those cases were handled years ago before the advent of SWAT teams, Tasers, camouflage gear, and military style body armor. Most of them occurred after nightsticks went out of general use.

One of the earliest cases involved a black gentleman who was an expert martial artist, having a black belt in karate and a short temper. He engaged in three epic fights with the police, each of which involved several officers attempting to subdue him. In all three cases, the officers were eventually able to get him under control at the expense of black eyes, bloody noses, and assorted lumps and bruises. Apparently this gentleman liked to fight, because he also engaged in numerous scuffles with people who were not law enforcement officers. Finally, he attacked the wrong civilian and was shot dead. The police were understandably reluctant to bring charges against the killer.

Another early case involved a black man about my age whom I defended multiple times on various charges. He didn’t know martial arts, but he knew how to fight, and he was as strong as a bull elephant. One evening he got a little too much alcohol in his system and engaged in a melee with a number of patrons in a bar. He was prevailing in his battle with the bar patrons when the police arrived. It took six officers to subdue him, and one of them suffered a broken arm. My client survived the encounter with bumps and bruises but no bullet wounds.

One last non-lethal story. We were taking the deposition of the arresting officer in a resisting arrest case, and he was describing how the altercation occurred. “I could tell by the way that he jumped out of his car that he was going to fight me, so I took off my gun belt and put it in my patrol car before approaching him.”  Naturally, we wanted to know why he did that. “I wasn’t going to shoot him, and I didn’t want him to have a chance to get my gun and shoot me in the scuffle.”

When I worked with the State Attorney’s Office, I investigated numerous police shootings. In my experience, the vast majority of people who got shot by the police were white. Usually, when the police shot someone, that person was presenting a threat of death or great bodily harm. Few of the people shot by the police were unarmed. Most of the shootings I investigated occurred after the proliferation of SWAT teams, and a significant percentage of the shootings were done either by SWAT teams or officers with SWAT training. Most were ruled justified, but I believe that many of them were avoidable.

I handled one case which resulted in rioting. An officer stopped a drug suspect after a high speed chase and had him put his hands against the roof of the patrol car in order to search him. The young man spun around and elbowed the officer in the head, knocking him to the ground. The officer had his service revolver in his hand and his finger on the trigger as he searched the young man. The gun had a hair trigger. When the officer hit the pavement, the gun went off sending the bullet on an upward trajectory which grazed the man’s back from bottom to top and hit him in the back of the head, killing him.

 

The officer did a number of things wrong. He had backup at the scene and could have safely holstered his weapon while he searched the man. He should not have modified his firearm to give it a hair trigger. He should have kept his finger off the trigger and outside the trigger guard. Doing any one of these three things would most likely have resulted in the young man spending the night in jail rather than being killed.

In addition to investigating police shootings, I handled countless resisting arrest with violence cases. In handling such cases, I noted a trend. Some officers regularly made resisting cases while others almost never did. The officers who almost never made resisting cases had two things in common—they were imposing physical specimens and they were polite to suspects. Smaller officers and officers of all sizes who would not or could not be polite to suspects seemed to make a disproportionate number of resisting cases. To paraphrase Al Capone, you can get farther with a kind word and a giant physique than you can with a giant physique alone.

As the years went by, it seemed to me that officers were becoming more and more prone to making resisting arrest cases. Here are a couple of cases from the end of my career which I refused to prosecute: In one case the report read “He backed up aggressively, so I Tasered him.” In another case, a young man was walking in the middle of the road when an officer pulled up to him and told him to get out of the road. The young man obeyed, but as he was leaving the road, he couldn’t resist “dropping the F bomb” on the officer. The officer ordered the young man to come back, but he continued walking to the side of the street. The officer Tasered him.  

 

It seemed to me that, at the end of my career officers were not as polite to suspects as they were at the beginning. There’s no metric by which I could measure such a thing, it was just an impression. I think the numbers would show that police shootings were more prevalent at the end of my career than at the beginning. Here’s my armchair hypothesis of why this is so (It may very well be that I am completely wrong): With more and more SWAT training, officers become more and more willing to use more and more force and less and less diplomacy to deal with situations. Dressing up in camouflage or like ninjas promotes a mindset in officers that is more prone to violence. As populations grow and officers become more distant from the people they serve, they act less like police officers and more like soldiers in an army of occupation, treating every citizen they encounter as a potential enemy. I also think that this is an equal-opportunity attitude—they’re just as likely to be impolite to and violent toward people from all walks of life.

I know next to nothing about the police shooting in Ferguson, Missouri, and I don’t like to speak when ignorant on a subject. I will, however, make a few observations. The officer may or may not have been justified. If his action was justified, it still may have been unnecessary or avoidable. If the officer is shown to have acted improperly, it may be that his actions were driven by a militarized attitude towards policing rather than by bigotry. Let's wait and see what the evidence shows before coming to conclusions.

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TAXICAB CONFESSIONS

         The old Hamilton County Jail is a singular piece of architecture. At the very front of the jail stands a three-story tower. At first glance you might mistake it for a church steeple, but on a closer look you would know it was something more ominous. The third floor of the tower has a huge picture window looking into an empty room. The second floor looks almost exactly like the third. The first floor of the tower has the door through which you enter the jail. The floor of the third story has a trap door. Looking through the third floor window, spectators could see the condemned prisoner standing on the trap door with a rope around his neck. Through the window of the second floor, spectators could see the dangling body of the prisoner after the trap door was sprung. According to local legend, only one condemned man was ever hanged in the tower. In the 1970’s the old jail was still in use.

On either side of the tower entrance to the jail stood two majestic oaks. One midsummer evening back in the early 1970’s, Deputy Sheriff Kirby Benton was standing under those trees when he saw a taxicab drive down the road toward the jail. The taxi pulled up as if to park between the trees, but it did not slow down. The taxi rammed one of the trees, crumpling its front bumper and knocking the bark off the tree. The driver’s door opened and Jonathan Franklin Small staggered out. He steadied himself on the trunk of the taxi as he walked around it to address the deputy. (In the spirit of Sgt. Joe Friday, I have changed some names to protect the innocent.)

“Hey, Kirby, I done shot and killed a man back down the road a ways. Should I go back and cover him up or what do you want me to do?” Benton had known Small for years and knew him to be an alcoholic ne’er do well who had never caused any real trouble. In light of what he knew about Small, Benton replied, “What I want you to do is get your butt back in that taxi and go home before I arrest you for DWI.” Small staggered back around the taxi, got under the wheel, and backed off the tree. He drove away from the jail, but he did not go home. He first stopped at a dancehall where he announced to anyone who would listen that he had killed a man and left him on the side of the road. Nobody paid any attention to him. Small got plenty of attention at his next stop. He walked into a liquor store and stuck the muzzle of a .45 caliber pistol into the clerk’s face and said: “Gimme all your money, and don’t gimme any crap. I done killed one man tonight and I wouldn’t mind making it two.” In addition to the money from the cash register, Small took two bottles of Mogen David 20/20 wine—“Mad Dog 20/20” as it was sometimes known. Small repeated his performance at another liquor store, warning the clerk that he had already killed one man and wouldn’t mind killing another, and then he rented a motel room in White Springs, Florida, near the Hamilton/Columbia County line. He didn’t finish his nap before Deputy Sheriffs from both counties knocked the door down and carried him off to jail.

When he recovered from his hangover, Small was ready to talk. He told Sheriff Charlie Rhoden everything he could remember. Small had been in an alcohol rehab halfway house in Gainesville when he decided he wanted to sell his Model 1911 Colt .45 pistol, and he thought he knew where he could find a buyer. All he needed to do was get home to Jasper, get his gun, and sell it. His plan had only one flaw—he had no car. Ever the resourceful entrepreneur, Small hit upon the idea of getting a taxi driver to carry him to Jasper in exchange for half the profits realized from the sale of his gun. After some searching, he finally found a driver who seemed willing to partner with him in the venture. Such an Odyssey required lubrication, so the two of them stopped at a bar on the way out of town and got a couple of bottles of Mad Dog 20/20. They had run dry by the time they reached Alachua, so they stopped at bar and got two more bottles of Mad Dog 20/20. By the time they reached Jasper, they had made several more stops to replenish their supply. At this point in the narrative, Small’s memory became fuzzy. He could remember that they definitely got the gun from his mother’s house, but he couldn’t quite recall what happened next. He did, however, remember stopping the taxi on a lonely dirt road. He did remember telling the cabbie to start running, and he did remember shooting the cabbie in the back. He said the bullet hitting the cabbie made a “whump” sound like a bullet hitting a deer. Then things went black until the Sheriff had rudely awakened him as he slept off his drunk in room 3 at the Starlight Motel. Small hadn’t a clue where the cabbie might be found.

This was the situation when I arrived in Jasper to assume Small’s defense. Hordes of lawmen were combing the woods looking for the cabbie, and Small was sitting in the jail rubbing his head and repeating that he’d keep trying to remember where he left the cabbie. I met with my client and strictly instructed him that under no circumstances whatsoever should he continue to talk to law enforcement. If he were to tell them where to find the body and they found it following his directions, that would be additional evidence of guilt to send him off for the rest of his life, or maybe even to the electric chair. As I talked to Small, I began to formulate the germ of an idea for a defense.

Florida has one of the toughest insanity laws in the United States. The defendant must be so mentally ill that he does not know the difference between right and wrong. You have to be more than a few bricks shy of a load to be that crazy. But an old Florida case recognized a form of insanity which was “super-induced by the long and continued use of intoxicants so as to produce ‘a fixed and settled frenzy or insanity either permanent or intermittent.’ ” Cirack v. State, 201 So.2d 706, 709 (Fla. 1967). I felt sure that Small was operating under such a fixed and settled frenzy, and all I needed was a mental health professional to back up my diagnosis. Even if I couldn’t get a psychiatrist to testify that Small was insane, I could still use psychiatric testimony to show he was so heavily intoxicated he could not possibly have premeditated a murder. Back in the 1970’s, intoxication was a partial defense to a first degree murder charge. It could reduce the degree of the crime to second degree murder and save the defendant from the electric chair. I was satisfied that if I couldn’t find a psychiatrist to say Small was crazy, surely I could get one to testify that he was too drunk to premeditate a murder.

While I was scouring Lake City and Gainesville looking for a psychiatrist who would agree with me, my boss, Public Defender Milo Thomas, was up in Jasper assisting me with the case. Milo’s idea of assisting was to call Sheriff Rhoden to the jail so the two of them could browbeat Small into revealing the location of the body. They worked long and hard, but they could never get Small to say anything other than “I don’t remember.” They’d probably still be at it if a farmer driving down a little-used road on his property hadn’t found the body.

At the time, I disapproved of what Milo was doing, but felt it impolitic to try to correct my boss. Years later something happened which caused me to reconsider the wisdom of Milo’s tactics. It was another missing body murder case and I was with the prosecutor’s office by that time. We were certain that eventually we would find the victim’s body, but Milo stepped in to speed things up. He brokered a deal for his client to reveal the location of the victim in return for a life sentence.

 My quest for a psychiatrist or psychologist who would agree that Small was insane proved fruitless. I couldn’t even find one who would say that Small was too drunk to premeditate a murder. No real problem. I was certain that I could talk the prosecutor into taking a second degree plea. That didn’t work either. He told me he was taking no plea bargains in the case. He intended to settle for nothing less than a verdict of guilty as charged and a death penalty.

How was I going to defend a man who was caught with the victim’s cab, whose gun had fired the fatal bullets, who had the victim’s blood all over his clothes, and who had confessed to no fewer than thirty different people? I had an idea. I might not be able to find an expert to say that Small was too drunk to premeditate a murder, but I could certainly make a common sense argument to that effect. Anybody who would crash a stolen car in front of the jail and announce to a deputy that he had committed a murder had to be crazy drunk. If you throw in the fact that he also confessed the murder to a dancehall full of people and to every victim in his string of robberies, he looked insanely drunk.

I filed a discovery disclosure putting the state on notice that I was going to offer testimony about Small’s robberies as defense evidence. Usually the state loves for the jury to know that the defendant has committed other crimes, but in this case they didn’t. The prosecutor filed a motion to suppress the evidence of Small’s robberies. The trial judge, a canny veteran of many years on the bench, was mystified by our maneuverings, but he quickly understood what was going on as we argued the admissibility of the robberies. The prosecutor argued they were irrelevant, and I argued that they proved Small was too drunk to premeditate a murder. I further announced that if the prosecution neglected to call any witness who heard Small confess, I would call the witness as a defense witness to further prove that Small was drunk out of his mind.

The judge was a no nonsense, common sense jurist who didn’t like to try cases where you could achieve a just resolution by plea bargaining. He made a few thinly veiled suggestions that the state should offer a second degree plea and ruled that he would allow me to offer all the evidence of intoxication that I wanted, including all of Small’s robberies and confessions. After the hearing, he called the prosecutor into his office for a private conference. It wasn’t long before the prosecutor came to me and told me he would take a plea to second degree murder, but Small had to plead guilty to all the robberies, too. That suited me fine, and I thought it would suit Small fine, too. It did.

While we were discussing the plea, the prosecutor said something that gave me food for thought. “I’d really like to put this case to a jury. I’m sure I could convince them to bring back a first degree murder verdict.” Now why would he say that? All he had to do was to refuse to take a second degree plea and he’d get his chance—unless the judge had told him something to the effect “If you don’t take a plea to second degree murder, I’ll reduce the charge down to second degree murder before I submit the case to the jury.” Of course, if that had happened, the judge would have been guilty of an improper ex parte communication with the prosecution, and I could have filed a motion to disqualify him from sitting on the case, but I don’t think it would have been in my client’s best interest if I had done so.

The judge sentenced Small to 50 years for the murder and 50 years for each robbery. Small behaved himself in prison and got paroled in nine years. He managed to stay out of trouble for four years before disaster struck. He got drunk, called up another judge on the telephone, and threatened to kill him. For some strange reason the Parole Board felt that his indiscretion was reason enough to revoke his parole. He has been in and out of prison ever since.