June 20, 2005
Ignorance is bliss and that has never been more evident than
after the acquittal of Michael Jackson on all 10 counts of
alleged child molestation against him.
Don't get me wrong; I am not one of those arguing that he
should have been found guilty, no matter what, and that those
"dumb" jurors from Santa Maria are ignorant hicks
who couldn't convict a child molester if they were given a
hidden camera shot of the despicable act.
You see, while I believe there is clear evidence Whacko Jacko
operates in a weird world far different from yours and mine,
and that there is very strong suspicion that he gave little
boys some "Jesus Juice" and slept with those boys
in an environment of carnal knowledge, we in the public and
media need to better understand how our criminal court system
operates and not corrupt it because we disagree with a verdict.
I say this to you because I understand first-hand how those
jurors must be feeling right now about all the criticism they're
getting for doing their job during the trial. They are enduring
the slings and arrows of the media speculation and public
ignorance about what the judge told these jurors to do and
the rules they had to follow.
There are a lot of people who are so shocked about the verdict
that they are wallowing in their ignorance as they scream
that the verdict was an injustice. You hear it on talk radio,
by the water cooler, in many conversations over lunch and
dinner, and see it in letters to the editor. Large numbers
of Americans either believe Michael Jackson was damned guilty
as sin, or, his acquittals were technically correct and they
still think MJ is a sicko who deserves time behind bars.
All this hullabaloo brings an interesting grin to my face.
I've been a juror in criminal trials a couple of times, and
it was not fun. But it is my six years as a Hearing Examiner
for the Los Angeles Police Commission, helping adjudicate
discipline matters involving LAPD officers in scores of cases
that gives me the greatest experience from which to speak
on this topic.
Those of us presiding over these so-called "trial boards"
also have our critics, the "ignorance is bliss"
types who think they know better and always second-guess the
verdicts we issue. One of the biggest critics of the police
system is a guy who should know better but who uses his "bully
pulpit" to get his way, even when it's not in the public
interest. That man, of course, is William Bratton, the Chief
of the Los Angeles Police "De-pat-ment". The man
was previously the head of the New York and Boston police
agencies, as his accent clearly shows, and his attitude is
that if it was good enough for those East Coast posts, them
damn the torpedoes and make it work in L.A.
It doesn't work that way, Billy Boy.
To more clearly understand the similarities and differences
between a criminal trial like Michael Jackson's and LAPD discipline
hearings, and the mealy-mouth critics of both, let me offer
you a quick backgrounder and you'll begin to see why the outcomes
of verdicts aren't always what they seem to be, and why the
results can clash with what some people expect of those verdicts.
In both types of judicial hearings, independent "finders
of fact" are appointed to hear the testimony of the witnesses,
weigh the evidence, and then rule on the outcome. In MJ's
case it was a criminal court jury serving as those "finders
of fact", and in the LAPD discipline trial boards, it
is an administrative hearing tribunal composed of two command
officers with the rank of Captain and above, and a civilian
hearing examiner, like me.
In both trials, an advocate (specifically a prosecutor in
the criminal case) presents the evidence and the case for
the people (or the department) and the accused is represented
by an attorney whose job it is to defend the interests of
the accused. In a criminal trial that accused is called the
defendant, and he/she is represented by a defense attorney.
In both case, the representative laying out the accusations
gives an opening statement, lays out the logic for a guilty
finding, promises to present evidence showing that guilt,
and then calls witnesses who supposedly will prove the guilt
of the accused. In a trial, the jury is told that all this
evidence must prove guilt "beyond reasonable doubt",
but in the LAPD hearing process, the evidence has to meet
the standard of the "preponderance of evidence".
Webster defines this as "Superiority in weight, force,
importance, or influence." In both cases, a defense counsel
tries to convince jurors the accused is NOT guilty, the advocate/prosecutor
and his/her witnesses are all wet, and behold, here is defense
evidence to further prove the point of not guilty.
In other words, as long as an average person finds the evidence
to be important and to carry some weight and influence over
other evidence, it is enough to find someone guilty in the
LAPD process. Even if you have reasonable doubt, if the evidence
fits, you must convict (to borrow very loosely from the courtroom
antics of the late Johnny Cochran).
Here's where we have to part this story into two very different
pathways for you to understand how we end up with verdicts
that don't make sense to some people and frost the livers
In a case like MJ's, the basis for the case was hopefully
one where police investigators did a good job of examining
the evidence, interviewing witnesses, developing forensic
evidence, and then presenting the entire scope of the case
to a district or state's attorney for presentation in court.
Even though the D.A. will do his/her best to sell the case
to the jury, ultimately, the jurors decide guilt or innocence
and a judge hands down the penalty when there is finding of
guilt. This judge CANNOT decide to override the jury's decision
without risking the seriousness of an appeal and the ever-embarrassing
"overturning" of his/her actions by a higher court.
The same setting actually exists in the LAPD-hearing process
and this is why I find an amazing parallel with the results
of the Michael Jackson case and what I have experienced in
the police hearings. The common thread here is that unless
you are on that jury/trial board panel and get to see the
ENTIRE spectrum of evidence for yourself, no one else in the
world who has not been sitting in your shoes can tell you
they know better. But, of course, that doesn't stop the so-called
"experts" who love to second-guess and who find
that Monday-morning quarterbacking is always 20/20.
That is exactly what we are seeing in the aftermath of MJ's
trial and precisely what is happening right now with the discipline
of officers within the LAPD. Chief Bratton, whose job under
the City Charter is to issue penalties when officers are found
guilty by the trial bards, is clamoring for the people to
let him be judge, jury, and executioner.
Bratton is not content to allow a court-like process to determine
guilt and innocence and deal with the penalty recommendation
of the trial board, who very much like jurors, listened to
all the evidence, heard the testimony of witnesses, and in
a departure from a traditional criminal or civil court case,
actually had the ability to ask questions of the witnesses
directly to further elicit testimony germane to the case.
You see, in the LAPD trial boards, the three of us (the two
command officers and me as the civilian) can directly ask
the witnesses whatever we chose, we can ask to see more evidence
than what has been presented to us, we can see first-hand
the demeanor of all the parties and the body language and
facial expressions of the accused, the department advocate,
the defense attorney, the investigators, the whole shooting
match and THEN decide guilt or innocence.
The Chief, by contrast, NEVER sees anything but an investigators
report with the alleged breach of department rules and policies,
and yet, the Chief wants to be the final decision-maker on
guilt and/or innocence, and solely determine the final punishment.
Let me assure that on several occasions, we found in trial
boards that witnesses to the alleged acts never showed up,
could not be found, refused to testify, whatever. And yet,
there is an expectation by the Chief of the LAPD that regardless
of that, we should proceed to validate the initial investigator's
findings and find the officer(s) guilty.
Furthermore, I can't tell you how many times we have found
that the alleged statements of some witnesses, as laid out
by the investigator, turned out to be false, misunderstood,
mistaken, taken out of context, etc. As a result, we could
not accept the investigator's allegation as fact and had to
do further work to determine exactly what happened.
Yet, the Chief of the LAPD wants to void this process and
solely determine the guilt or innocence of the accused officer
based on a report.
Look, because cops are human, they make mistakes, they screw-up,
and sometimes they are just bad to the bone and deserve to
be fired, and in some cases, sent to jail. But for the most
part, police officers are very good at their job but make
dumb mistakes just like you and I do at work. And just like
you and I may get suspended, demoted or in a worst case scenario,
get fired, that also happens to cops.
Just like you and I may have the protection of a discipline
process, a union process, or a civil service protection process,
police also have and deserve that protection.
However, that time-proven process is not good enough for
the LAPD Chief and he wants to determine the fate of LAPD
officers based on an investigator's potentially biased report
instead of a thorough examination and evaluation of the evidence
and the witnesses by three experienced "finders of fact",
the three of us on the trial boards.
No one in their right mind would want to be subjected to
that kind of fate in the world of secretaries, nurses, plumbers,
machinists, teachers, delivery drivers, or restaurant workers.
You would not want one person with a possible personal bias
against you to be the only one whose side of the story is
accepted as fact in the determination of your future career.
Yes, I know, that happens every day in some fields, but it
should NOT be the case for police officers who are a) highly
trained at a average cost to the taxpayers of $100,000; b)
work several years to perfect the skills of risking their
lives in order to save ours; b) are harder to find and retain
than virtually any other profession; c) deal with some of
the worst elements in our society who find it just as likely
to lie about an officer's conduct as they are likely to kill
you, me or an officer without batting an eyelash.
For all these reasons, we must make sure that we allow juries
and finders of fact, in criminal courts and administrative
hearings, to do their job and not second-guess them before
OR after they have done their job. If you can't be there to
sift through all the evidence, the good, the bad or the ugly,
then you are clueless as to what has really happened and you
have NO businesses second-guessing the final verdict.
I have personally been the "finder of facts" in
more than 75 police discipline cases and even more administrative
hearings involving the revocation of police-issued permits
for businesses operating as bars, massage parlors, pool halls,
adult entertainment facilities, and others of the 65 types
of businesses requiring police permits in the City of Los
I can tell you without hesitation that there has NEVER been
a case that ended the way it began. There has always been
some element that was very difficult to determine, understand,
accept, or deal with differently because of the application
of the appropriate policy, rule or law. That is simply the
very nature of a free society and our judicial system.
It's not a perfect system, and yes, sometimes mistakes are
made. But we must allow the system to work AND make mistakes,
and tweak it as we go along. We can never, and should never,
demand changes simply because we are impatient, ignorant,
or lusting for power that can corrupt the very underpinnings
of a just judicial process, our free country and our precious
liberties that guarantee that we are innocent until proven
It doesn't matter whether we are talking about the Michael
Jackson case or an LAPD discipline hearing. We must let the
system work and temper our criticism if we don't have all
the facts that the finders of fact had when they made their
decision. Whether you're an amateur court watcher or an impatient
and power-hungry bureaucrat, don't try to fix a system that