In police shootings, should trials re-examine a victim's past?

Defense lawyers often introduce a victim's history during trial. Critics say that in cases of police violence, it can unfairly traumatize surviving family members.

Jonathan Bachman/Reuters
This family photo of Alton Sterling, who was fatally shot by police, is part of a memorial in Baton Rouge, La. A police report suggested that in 2009, Mr. Sterling was involved in an incident similar to the one that claimed his life. Its release reignited a debate about how the legal system should approach the histories of victims of police shootings.

One day in July 2013, as Jermaine McBean walked through his Florida apartment complex carrying what later turned out to be an unloaded air rifle, sheriff’s deputies shouted to drop his weapon.

When Mr. McBean, who was African American, ignored their commands, possibly because he was wearing earbuds, one deputy fired, killing the computer engineer.

After the Broward County deputy, Peter Peraza, was indicted by a grand jury on a felony manslaughter charge, his lawyers argued that McBean’s history of mental health issues had precipitated a “breakdown” and pushed to subpoena his health records.

For his family, who has filed a wrongful death suit against the sheriff’s office, the focus on McBean’s mental health was traumatic, their lawyer says. But that focus, which some say can be an attempt to discredit a crime victim, runs through several cases of police violence, raising a larger ethical question: when does a victim’s past become relevant?

“I think generally speaking, for a criminal defendant, what’s at stake for him is a lot more than his job, so we have to have rules and processes that help them present a meaningful defense. But on the other side …there shouldn’t be mechanisms for attacking the reputation of a victim unless there’s some legal reason for doing that,” says Bruce Boyer, a law professor at Loyola University Chicago.

Victim blaming or legal strategy?

On Wednesday, similar concerns enveloped an investigation into the death of Alton Sterling, who was shot by two police officers outside a convenience store in Baton Rouge, La., last week.

Mr. Sterling, who was killed while selling CDs outside the store, had what local news outlet WAFB described as an “eerily similar” encounter with police in 2009, according to a police report from the time.

Last week, his family members raised concerns, questioning how media outlets had depicted him in the wake of his death.

“Regardless if you knew him or not, he is not what the mass media is making him out to be,” said Quinyetta McMillion, the mother of Mr. Sterling’s oldest son. "This is a play to try and obscure the image of a man who simply tried to earn a living to take care of his children.”

David Schoen, who is representing McBean’s family in their civil wrongful death suit against the Broward sheriff’s office, says that for defense lawyers, such portrayals can be a calculated effort.

“It’s a particular strategy in all of these police cases. The strategy is to try to sort of manipulate public opinion by showing that the guy had a previous criminal record,” he tells The Christian Science Monitor.

But that strategy is also a key part of a defense lawyer's job, says Tamar Birckhead, a visiting professor at Yale Law School.

"Although the victim's family and others may view certain defense strategies as an unfair attempt to blame or discredit the victim, the defense lawyers are merely fulfilling their professional role," she writes in an email to the Monitor. "They should, however, consider whether the introduction of the evidence is a good strategic decision, as it may hurt the defense if the jury views the information as not relevant or as a 'sleazy' move."

'It doesn't matter if he came right off the set of 'One Flew Over the Cuckoo's Nest' '

Professor Boyer, who directs Loyola’s Civitas Child Law Clinic, argues those strategies raise additional concerns when defense attorneys are digging into juvenile records, which are often kept confidential.

In Chicago, Jason Van Dyke, a police officer facing first-degree murder charges for shooting 17-year-old Laquan McDonald, is requesting Laquan's juvenile records, which reveal a “chaotic” history as a ward of the state, according to the Chicago Tribune.

His attorneys have sought to establish that Officer Van Dyke feared for his life when he shot Laquan 16 times only seconds after arriving in a police car, in an incident captured by a dashboard video camera. They say Laquan ignored repeated commands to drop a knife he was holding.

In the video, which was delayed from release for over a year, he is shown quickly walking away from officers as Van Dyke opens fire.

As the officer had no prior knowledge of Laquan’s background, Mr. Schoen argues, the records of Laquan’s past aren’t relevant as Van Dyke’s case goes to trial.

“As I say about Jermaine’s case, it doesn’t matter if he came right off the set of ‘One Flew Over the Cuckoo’s Nest,’ [or] if he were Charles Manson, you don’t have the right to shoot someone because in the past they’ve had mental health problems, you don’t have the right to shoot someone because they were bipolar,” he says.

Presenting information that weighs on a victim’s character can also be a thorny proposition from a legal standpoint.

Generally, rules of evidence prohibit introducing evidence about the character or character traits of either a defendant or a victim in order to prove that the person acted according to that trait during a particular incident, says Viktoria Kristiansson, an attorney-advisor at AEquitas, a Washington, DC-based organization that trains prosecutors in handling cases of sexual violence.

“A lot of the times this is confusing for the public because they’re used to watching shows like ‘Law and Order’ and ‘CSI.’ where — through the magic of scripted television — character evidence about traits ends up coming in [to a trial]” she tells the Monitor, though she notes that there are some exceptions.

In cases of sexual assault, attempts to introduce evidence that discredits a victim are often more strictly prohibited by so-called rape shield laws, Ms. Kristiansson adds.

Changing practices

In the case of Jerome McBean in Florida, the stakes of including this information could be high.

When a judge granted access to the records in January, the defense engaged a psychologist to testify at his criminal hearing. Deputy Peraza’s defense argues that his actions were lawful under Florida’s Stand Your Ground law.

The psychologist likened McBean’s mental condition to a “ticking time bomb," according to local news station WPLG.

But his brother, Andrew McBean, questioned whether his diagnosis of bipolar disorder, controlled with medication, could be used to justify Peraza’s actions.

“Is it a crime to be bipolar?” he asked, WPLG reports.

In many cases, prosecutors often function as gatekeepers of the evidence that is included about a crime victim, says Kristiansson, a former prosecutor.

But she adds, with the growth of victims’ rights laws and other protections, “I think practices are starting to catch up a little bit to laws that are already in place.”

Boyer, the Chicago law professor, says Laquan McDonald’s death is one in a long line of cases that have come to represent the fractured relationship between law enforcement and politicians on one side and the city’s black residents on the other.

“The issue may be an old one, but I do think the stakes have changed because of all the attention that’s been focused on the relationships between police and minority communities,” he says. “We have to have systems in place that are willing look critically at the facts of a case, regardless of who is responsible.”

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