New York, NY –
But wnyc's Brian Lehrer has been wondering about the other part of the appeals court bombshell: the overturning of the obstruction of justice convictions of all three defendants, that seems to have left the blue wall of silence in tact.
As it turns out, the prosecutor in the case brought the wrong charge: obstructing a grand jury investigation for lies that were allegedly told early on, when no grand jury was in place. But in overturning the conviction, the appeals court indicated it believed the cops did try to cover up. the court said if a different charge were brought - misleading a federal investigation - "we have no doubt that such a jury verdict would have been upheld."
But that's how unpredictable and subjective the law can be. In the last day, I have spoken with lawyers, legal activists and legal scholars. None of them saw this coming.
no one would second guess the proescutor in the case because no one was jumping up and down at the time warning, you're bringing the wrong charge.
To a non-lawyer like myself, it seems like a distinction without a difference: if someone is covering up a crime from federal investigators, where would that investigation be headed, if it found something damning, but to a grand jury. And certainly, I'd think, three police officers, of all people, could be expected to know that a grand jury would be the ultimate arbiter of whether there were charges were brought after the grotesque and explosive crime against louima they were allegedly trying to cover up.
But lawyers tend to agree the distinction actually matters. The law is specific, not to be inscrutable, but to protect potential defendants from overzealous prosecutors who would love for the law to be overbroad. But a law that protects defendants is bound to occasionally let the guilty go free. Such is the tradeoff we make for our rights. And it may have happened that way in this case.
So Is there no recourse? The answer appears to be "almost no recourse". Can the government take a cue from the appeals court and now bring the RIGHT charge against the officers? No. everyone I've asked agrees. That would be double jeopardy - the same level of government bringing a different charge for the same alleged crime. Can't do that.
What they can do is pay a visit to the supremes: appeal the appellate court's bombshell to william rehnquist and company. Whether that happens will be up to whoever john ashcroft appoints as the new US attorney for new york. the experts I spoke to tend not to be optimistic that the supreme court would hear the case, deciding that enough of the case will be reheard in a charles schwarz retrial.
But I hope the coverup case isn't forgotten. Because ultimately, if the officers did what they're accused of, this is worse than a blue wall of silence. It's a blue wall of lies. And the precedent matters.
It should matter most to good cops - the vast majority who never engage in brutality. because when a good cop witnesses one of his brothers in blue breaking the law by breaking someone's bones, the pressure to cover for him is intense. The law, and the judges who interpret the law, need to press back.
Host, The Brian Lehrer Show
Brian Lehrer is host of The Brian Lehrer Show, WNYC Radio's daily call-in program, covering politics and life, locally and globally. The show airs weekdays from 10am-noon on WNYC 93.9 FM, AM 820 and wnyc.org.