GOOD COP, BAD COP

I do not know how we fix the inherent bias that so many of the citizens who sit as jurors in this nation have in favor of law enforcement. It seems no amount of stories confirming what should be common sense, that there are both good and bad police officers as in any other profession, will convince some folks.

The problems this causes in criminal trials are obvious and have been discussed here and elsewhere many times before so that is not what I wish to discuss here today. Less often discussed are the systemic cyclical issues that jurors’ blind faith creates in our civil system.

The basic idea of our civil system is that when someone harms someone else, they will have to pay for it financially. This accomplishes both the micro goal of compensating the injured party for the harm but also the macro goal of deterring similar future conduct. The second goal is the more important because it ostensibly helps order our society and causes people to conform their conduct to societal standards. This is the power of the jury, it is members of society saying directly what they will and will not tolerate.

A unique feature of the civil system is that the vast majority of plaintiff’s lawyers work on what is called a contingency bases. What that means is that they take the case with no payment up front, banking on the fact that they will share in a percentage of the judgement they work to recover. The upside of this system is that people who have been harmed who do not have to have money up front to hire a lawyer to right the wrong can still find representation. The downside is that lawyers only take cases in which they believe they are likely to win and recover enough money to make it worth their time.

This brings us back to the inherent bias in favor of law enforcement. A few weeks ago in Orange County, Jim Crawford, a lawyer who has done fantastic work in helping to expose and rectify the damage done by the Orange County District Attorney’s misuse of informants, went to trial as a plaintiff against an Orange County District Attorney Investigator, Alley, who Mr. Crawford alleged savagely beat him in a courthouse hallway. You can read more about Crawford’s allegations here, but suffice to say Crawford sustained serious injuries and Alley hurt his hand. Despite this, when Crawford sued Alley and the Orange County District Attorney, Alley countersued Crawford alleging that he had instigated the fight.

Despite multiple eyewitnesses who confirmed Mr. Crawford’s account that Alley went bezerk and savagely beat Mr. Crawford, the jury apparently accepted Mr. Alley’s contention that the whole ordeal was Mr. Crawford’s fault and, while awarding negligible medical costs to both sides, levied a quarter million dollars against Mr. Crawford.

Now of course, this was terrible news for Mr. Crawford, but imagine the signal it sent to plaintiff’s lawyers or potential plaintiffs who have been harmed by law enforcement officers? Even a seemingly strong case such as Mr. Crawford’s resulted in a judgement that was most certainly not worth Mr. Crawford’s lawyers time and a debt that would bankrupt the average plaintiff.

I have personally seen clients’ who were hurt or wronged by police officers try to find a lawyer willing to take their civil case on a contingency basis only to be told by lawyer after lawyer that, particularly in Orange County, suing the police is not good business. This verdict will only buttress this perception.

The real loser is society, as police are told in one more way that we as a society do not intend to hold them accountable for their actions and they can behave any way they want, confident that even that backstop of a system rigged in their favor, the jury, will protect them.