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http://www.courier-journal.com/localnews/2...0307-10565.html
Convicting police called uphill fight
Experts consider possible factors in Mattingly case
--------------------------------------------------------------------------------
By JASON RILEY
jriley@courier-journal.com
The Courier-Journal
Prosecutors cleared a major hurdle Friday with the murder indictment of Louisville Metro Police Detective McKenzie G. Mattingly, who shot and killed a fleeing 19-year-old suspect in the back in January.
But the hard part is still to come, according to legal
experts, who say that while winning an indictment against a police officer in a shooting case is rare, getting a conviction is even more difficult.
"They are mostly acquitted," said Geoffr
ey A
lpert, a professor of criminology at the Universit
y of South Carolina specializing in studying police use of deadly force. "It's his job to have a gun. It's his job to enforce the law, and if he makes a mistake, it's more likely" to end up as a civil case than a criminal one.
Mattingly's attorney will most likely argue that the detective shot Michael Newby because he felt threatened, Alpert said --and if jurors believe that, it is unlikely they will convict him. In addition, police officers generally have instant credibility with jurors and are often given the benefit of the doubt, other experts say.
"Juries have a natural sympathy for police officers," said Sam Walker, a criminal justice professor at the University of Nebraska at Omaha. "Ther
e is an ingrained bias."
One mitigating factor in the Newby case, the experts said, is the racially charged climate surrounding it; the seventh fatal shooting of an African-American man
by
Louisville o
r metro police since 1998 escalated emotions.
None of the officers in the other si
x shootings was indicted.
For that reason, picking an unbiased jury may be a challenge, experts said.
"The citizens are going to be questioning the police and police practices because of past behavior of other officers," said Tod Burke, a former Maryland police officer and now a professor of criminal justice at Radford University in Virginia. "The fact that there's a history (of this), the public may feel that something's got to be done."
"The officer is in a very, very bad situation," he said, adding that Mattingly's attorney, Steve Schroering, should immediately ask for a change of venue outside of the Louisville media area.
Schroer
ing declined to comment for this story.
Mattingly could not be reached for comment yesterday, but a new posting on a Web site formed in support of Mattingly --www.savemckenzie.com --w
as sign
ed "Love, McKen
zie," and thanks citizens for supporting him.
"By now, most of you have seen the news or spoken to someone about my
indictment (Friday)," the posting said. "These are dark hours but we will shine through! We are holding up as best as can be expected. Now, more than ever, your support and prayers are needed. We are not sure of the future but comfortable in the fact that things will be okay in the end."
A question of threat
Police Chief Robert White has said that Mattingly and Newby were struggling over Mattingly's service handgun when the weapon discharged during an attempted undercover drug buy just outside a liquor store and grocery near 46th and Market streets on Jan. 3.
Newby ran, and Mattingly fired his gun four times,
striking Newby three times in the back. Police said drugs were found on Newby's body and a .45-caliber gun was in his waistband.
"If there were no gun and the guy was
just runnin
g away and the officer shot
him in the back," a conviction would be more certain, Alpert said. "But that's because there is no threat. Here, there is a potential of a threat.
"To me thats the bottom line," he added. "If the officer had any kind of an inkling that this kid was a threat and thought he turned (back toward Mattingly) or had his hand on his waist about to turn, chances are they are not going to get a conviction."
Under Kentucky law, a person is allowed to use deadly force in order to prevent death or serious injury from another.
However, "If it's portrayed as (Newby) was running with his hands out to his side and the officer was never threatened," Alpert predicted, "they'll convict."
Prosecutors in Common
wealth's Attorney Dave Stengel's office would not discuss specifics of the case, and police have not said whether Mattingly knew Newby had a gun.
Mattingly told
his side of th
e story to a Jefferson County grand
jury on Friday, but proceedings are secret. The jurors indicted the officer on charges of murder and wanton endangerment, the latter for allegedly endangering the lives of five people who were nearby when he fired his weapon. He will be a
rraigned tomorrow.
Hard to track cases
Statistics on the number of people fatally shot by police in the United States and the number of times police are judged to have used excessive force, as well as percentages of police convictions in fatal shootings are difficult to find.
A New York Times story a few years ago noted that no comprehensive accounting for the nation's entire 17,000 police departments exists.
And according to the Bureau of Justice Statistics, the annual number of nonjustifiable homicides by police
in the United States is unknown, because homicide reports tracked in an FBI database do not differentiate between murders by police and by civilians.
This lack
of statistics make
s it difficult to draw meaningful conclusio
ns on the number of fatal police shootings, the racial makeup of the shootings, how many are justified or how often police are indicted, or convicted.
But legal experts say that in their experience, police officers are rarely indicted for civil
ian shootings, and convicted even less.
For example, Joseph Roddy, a Chicago attorney who represents the police union there, has represented about 50 police officers involved in shootings in the last three decades.
Five of those officers were indicted and only one was convicted, he said.
Roddy said he does not believe the low conviction rate has anything to do with favoritism from jurors.
"I would equate trying a police case like flipping a coin," he said. "Half the jury loves police of
ficers and half of them do not like police officers, because they got a ticket or their wife got a ticket."
Roddy said he would argue that most pol
ice officers aren't
convicted because the shootings are justified.
"The policemen aren't out there trying to get in a gunfight," he said. "They have a wife and family and kids they are trying to go home to."
But in announcing Mattingly's indictments on Friday, Stengel said that from the first day, he believed the Newby case "sounded like a bad
shooting," especially given the placement of the shots, which he did not elaborate upon.
"This one we felt strongly about," he said.
Still, Stengel agreed with the experts that it's always tough to successfully prosecute police officers, regardless of the type of case.
"It's more difficult than prosecuting the average Joe," he said. "People, I think, just normally think of them in terms of (being
) law-abiding citizens. It's a hurdle."
Local prosecutors have had mixed results when their case involves a law-enforcement official. <
br>
Last year, for examp
le, they did win convictions in a case that amounted to one
of the largest police-corruption cases in Jefferson County history.
Mark Watson, a former narcotics detective, is serving a 20-year sentence after pleading guilty to 299 felony counts in January 2003, including burglary, theft and using photocopied judges' signatures to create bogus search warrants. His former police partner, Christie Richardson, is serving five y
ears on probation.
But a former Jefferson County corrections officer, Timothy Barnes, was found innocent in October 2002 of murdering Adrian Reynolds, an inmate in the Jefferson County Jail.
And, in the case seen as most similar to the Mattingly indictment, a white Jefferson County police officer who fatally shot an unarmed and fleeing black teenager in 1989 was not indicted.
Two grand juries declined to indict Larry Bush, a former Jefferson County police officer who killed 17-year-old John "Jay" Lewis durin
g a robbery stakeout.
A
ngry community members at the time theorized that grand jurors symp
athized with Bush because he was a police officer. Bush had said he shot Lewis when Lewis put his hands up to his chest.
http://www.courier-journal.com/localnews/2...0307-10565.html
Convicting police called uphill fight
Experts consider possible factors in Mattingly case
--------------------------------------------------------------------------------
By JASON RILEY
jriley@courier-journal.com
The Courier-Journal
Prosecutors cleared a major hurdle Friday with the murder indictment of Louisville Metro Police Detective McKenzie G. Mattingly, who shot and killed a fleeing 19-year-old suspect in the back in January.
But the hard part is still to come, according to legal
experts, who say that while winning an indictment against a police officer in a shooting case is rare, getting a conviction is even more difficult.
"They are mostly acquitted," said Geoffr
ey A
lpert, a professor of criminology at the Universit
y of South Carolina specializing in studying police use of deadly force. "It's his job to have a gun. It's his job to enforce the law, and if he makes a mistake, it's more likely" to end up as a civil case than a criminal one.
Mattingly's attorney will most likely argue that the detective shot Michael Newby because he felt threatened, Alpert said --and if jurors believe that, it is unlikely they will convict him. In addition, police officers generally have instant credibility with jurors and are often given the benefit of the doubt, other experts say.
"Juries have a natural sympathy for police officers," said Sam Walker, a criminal justice professor at the University of Nebraska at Omaha. "Ther
e is an ingrained bias."
One mitigating factor in the Newby case, the experts said, is the racially charged climate surrounding it; the seventh fatal shooting of an African-American man
by
Louisville o
r metro police since 1998 escalated emotions.
None of the officers in the other si
x shootings was indicted.
For that reason, picking an unbiased jury may be a challenge, experts said.
"The citizens are going to be questioning the police and police practices because of past behavior of other officers," said Tod Burke, a former Maryland police officer and now a professor of criminal justice at Radford University in Virginia. "The fact that there's a history (of this), the public may feel that something's got to be done."
"The officer is in a very, very bad situation," he said, adding that Mattingly's attorney, Steve Schroering, should immediately ask for a change of venue outside of the Louisville media area.
Schroer
ing declined to comment for this story.
Mattingly could not be reached for comment yesterday, but a new posting on a Web site formed in support of Mattingly --www.savemckenzie.com --w
as sign
ed "Love, McKen
zie," and thanks citizens for supporting him.
"By now, most of you have seen the news or spoken to someone about my
indictment (Friday)," the posting said. "These are dark hours but we will shine through! We are holding up as best as can be expected. Now, more than ever, your support and prayers are needed. We are not sure of the future but comfortable in the fact that things will be okay in the end."
A question of threat
Police Chief Robert White has said that Mattingly and Newby were struggling over Mattingly's service handgun when the weapon discharged during an attempted undercover drug buy just outside a liquor store and grocery near 46th and Market streets on Jan. 3.
Newby ran, and Mattingly fired his gun four times,
striking Newby three times in the back. Police said drugs were found on Newby's body and a .45-caliber gun was in his waistband.
"If there were no gun and the guy was
just runnin
g away and the officer shot
him in the back," a conviction would be more certain, Alpert said. "But that's because there is no threat. Here, there is a potential of a threat.
"To me thats the bottom line," he added. "If the officer had any kind of an inkling that this kid was a threat and thought he turned (back toward Mattingly) or had his hand on his waist about to turn, chances are they are not going to get a conviction."
Under Kentucky law, a person is allowed to use deadly force in order to prevent death or serious injury from another.
However, "If it's portrayed as (Newby) was running with his hands out to his side and the officer was never threatened," Alpert predicted, "they'll convict."
Prosecutors in Common
wealth's Attorney Dave Stengel's office would not discuss specifics of the case, and police have not said whether Mattingly knew Newby had a gun.
Mattingly told
his side of th
e story to a Jefferson County grand
jury on Friday, but proceedings are secret. The jurors indicted the officer on charges of murder and wanton endangerment, the latter for allegedly endangering the lives of five people who were nearby when he fired his weapon. He will be a
rraigned tomorrow.
Hard to track cases
Statistics on the number of people fatally shot by police in the United States and the number of times police are judged to have used excessive force, as well as percentages of police convictions in fatal shootings are difficult to find.
A New York Times story a few years ago noted that no comprehensive accounting for the nation's entire 17,000 police departments exists.
And according to the Bureau of Justice Statistics, the annual number of nonjustifiable homicides by police
in the United States is unknown, because homicide reports tracked in an FBI database do not differentiate between murders by police and by civilians.
This lack
of statistics make
s it difficult to draw meaningful conclusio
ns on the number of fatal police shootings, the racial makeup of the shootings, how many are justified or how often police are indicted, or convicted.
But legal experts say that in their experience, police officers are rarely indicted for civil
ian shootings, and convicted even less.
For example, Joseph Roddy, a Chicago attorney who represents the police union there, has represented about 50 police officers involved in shootings in the last three decades.
Five of those officers were indicted and only one was convicted, he said.
Roddy said he does not believe the low conviction rate has anything to do with favoritism from jurors.
"I would equate trying a police case like flipping a coin," he said. "Half the jury loves police of
ficers and half of them do not like police officers, because they got a ticket or their wife got a ticket."
Roddy said he would argue that most pol
ice officers aren't
convicted because the shootings are justified.
"The policemen aren't out there trying to get in a gunfight," he said. "They have a wife and family and kids they are trying to go home to."
But in announcing Mattingly's indictments on Friday, Stengel said that from the first day, he believed the Newby case "sounded like a bad
shooting," especially given the placement of the shots, which he did not elaborate upon.
"This one we felt strongly about," he said.
Still, Stengel agreed with the experts that it's always tough to successfully prosecute police officers, regardless of the type of case.
"It's more difficult than prosecuting the average Joe," he said. "People, I think, just normally think of them in terms of (being
) law-abiding citizens. It's a hurdle."
Local prosecutors have had mixed results when their case involves a law-enforcement official. <
br>
Last year, for examp
le, they did win convictions in a case that amounted to one
of the largest police-corruption cases in Jefferson County history.
Mark Watson, a former narcotics detective, is serving a 20-year sentence after pleading guilty to 299 felony counts in January 2003, including burglary, theft and using photocopied judges' signatures to create bogus search warrants. His former police partner, Christie Richardson, is serving five y
ears on probation.
But a former Jefferson County corrections officer, Timothy Barnes, was found innocent in October 2002 of murdering Adrian Reynolds, an inmate in the Jefferson County Jail.
And, in the case seen as most similar to the Mattingly indictment, a white Jefferson County police officer who fatally shot an unarmed and fleeing black teenager in 1989 was not indicted.
Two grand juries declined to indict Larry Bush, a former Jefferson County police officer who killed 17-year-old John "Jay" Lewis durin
g a robbery stakeout.
A
ngry community members at the time theorized that grand jurors symp
athized with Bush because he was a police officer. Bush had said he shot Lewis when Lewis put his hands up to his chest.