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 of others.

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 Angeles.

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 guilty.

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 isn't broken.