Certainly there should be a single (stringent) standard of constitutional rights for police and civilians. And part of that standard should be strict protection for the presumption of innocence. In this regard, there is a dilemma built into the police officer’s job. Intrinsic to police work is the threat of or use of force in an adversarial situation. When force is used, there will often be disagreement about whether it was needed. And inevitably there will be times when unnecessary force is used: Even without such aggravating factors as racism and the paramilitary mentality encouraged by the Giuliani administration, the police will make terrible mistakes–whether out of tragic but reasonable miscalculation, carelessness, panic, poor training, or temperamental unfitness for the job that should have been caught but wasn’t. After the fact, sorting out accident from negligence from deliberate brutality can be difficult and sometimes impossible. And when people are furious because an innocent person has been killed or hurt, the tendency is to want the cop’s head and to not make too many fine distinctions. The pressure this anger puts on prosecutors and juries, especially if the incident becomes a public issue, is a threat to the presumption of innocence. A lot of people are absolutely convinced that the policemen who shot Diallo are murderers. My view is, let’s have the trial before the verdict. And in the meantime, let’s focus on the larger issues posed by the Diallo case–the war against civil liberties that’s been going on in the name of fighting crime, the practice of racial profiling, and so on.
On the question of whether cops–or all of us, on single-standard grounds–should have the right to be tried before a judge rather than a jury, the issue is whether trial by jury should be construed solely as a right of the defendant, or whether the community has a right to sit in judgment of an offender. I’m leery of the latter view. Civil liberties belong to individuals precisely to protect them against the power of communities. We recognize that at times a community is not going to be able to produce an impartial jury; that’s what change of venue is about. I think defendants (police or civilians) at least need the option of being tried by a judge in situations where they can show that local juries are likely to have a lynch-mob mentality; and I would lean toward making this an automatic right.
