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Reasonable bias
For the past year, wrongfully convicted men have paraded out of prisons. Now we’re surprised that jurors are skeptical?
BY DAVID S. BERNSTEIN

THE BOSTON POLICE Department (BPD) is losing city residents’ trust, and knows it. Its own biannual survey of public attitudes about crime and law enforcement shows that by every measure, Bostonians have a significantly worse view of police than they did two years earlier.

The report was not publicly released, but the Phoenix obtained a copy through a public-information request. It’s not good: Bostonians feel less safe in their neighborhoods; have less confidence in the BPD to prevent and to solve crime; see police officers interacting in their neighborhoods less often; rate officers as less fair and respectful, and less able to deal with confrontational situations; are more concerned about use of excessive force by police; and are more likely to feel they were stopped without justification, or because of their race or ethnicity. And things have surely declined since the survey was taken, in the last two months of 2003 — before a man died during a poorly controlled post–Super Bowl celebration; before police killed Victoria Snelgrove with a "less lethal" weapon; before police shot Bert Bowen in the back, wounding him fatally; and before homicides increased by 50 percent while the arrest rate for those crimes dropped in half.

It seems obvious that declining confidence in local law enforcement would go far toward explaining Boston juries’ sudden unwillingness to convict. In particular, a series of wrongful-conviction stories — Shawn Drumgold in November 2003, Stephan Cowans last January, Anthony Powell in March, Laurence Adams in May, and Angel Toro in September — have revealed secret police deals for witness testimony; incompetent forensics labs; flawed identification methods; and dishonest cops. "On the issue of wrongful convictions, there were really systemic issues. The police were part of that," acknowledges Superintendent Paul Joyce, chief of BPD investigations. "It clearly tests the trust of the community."

To address the problems, the BPD began last year to implement a host of reforms. Under Joyce, it is changing investigative procedures, including retraining officers in new eyewitness-identification techniques. Joyce is also overseeing a massive restructuring of the department’s forensics teams. Police Commissioner Kathleen O’Toole has just announced her intent to form a much-needed citizen review board. Detectives with bad track records, most notably Daniel Keeler, have been removed from the homicide unit.

Given the BPD’s self-acknowledged need for reform, acquittals in cases requiring trust in the police were probably inevitable. But after the trial of Marquis Nelson and Joseph Cousin for the murder of Trina Persad brought the third acquittal of an accused child-killer this year, Suffolk County district attorney Dan Conley — who says he hasn’t seen the BPD report — blamed the verdict not on shoddy police work, but on five jurors who allegedly lied on their jury questionnaires about past criminal records. "These corrupted jurors helped a killer to go free," Conley said. The Boston Globe followed with a report that the jury was "polarized ... along racial lines." Never mind that the jurors voted unanimously to acquit Nelson, or that jurors who spoke to the Globe said that at least one of the five with a criminal history, a black man, was leaning toward convicting Cousin.

Indeed, the evidence does not suggest that a small number of aggrieved people in the city hold an unreasonable bias against Boston’s law-enforcement personnel. It suggests that people throughout the city — Bostonians of all stripes — hold a very reasonable bias against them.

FAITH IN law-enforcement officials has always been extended cautiously by Boston’s African-American residents. It reached a low point in 1989, when Charles Stuart killed his pregnant wife and told police that a black man had done it. Cops harassed the black men of Mission Hill and ultimately blamed one of them for the murder before the truth came out. It wasn’t just that one incident that stirred resentment, of course; the BPD antagonized the city’s minorities throughout the late 1980s and early ’90s with aggressive, overly broad, anti-gang tactics. "We didn’t really handle that in the best manner possible, and that cost us a lot of community trust," says Joyce. Still, years of community policing and declining violence — and acknowledging that the city’s minorities had some legitimate gripes — helped rebuild trust, says Ralph Martin, the city’s first African-American DA. "I remember when I began my term as DA" in 1992, says Martin. "I acknowledged that at least in some cases, law enforcement and communities of color have had an ambivalent relationship."

Today, those same communities have been strongly touched by recent events; in almost all of Boston’s recent wrongful convictions, the people most affected — the convicted, the victims, the neighborhood residents, the friends and families — have been African-American. Not surprisingly, the BPD survey shows that the opinion of police has fallen faster among African-Americans than among whites. "Unfortunately for a lot of the victims, we are being bombarded with all of these cases of wrongful convictions. People’s lives have been irreversibly altered because of police not doing their jobs thoroughly," says Louis Elisa, a long-time Boston political consultant and former president of the Boston NAACP. That can’t help but be in people’s minds as they serve as jurors, he says. "People say, maybe I want more information now, more questions answered before I convict."

But this time around, the distrust has spread to all parts of the city. And all parts of the city have been affected by police action. Snelgrove was white. William Leyden, a middle-aged white man, was wrongly accused by police of murdering his brother in March 2001. The charges were dropped only last March, after the real killer confessed and directed police to the spot where he had buried the victim’s head.

And Bostonians of all kinds are responding in court. Every recent acquittal came as a unanimous decision by a mixed-race jury; indeed, including the alternates, the Marquis Nelson–Joseph Cousin jury was exactly half white and half black.

Prosecutors tend to regard black potential jurors as more lenient, and tend to use their challenges more often to keep them off juries, experts note. But that is based on myth, not fact, says Thomas Munsterman, principal court-management consultant with the National Center for State Courts, in Williamsburg, Virginia. "I have people saying the exact opposite, that minorities will hold their own to a higher standard," he says. The myths, in both directions, arise inevitably from the frustratingly well-hidden jury-deliberation process, Munsterman says. Ed Schwartz, a Boston researcher and jury consultant, agrees. "Every attempt to verify attorney’s intuition" in jury selection "has shown it to be little better than chance."

In fact, a major study of nearly 3500 jurors published earlier this year by Cornell Law School, in which Munsterman took part, found that African-Americans were neither more nor less likely to vote for conviction than white jurors in criminal trials involving a victim (i.e., excluding drug crimes). "The notion that they are going to be avengers for criminals is absurd," says John Cunha, a veteran Boston defense attorney. Other demographic characteristics are also largely irrelevant, according to the study, including gender, age, job status, and education. Ultimately, the study made the comforting finding that the best predictor of the verdict is the judge’s personal assessment of the strength of the evidence.

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Issue Date: January 7 - 13, 2005
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