海角大神

In police shootings, should trials re-examine a victim's past?

Defense lawyers often introduce a victim's history during trial. Critics say that in cases of police violence, it can unfairly traumatize surviving family members.

One day in July 2013, as Jermaine McBean walked through his Florida apartment complex carrying what later turned out to be an unloaded air rifle, sheriff鈥檚 deputies shouted to drop his weapon.

When Mr. McBean, who was African American, ignored their commands, , one deputy fired, killing the computer engineer.

After the Broward County deputy, Peter Peraza, was indicted by a grand jury on a felony manslaughter charge, his lawyers argued that McBean鈥檚 history of mental health issues had and pushed to subpoena his health records.

For his family, who has filed a wrongful death suit against the sheriff鈥檚 office, the focus on McBean鈥檚 mental health was traumatic, their lawyer says. But that focus, which some say can be an attempt to discredit a crime victim, runs through several cases of police violence, raising a larger ethical question: when does a victim鈥檚 past become relevant?

鈥淚 think generally speaking, for a criminal defendant, what鈥檚 at stake for him is a lot more than his job, so we have to have rules and processes that help them present a meaningful defense. But on the other side 鈥�there shouldn鈥檛 be mechanisms for attacking the reputation of a victim unless there鈥檚 some legal reason for doing that,鈥� says Bruce Boyer, a law professor at Loyola University Chicago.

Victim blaming or legal strategy?

On Wednesday, similar concerns enveloped an investigation into the death of Alton Sterling, who was shot by two police officers outside a convenience store in Baton Rouge, La., last week.

Mr. Sterling, who was killed while selling CDs outside the store, had what described as an 鈥渆erily similar鈥� encounter with police in 2009, according to a police report from the time.

Last week, his , questioning how media outlets had depicted him in the wake of his death.

鈥淩egardless if you knew him or not, he is not what the mass media is making him out to be,鈥� said Quinyetta McMillion, the mother of Mr. Sterling鈥檚 oldest son. "This is a play to try and聽obscure聽the image of a man who simply tried to earn a living to take care of his children.鈥�

David Schoen, who is representing McBean鈥檚 family in their civil wrongful death suit against the Broward sheriff鈥檚 office, says that for defense lawyers, such portrayals can be a calculated effort.

鈥淚t鈥檚 a particular strategy in all of these police cases. The strategy is to try to sort of manipulate public opinion by showing that the guy had a previous criminal record,鈥� he tells 海角大神.

But that strategy is also a key part of a defense lawyer's job, says Tamar Birckhead, a visiting professor at Yale Law School.

"Although the victim's family and others may view certain defense strategies as an unfair attempt to blame or discredit the victim, the defense lawyers are merely fulfilling their professional role," she writes in an email to the Monitor. "They should, however, consider whether the introduction of the evidence is a good strategic decision, as it may hurt the defense if the jury views the information as not relevant or as a 'sleazy' move."

'It doesn't matter if he came right off the set of 'One Flew Over the Cuckoo's Nest' '

Professor Boyer, who directs Loyola鈥檚 Civitas Child Law Clinic, argues those strategies raise additional concerns when defense attorneys are digging into juvenile records, which are .

In Chicago, Jason Van Dyke, a police officer facing first-degree murder charges for shooting 17-year-old Laquan McDonald, is requesting Laquan's juvenile records, which as a ward of the state, according to the Chicago Tribune.

His attorneys have sought to establish that Officer Van Dyke feared for his life when he shot Laquan 16 times only seconds after arriving in a police car, in an incident captured by a dashboard video camera. They say Laquan ignored repeated commands to drop a knife he was holding.

In the video, which was delayed from release for over a year, he is shown quickly walking away from officers as Van Dyke opens fire.

As the officer had no prior knowledge of Laquan鈥檚 background, Mr. Schoen argues, the records of Laquan鈥檚 past aren鈥檛 relevant as Van Dyke鈥檚 case goes to trial.

鈥淎s I say about Jermaine鈥檚 case, it doesn鈥檛 matter if he came right off the set of 鈥極ne Flew Over the Cuckoo鈥檚 Nest,鈥� [or] if he were Charles Manson, you don鈥檛 have the right to shoot someone because in the past they鈥檝e had mental health problems, you don鈥檛 have the right to shoot someone because they were bipolar,鈥� he says.

Presenting information that weighs on a victim鈥檚 character can also be a thorny proposition from a legal standpoint.

Generally, introducing evidence about the character or character traits of either a defendant or a victim in order to prove that the person acted according to that trait during a particular incident, says Viktoria Kristiansson, an attorney-advisor at AEquitas, a Washington, DC-based organization that trains prosecutors in handling cases of sexual violence.

鈥淎 lot of the times this is confusing for the public because they鈥檙e used to watching shows like 鈥楲aw and Order鈥� and 鈥楥SI.鈥� where 鈥� through the magic of scripted television 鈥� character evidence about traits ends up coming in [to a trial]鈥� she tells the Monitor, though she notes that there are some exceptions.

In cases of sexual assault, attempts to introduce evidence that discredits a victim are often more strictly prohibited by so-called rape shield laws, Ms. Kristiansson adds.

Changing practices

In the case of Jerome McBean in Florida, the stakes of including this information could be high.

When a judge granted access to the records in January, the defense engaged a psychologist to testify at his criminal hearing. Deputy Peraza鈥檚 defense argues that his under Florida鈥檚 Stand Your Ground law.

The psychologist to a 鈥渢icking time bomb,"聽according to local news station WPLG.

But his brother, Andrew McBean, questioned whether his diagnosis of bipolar disorder, controlled with medication, could be used to justify Peraza鈥檚 actions.

鈥淚s it a crime to be bipolar?鈥� he asked, WPLG reports.

In many cases, prosecutors often function as gatekeepers of the evidence that is included about a crime victim, says Kristiansson, a former prosecutor.

But she adds, with the growth of victims鈥� rights laws and other protections, 鈥淚 think practices are starting to catch up a little bit to laws that are already in place.鈥�

Boyer, the Chicago law professor, says Laquan McDonald鈥檚 death is one in a long line of cases that have come to represent the fractured relationship between law enforcement and politicians on one side and the city鈥檚 black residents on the other.

鈥淭he issue may be an old one, but I do think the stakes have changed because of all the attention that鈥檚 been focused on the relationships between police and minority communities,鈥� he says. 鈥淲e have to have systems in place that are willing look critically at the facts of a case, regardless of who is responsible.鈥�