No Justice For Rekia Boyd, Either

by Belle Waring on April 28, 2015

I had been planning to write this post in part about the killing of Freddie Gray in Baltimore before rioting broke out there. My mom was in Baltimore on Monday, actually, at Johns Hopkins; I talked to her and my sister and aunt in the morning. Goddamn. Then I thought I would post about a number of killings of unarmed black citizens by police and this one case in particular was so messed up that my post got too long, so I’ll leave it here for the moment. On Monday the 20th, Chicago police officer Dante Servin was found not guilty of all charges in a directed verdict from a bench trial for the fatal shooting of 22-year old Rekia Boyd. He was charged with involuntary manslaughter, reckless discharge of a firearm, and reckless conduct after shooting two people, one fatally, on March 21 of 2012. Servin lives near a park where people often gather at night and hang out. He had called in a noise complaint to 911 and then went out in his car (passing by on his way from getting food in one account, though this wasn’t clear, since most other articles discuss him putting his trash out (which involves one’s car in Chicago?!). They were right behind his house, it seems, and it’s a pity that, as lead detective on the case Officer Ed Heerdt said, Servin did have cameras mounted on his home but “he told me the system was inoperable and I was satisfied with that.” [So you didn’t check, then, or anything? Ah.] He took with him an unregistered 9mm handgun, and drove by slowly telling people to keep it down.

A bystander, Antonio Cross, who was on the phone with his cousin, says that he thought Servin was trying to buy drugs and said “f$%k you.” The cousin confirms this. Then Servin, thinking the phone in Cross’s hand was a gun, pulled out his weapon and fired over his shoulder into a group of people, shooting Cross in the hand and Rekia Boyd in the head. By this description people mean, I take it, that Servin was sitting in the car with the window down, drew the gun and fired over his left shoulder, turning around in the seat. He claimed via lawyers to have felt something “touch the back of his head”–i.e. his contention is that Cross put the phone there pretending it was a gun, just to scare him. Maybe that’s his contention? He also claimed (via others) that Cross merely “waved” the phone in such a way as to make it look like a menacing gun. The defence also, separately and quite at cross-purposes, argued that Cross’s cousin thought he heard 8-12 shots, while Servin only shot five times–so they muttered darkly about an undiscovered gun. (I think it is otiose for me to say no gun other than Servin’s was ever recovered at the scene.) The thing is, there sort of would have been shells, too, and places that got hit by bullets, and stuff like that. And if there had in fact been a gun barrel touching Servin’s head and then the gun were fired the results would have been noticeable. Well, when I say the defence said this and the defence said that, they didn’t have to work too hard, because this was a directed verdict from a bench trial. The judge (no jury) just stopped it right there after the witnesses had testified, said not guilty, and sent Officer Servin (yeah, he’s been a cop this whole time) home a free man. Why wasn’t it a jury trial? Apparently the accused can choose a trial before a judge. And what a prince of a guy Judge Porter is, because this is a totally reasonable thing to say to a grieving family:

Porter handed down the verdict Monday afternoon amid heavy security in his courtroom, but not before asking anyone who might become emotional to leave. [emphasis mine–Belle] “I know this case has generated a lot of emotion … but this is a court of law, not a court of emotion,” Porter said before issuing a long ruling. “You want me to be quiet?! This m—–f—– killed my sister!” brother Martinez Sutton yelled through tears. Relatives circled Sutton and held him back as sheriff’s deputies moved Boyd’s supporters into the hallway and outside.

Why wasn’t a dude who is obviously guilty of some kind of crime–seriously, we must have fifty different words in American for negligent homicide via firing an unregistered handgun wildly–found guilty of any crime? Because the prosecutors charged him with crimes less serious than the one he committed. Yep, you read that right.

Porter said that while he had no doubt Servin shot Boyd, he didn’t think prosecutors adequately proved that Servin acted recklessly [em. mine] — one of the requirements for finding someone guilty of manslaughter.
“It is easy to say, ‘Of course [Servin] was reckless. He intentionally shot in the direction of a group of people on the sidewalk. That is really dangerous. … Case closed,'” Porter said. “It is easy to think that way, but it is wrong. It ignores the law on this subject.”
Porter pointed to a history of Illinois court rulings that say: When someone intends to fire a gun, points toward his victim and shoots — much like Servin did on March 21, 2012 — that behavior is not reckless.

Just so we’re clear, the judge seems to think Servin is guilty of murder, but additionally that because he’s guilty of murder, he can’t be found guilty of a lesser charge. IANAL, but I know this is not how “pleading down” works, for example. This isn’t charging someone with the wrong category of crime, like charging bank robbers with forgery. This is just trying to prove that someone manifestly guilty of–not 1st degree because not premeditated, so whatever is next–murder in the 2nd degree let’s say, can also be proven guilty of a lesser crime, the criteria for which are all much easier to satisfy. THIS MAKES NO SENSE. It is explained by AL here. He says directed verdicts of this kind are unusual but not unknown. He summarises it as saying, the prosecution charged Servin with firing recklessly, but they never proved he did; quite to the contrary he seems to have fired deliberately, and hit the person whom he meant to hit, so the prosecution fails. THIS MAKES NO SENSE.

OK, in the ordinary way of things, if I am charged with involuntary manslaughter, can I arrange to be found not guilty by confessing to murder? If I am charged with recklessly discharging a firearm, can I get out of it by explaining I was carefully targeting someone? If I pull off either of these two tricks, am I also now protected against any future charges by rules against double jeopardy, or can the prosecutors come back at me with murder charges?

What kind of testimony did they hear, I wonder? I hope it wasn’t a bunch of bullshit hearsay cooked up right before the trial!

The final witness Monday was Shurecca Baymon, a patient care coordinator with Mt. Sinai Hospital. Baymon testified that she spoke with Boyd’s close friend Ikca Beamon the night of the shooting, as Boyd was on life support. Baymon claims Beamon told her that Cross pretended his phone was a gun and whipped it out “just to spook [Servin].” Beamon said she blamed Cross and his friend for arguing with Servin, and didn’t think it was fair that Boyd had been shot in her head, while Cross was only hit in his hand, according to Baymon. Baymon didn’t report her conversation with Beamon to authorities until after Servin was charged in November 2013. She testified that she assumed police were aware of the situation, and said it wasn’t until Servin was criminally charged that she realized that wasn’t the case.

Is the prohibition against hearsay evidence just something they made up for Law & Order, or is it a real thing? If it’s a real thing, I really don’t at all understand what this is doing here. And this is just sad. Like he thought they were going to help

Cross said he took off running when Servin opened fire, and flagged down a police car. “I told [one of the officers] a white man just shot me,” Cross said, adding that he followed the car back to the scene. “I wanted police to catch the person who shot me.”

Chicago paid out 4.5 million dollars to Rekia Boyd’s family long before they ever brought any charges against Servin, but her family said before-hand they never expected much justice from the courts. Martinez Sutton, Rekia Boyd’s sister, had these heart-breaking words to say before the trial.

Sutton said he was worried that the trial of Servin “is just leading up to disappointment,” explaining that he thinks there’s only a 50/50 change Servin will be convicted. “I don’t like the odds, but we have faith. We’ve got to have faith,” he said. While a conviction wouldn’t bring his sister back, Sutton thinks it can help his family heal. “I think it’ll close one chapter in our life,” he said. “Our mother hasn’t been able to grieve properly yet. The killer of her daughter is still on the streets. … My mom is suffering.” Sutton said he lost a child after heart surgery and “I know the way I felt, but for somebody to just take your child, your loved one, any loved one, that’s probably the hardest thing that you can bear.” “And for the killer to still walk free? If it was me or someone else on the street [that did the shooting], they wouldn’t have a $75,000 bail. I wouldn’t be walking free,” he said. Sutton said his attorney was anticipating a January or February trial start date in Servin’s case.

“I’d be lying if I said after this that Mike Brown is not on my mind. But I hope they do what’s right. I really do. That’s all people are looking for — just a little bit of justice, make me feel like a citizen, make me feel like I belong here, make me feel like we’re equal,” [em. mine] he said.



Jeff R. 04.28.15 at 4:06 pm

I think that hearsay rules are different in bench trials, on the theory that judges are better equipped to take their reliability into account or something like this.

Speaking of Law and Order, I bet that Jack McCoy would be able to argue that the original prosecutor deliberately tanked his case with the undercharge, that therefore Jeopardy never attached, and re-try the guy. Too bad he’s fictio0nal and all.


LizardBreath 04.28.15 at 4:18 pm

I think that hearsay rules are different in bench trials, on the theory that judges are better equipped to take their reliability into account or something like this.

The rules aren’t different, but the judge may enforce them more loosely on the grounds that he believes his judgment is better than that of a juror. I have very limited trial experience, and all civil rather than criminal, but I’ve seen some impressive disregarding of hearsay rules for that reason.


LizardBreath 04.28.15 at 4:30 pm

(Actually, come to think, I know nothing at all about Illinois state law. Maybe the hearsay rules are explicitly different.)


Jozxqk 04.28.15 at 5:26 pm

Don’t know the rule in Illinois, but there’s a hearsay exception for statements made for the purpose of medical diagnosis, on the theory that you have an extremely strong motive to tell the truth to your doc.

Maybe that’s what it comes in under.


Main Street Muse 04.28.15 at 5:38 pm

I don’t know what the hearsay laws are in Illinois – I do know that Chicago cops have a very long history of torture, etc. See Jon Burge for more… noted torturer gets to keep his Chicago police pension, despite being fired for institutionalizing torture as an interrogation method.


LizardBreath 04.28.15 at 5:45 pm

Illinois Rules of Evidence. Scroll down to Rule 803 for hearsay exceptions. I don’t see any peculiar Illinois-only exceptions that would explain the admissibility of Baymon’s testimony, but evidence is really not my area: there could be something I don’t get that explains it.

My initial reaction, though, is that Belle’s right, and it just shouldn’t have been admitted.


parse 04.28.15 at 5:53 pm

I think the DNAinfo mischaracterizes the judge’s opinion in a way that makes it harder to see exactly how he is acting in bad faith.

Porter pointed to a history of Illinois court rulings that say: When someone intends to fire a gun, points toward his victim and shoots — much like Servin did on March 21, 2012 — that behavior is not reckless.

What the decisions Porter cited actually say is that the behavior is not MERELY reckless. The issue in those cases was whether defendants facing homicide charges were entitled to a jury instruction on involuntary manslaughter, which would allow juries to find them guilty on the lesser charges. If I understand the rulings, the courts determined that if you pointed and someone and killed them, it wasn’t necessary to offer the jury the change to say that you were just being reckless.

That certainly doesn’t mean that, in pointing a gun at someone and shooting intentionally, you were not, as a matter of law, acting recklessly. In this case, the person who was shot was not the one the officer claimed to be shooting at.

It may be true that the cases Porter cited do require that the prosecutor offer some evidence of recklessness beyond the mere fact that the cop shot his gun and someone took a bullet. I don’t know if it is true, as Porter’s decision claims, that the prosecutor didn’t offer any evidence of recklessness.

But I don’t think the impression left by the DNAinfo story, that having intentionally fired and hit his target, Severin could not be found to have acted recklessly is accruate.


JDC 04.28.15 at 6:29 pm

could it be the dying declaration exception to hearsay? Is that still a thing?


parse 04.28.15 at 6:38 pm

JDC, the witness (Shurecca Baymon) didn’t testify as to what she heard from the deceased Body but reported what she was allegedly told by Boyd’s close friend Ikca Beamon


JDC 04.28.15 at 6:59 pm

Thanks parse.


Manju 04.28.15 at 7:14 pm

Re: Hearsay

Baymon’s testimony was apparently used to impeach the integrity of Beamon. I’m guessing, for that purpose it’s not actually hearsay…but nonetheless allows the hearsay evidence to he heard.

I don’t know how to untangle that. See item 8:


LizardBreath 04.28.15 at 7:24 pm

Oh, duh. It must have come in as evidence of a prior inconsistent statement (rule 613 at the link) — if Beamon had told an inconsistent story of the relevant events on the stand, Baymon would have been allowed to testify to her having heard Beamon tell a different story (which isn’t hearsay, because Baymon isn’t testifying to what happened, which she only heard about, she is testifying to what Beamon said, which she was present for). I should have figured that out, but I really don’t do this sort of thing at all professionally.


mrearl 04.28.15 at 8:03 pm

Hearsay by definition is offered to “prove the truth” of its content. If it is only offered to prove that it was said, for example to impeach by inconsistency a prior statement of the speaker, it’s not hearsay.


Bloix 04.28.15 at 10:11 pm

“He summarises it as saying, the prosecution charged Servin with firing recklessly, but they never proved he did; quite to the contrary he seems to have fired deliberately, and hit the person whom he meant to hit, so the prosecution fails. THIS MAKES NO SENSE.”

No, it does not make any sense. It makes no sense at all.

“Porter asserts that a defendant who does something intentionally could not have also been reckless, and thus should not be convicted of anything at all. But this distinction between recklessness and intent “really doesn’t make any sense at all,” University of Illinois law professor Marareth Etienne told ThinkProgress…. [A] higher state of mind such as intent “always proves a lower level,” in this case, recklessness…

“This is incredible!” University of Illinois Director of Trial Advocacy J. Steven Beckett said. “It appears to me that a lesser included offense was ignored because the proof of the greater offense was obvious…


Marshall 04.29.15 at 1:19 am

It seems to me parsing the rules of evidence is entirely beside the point: obviously the trial court system is not the right place to address this sort of problem, not alone in Chicago. It’s a mystery to me why the neighborhood folk stay downtown and trash each other instead of heading out. But everywhere, the capitalist state seems not to know anything when the pressure gets high other than to screw the lid down tighter. It could get messy. It seems to me it’s bound to get messy.

Also … whatever is it that so fills the hearts of these individual officers with such rage?? fellow creatures that they are …


Belle Waring 04.29.15 at 2:30 am

Suburbia rather than the justice system is a good answer to the problem of police officers shooting unarmed citizens? Insofar as that’s a remotely reasonable suggestion, which it is not (everyone move away!), it only works if you are white. You can learn this by gleaning the wonderful history of the police in Prince George’s County, MD.


ZM 04.29.15 at 5:41 am

“Suburbia rather than the justice system is a good answer to the problem of police officers shooting unarmed citizens? ”

We do not have this sort of problem in Australia so much. We did have gun reform after the Port Arthur Massacre, but even before then I do not think there was such a high proportion as in the U.S.A even before our gun law reform.

It is difficult to understand the situation in the U.S. that leads to this sort of thing — I guess it is a different sort of culture despite using the English language, and there seems less inequality here although I have never been there. There should be justice — perhaps double jeopardy does not apply if it is a different charge even if the same crime?

is Justice a lady with scales
a stone lady carefully carved
is she a living thing
is she a god in the sky
does she sing?


desipis 04.29.15 at 6:36 am

I just read through the actual ruling.

The key sentence is this (I’ve retyped these quotes from images):

There is no evidence of recklessness that has been presented to this court as a matter of law.

The first paragraph of the analysis section helps clarify this a bit:

It is easy to say, “Of course the defendant was reckless. He intentionally shot in the direction of a group of people on the sidewalk. That is really dangerous. People could be hurt or killed and in fact Rekia Boyd was killed. Case Closed.” It is easy to think that way, but it is wrong. It ignores the law on this subject.

Earlier, the judge provides the legal defintion of recklessness (emphasis mine):

A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that … a [death] will follow; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

Reading this it sounds like the prosecution failed to put forward evidence to prove that Servin had the required mens rea to be guilty. That is, they failed to put forward evidence to show he “consciously disregarded a substantial and unjustifiable risk”. Reading the description of the facts in this post, it appears that it was accepted that Servin intentially shot at Cross. However, it also appears that the prosecution failed to provide evidence (not just an argument), that Servin consciously disregarded the risk that others, such as Boyd, could potentially be hit and killed. The judges comments in his conclusion about how both sides spent considerable time and effort on the justifiability element, so it’s not likely a lack of evidence on that element.

Now, it could be that the prosectution were incompetent or intentially tanked the case by failing to gather and present the evidence. It’s also possible that there just was no evidence to support the fact that Servin knew of and disregarded the risks, and that the prosectution were hoping that the point my go unexamined or to catch Servin out if he took the stand in defence. Given that, as a police officer, Servin would understand the value of remaining silent, it’s not an impossibility that there wasn’t any evidence for the prosecution to use on that point.

I also don’t get the impression that the judge was subtly suggesting that the case should have been filed as murder. I can see how someone might get that impression, given the way the judge covers the basis of how the case would have run under a murder charge. However, I think that was merely to provide clarity on the nuanced point of law. I think to say he suggested that the case should have been filed as a murder charge (let alone that it would have been successful) is a significant misconstruing of the ruling.


Belle Waring 04.29.15 at 6:40 am

Thanks for the link, Bloix. When I posted this last night at midnight after spending two hours on this I was honestly worried I would wake up and find out I looked like a dumbass for grievously and obviously misunderstanding the legal question. But no, here’s Think Progress: “In an opinion that lamented Servin was never charged with the more severe crimes of first- and second-degree murder, Porter suggested he was acquitting Servin and sending him home without any punishment because the involuntary manslaughter charge against him was actually not severe enough [em. mine–Belle].” And from the same article, a quote from University of Illinois Prof Maraneth Etienne:

several adverse consequences…would result if Porter’s understanding of the law prevailed. A defendant charged with involuntary manslaughter could get on the stand and make the very argument Porter now makes: I am not guilty of a crime of recklessness because I did this on purpose. “And by the way my trial has started so double jeopardy. You can’t go back and charge me with an intentional killing.”
Double jeopardy is the constitutional notion that an individual can’t be charged twice for the same offense, and legal experts seemed to agree that double jeopardy means Porter’s ruling can’t be appealed, and that prosecutors from the same jurisdiction can’t file charges a second time around.
The other adverse consequence is that most of the plea deals prosecutors now make with defendants wouldn’t make much sense: A defendant is charged with first-degree murder, for example, but pleads guilty to the lesser offense of involuntary manslaughter. “And that’s done all the time,” said Etienne.

ZM: I swear, sometimes I just don’t know with my beloved home country. [SPOILER ALERT] it’s racism!
Unfortunately one result of the violence of America is that my daughters are afraid of it. Well, Zoë is a big watcher of John Oliver and Jon Stewart and Larry Wilmore, so she is up on the news. She also knows that, for example, everyone in my family has been mugged (me, broken nose; sister at 12, jaw broken in two places, also held up a gunpoint twice in jewellry store robberies (and once more in Italy–her at gunpoint game strong); brother at 15, just roughed up; mom, twice on the street but not violently and she was there for one of the jewellry store incidents (owner was behind on payments to Russian Israeli mobsters). I keep telling her crime is at historic lows etc. but she is convinced it’s not safe to walk the streets of NYC or D.C. Raising my girls in a place of near-perfect physical safety is great and reassuring for me now, but eventually they’ll need to get their shit together for going normal places. They’re like hothouse orchids or something.


Belle Waring 04.29.15 at 6:42 am

Cross-posted, desipis, but a number of legal experts read the opinion in the way I do.


Manju 04.29.15 at 9:43 am

It thought it obvious that the Judge was hellbent on not-convicting the cop. And it seemed the prosecutor was simply being careful by undercharging.

But I first came across this story via Feminste. And, beginning with some commenters there, i noticed a lot of people making seemingly genuine arguments in the other direction: the prosecutor intentionally tanked the case, leaving the Judge with little choice.

For what its worth, I was led here (this guy addresses Bloix link).


Manju 04.29.15 at 9:44 am


Saurs 04.29.15 at 10:27 am

It’s also possible that there just was no evidence to support the fact that Servin knew of and disregarded the risks, and that the prosectution were hoping that the point my go unexamined or to catch Servin out if he took the stand in defence.

As Belle reports, desipis (CT is lousy with Alas trolls), the judge stated quite plainly that the prosecutors proved “beyond a reasonable doubt” that Servin knew what the consequences of his actions would be (bodily harm or death) and that his behavior was “beyond reckless” (which supersedes the involuntary manslaughter requisite that behavior be only “reckless”). In the judge’s estimation, Anita Alvarez and co. were not “hoping that [any] point my [sic] go unexamined,” but rather that they approached this case in a curiously atypical and unorthodox manner and literally ignored their own evidence in bringing up the lesser charges.


Jim Buck 04.29.15 at 10:39 am


LizardBreath 04.29.15 at 12:50 pm

It’s also possible that there just was no evidence to support the fact that Servin knew of and disregarded the risks, and that the prosectution were hoping that the point my go unexamined or to catch Servin out if he took the stand in defence. Given that, as a police officer, Servin would understand the value of remaining silent, it’s not an impossibility that there wasn’t any evidence for the prosecution to use on that point.

A problem with the judge’s claim that there was no evidence to support recklessness, is that what you actually do is some evidence of what your state of mind is while doing it. If you fire your gun in the direction of a group of people, intending to hit one of them, the fact that you’re firing in the general direction of the others is evidence that you are reckless about the possibility of hitting the rest of them. It’s not irrefutable evidence — a defendant could show that he was unaware of the presence of the other people, or I suppose that he was the second coming of Annie Oakley and couldn’t possibly miss what he was aiming at — but it’s not a total absence of evidence on the shooter’s state of mind.


LizardBreath 04.29.15 at 12:54 pm

To put it another way, the evidence showed that Servin intended to kill Cross — that’s what the cases the judge relies on say, that firing a gun at someone is an intentional, not a reckless act. Where the judge went off the rails is that having intended to kill Cross is in no way inconsistent with having been reckless about the possibility of killing Boyd, and Servin’s actions as established at trial are evidence of both states of mind — intention to kill Cross and recklessness as to the possibility of killing anyone else in the group.


Rich Puchalsky 04.29.15 at 1:31 pm

With all due respect to the lawyers here, your legal expertise is worthless from the point of view of justice because the system itself is corrupt. I do accept that legal expertise makes you adept at working the system, which is a useful skill if used in the right direction, but the system will only allow certain outcomes.

Let’s say that Servin intended to kill Cross. He was then shooting to kill a person who was holding a cell phone and had no weapon. It’s hard to say whether this is a crime in America, but it seems like it should be a serious crime. It was also intentional. He killed Boyd in the process of trying to kill an unarmed person.

There really isn’t any useful way of explaining this that doesn’t come down to special immunity for police and to racism. Picking through the legal justifications doesn’t tell anything, because the justifications will be different in the next case and the one after that.


Bloix 04.29.15 at 2:00 pm

#26 – “There really isn’t any useful way of explaining this that doesn’t come down to special immunity for police and to racism.”

Yes. We know that. We are explaining how that special immunity is disguised as due process of law.

“Picking through the legal justifications doesn’t tell anything, because the justifications will be different in the next case and the one after that.”

No, it does tell something. It exposes the racism and special privileges. Unless you are advocating for fighting in the streets, there’s no other way.

#25 – there is an Illinois appellate case that makes your point. People v. Gross, 367 N.E.2d 1028 (Ill. App. Ct. 1977)(degree of intent can be different for the same act with respect to different victims). I think Judge Porter gets around this by reasoning that (absent diminished capacity) shooting into a crowd cannot ever be merely reckless – it must be done with knowledge and intent to cause harm. He is working very hard to find a way to direct a verdict for the defendant.


Layman 04.29.15 at 2:33 pm

This is from 2013, but seems topical.

“So how does it get better? In 1932, it got better because they dealt the cards again and there was a communal logic that said nobody’s going to get left behind. We’re going to figure this out. We’re going to get the banks open. From the depths of that depression a social compact was made between worker, between labour and capital that actually allowed people to have some hope.

We’re either going to do that in some practical way when things get bad enough or we’re going to keep going the way we’re going, at which point there’s going to be enough people standing on the outside of this mess that somebody’s going to pick up a brick, because you know when people get to the end there’s always the brick. I hope we go for the first option but I’m losing faith.”


TM 04.29.15 at 2:44 pm

Why can’t this verdict be appealed? Or did I get this wrong?


LizardBreath 04.29.15 at 2:46 pm


You’re right that picking through the legalities isn’t the primary issue (the hearsay stuff I started talking about was a complete red herring, I just got interested in what was going on, and it’s an area where I get puzzled easily). But there’s a value in picking through the cover stories used to camouflage the special immunities granted to police, and exposing them for what they are.

I think arguments like the one Manju linked in 20 (essentially “The judge had no choice under the technical requirements of Illinois law, this was all a prosecutor’s error”) do a lot to help people who don’t want to admit the underlying realities keep their heads in the sand, and it’s useful to do what can be done to strip away that kind of cover.


Layman 04.29.15 at 2:50 pm

Acquittals are final (in the US) unless you can demonstrate that the outcome was rigged. This outcome does seem rigged, but I don’t know how you’d show that.


someguy88 04.29.15 at 3:00 pm


No. The outcome is utterly demented but Judge’s logic has a certain beauty to it. If the state had argued that Antonio Cross had flashed his sell phone like a gun, which is probably what happened, than he might have been guilty of man slaughter. He would have been recklessly shooting at Antonio Cross. You do not get to throw a grenade into a crowd because I point a gun at you. You do not get to shoot into a crowd over your shoulder, from a moving car, even if you fear for your life. But minus the fear for your life, shooting into a crowd is an intentional act, as a matter of law. Therefore not guilty.

But wait, if the prosecution argues that Antonio Cross flashed his sell phone like a gun, than can we really prove beyond a reasonable shadow of doubt that it was not self defense? (I, say yes, but others might say no.) So, heads I win, and a tails you lose, but my logic is sound.

Also, public sector unions are the best. God’s gift to Democracy.


TM 04.29.15 at 3:01 pm

Layman: I’m confused. Is it really true that lower court acquittals cannot be appealed? It seems counter-intuitive then that a higher court acquittal can be reversed on appeal.


parse 04.29.15 at 3:10 pm

Is there some reason Severin can’t be prosecuted for shooting Cross?


LizardBreath 04.29.15 at 3:13 pm

TM- You can’t appeal a not guilty verdict in a criminal case from the finder of fact (the jury or the trial court judge if there’s no jury), but a higher appellate court can reverse an intermediate appellate court, because the intermediate appellate court isn’t the finder of fact, they’re just applying law to the facts found in the trial court.

I don’t know, actually, whether a directed verdict for the defense is appealable — my guess is that it isn’t, that it has the same status as a jury verdict — but I could be wrong about that.


Rich Puchalsky 04.29.15 at 3:19 pm

“Unless you are advocating for fighting in the streets, there’s no other way.”

Some people are fighting in the streets. I’m not advocating for it, but historically it is the only real driver of change around race in America. (Depending on whether you count the Civil Rights Movement as “fighting in the streets” or not.)

Simply exposing racism and special privileges doesn’t do anything, because 1) the immediate retort as in #28 is “Yes. We know that”, 2) the racism and special privileges exist because a majority or plurality of the public approve of them. There is no way that a society accidentally builds a police force and justice system that does what ours does. It does what it does because people want it to.

The only real alternative is for the people who maintain the system to give up on it and start to actively work towards a different one. We should take any kind of intermediate advance we can have within the system, but really the entire American system is unjust and should fall.


Marshall 04.29.15 at 3:38 pm

You misunderstand me … I was speaking about the rioters dispersing the riot, not settlers seeking freedom beyond the frontier. I’m not advocating violence in the streets, but collapse of the moral order => collapse of the social order. So far, as in the ’60s, the rioting hasn’t been effective since it’s been directed at that which the society has already rejected as worthless. That could change, and I don’t know why it hasn’t, is all, eg France 1790. Unless you think that modern authority’s superior weaponry is enough to keep the lid screwed down everywhere indefinitely, which maybe, how would I know.

Where is the social will to fix anything, oh logic choppers? What Rich said #26. Everybody here read Ta-nishi Coates?


JimV 04.29.15 at 3:42 pm

As my oft-repeated (in these circumstances) anecdote goes, while driving through Schenectady with a friend who grew up there, we passed a parked police car, and upon seeing who was in it, my friend swore then said, “It’s official. Every bully and punk I knew in high school is now in the SPD.” It seems to me it’s not a job you take if you have done well in school or have had the industry to develop technical skills such as carpentry, auto mechanics, etc.. I don’t think you could (realistically) pay me enough to work as a cop. So I’m guessing (admittedly based on anecdotal evidence and armchair philosophy) that part of the problem is that many of the people who apply for the job shouldn’t be police; but, just as in company management and politics, the people who want the jobs tend to be the ones who get them.


Ronan(rf) 04.29.15 at 4:16 pm

If you believe that a country’s justice system mirrors the society, that a given society’s divisions and preferences have created the justice system in question through a (primarily) bottom up process (state, local and federal laws/policies representing public opinion in a racially/class based society) , then how can you hope for the system to collapse and be replaced by something better unless you are hoping that the alternative is created in a top down fashion by experts and elites ?
If the alternative is to change the majoritys opinion, then exposing the racism and injustice of the system is clearly a plausibly useful step on that path.


Rich Puchalsky 04.29.15 at 4:47 pm

Ronan(rf): “If the alternative is to change the majoritys opinion, then exposing the racism and injustice of the system is clearly a plausibly useful step on that path.”

But that’s not what people are doing, not when the immediate retort is “Yes. We know that.” You can’t have the world-weary attitude that everyone knows and simultaneously pretend that you are educating people or bringing something to light.


bob mcmanus 04.29.15 at 5:29 pm


Manju 04.29.15 at 6:35 pm

TM Why can’t this verdict be appealed? Or did I get this wrong?

Double Jeopardy.


William Meyer 04.29.15 at 6:47 pm

Not to derail the thread, but I would make a more general point around what appears to be the judge’s “motivated logic.” To wit: There is enough law for any judge with sufficient motivation to find any verdict he likes in any case whatever. There appears to be no effective mechanisms to prevent a judge from mangling the law to support any outcome he chooses. We have enormously too much law, and no mandatory “logic” for interpreting it. Too many laws, with no way of establishing precedence when multiple laws apply and overlap obviously equals no law. The fact that no one on the inside of the system addresses this fact–the desperate need for a functional conflict resolution system in America and the absolute disgraceful failure of what passes for one — makes me think law is just a very successful rent-collection scheme for the bar. Full stop.


TM 04.29.15 at 6:47 pm

36: Still can’t believe this. This was a legal interpretation by the judge, not a finding of fact. Why shouldn’t this be appealable?


Manju 04.29.15 at 7:00 pm

TM…The cop was tried and acquitted (by the Judge). So he can’t be tried again for this crime. Nor can prosecutors change the charge (to say Murder -1) and try him again for this crime. That’s Double Jeopardy.

Can prosecutors appeal the Judge’s interpretation of the precedents? I don’t think so but even if they could and even if they win, they can’t charge the cop again for this crime.


jgtheok 04.29.15 at 7:15 pm

Rich @ 37: “It does what it does because people want it to.”

What people want (and conversely, what they are willing to put up with), does change over the decades… Most people I’ve talked with seem rather unhappy over the recent revelations of police misconduct. They were fairly well resigned to the idea that, in certain parts of the country, young black men are permitted to roam about, un-incarcerated. While they find the notion of sharing their local community with a number of armed men who evidently enjoy immunity from prosecution more than a bit worrisome, ethnicity not-withstanding.

File this under “the old whitewash doesn’t stand up to modern information and communication technologies.” Not for the Catholic Church protecting pedophiles, not for the local police departments protecting killers. Reform hardly seems a lost cause. Justice or its absence is seldom the deciding factor, but the ongoing damage to public trust may simply outweigh the cost of admitting and addressing the problem.


Sebastian H 04.29.15 at 7:20 pm

Hmmmm, the double jeopardy angle on this case is interesting. The judges finding of facts are clearly not reviewable, but how does that work with a directed verdict? Criminal Law is so long ago for me but it seems as if a directed verdict is an application of law to the facts finding that even when held in the light most favorable to the prosecution, there is no violation of the law.

It seems to me that the application of the law should be reviewable.

Hmmmm, were is the volokh conspiracy when we need them?


Trader Joe 04.29.15 at 7:23 pm

I can’t help but think that something has changed over the last 20 or so years about how a cop is trained to respond in situations like this that contribute to the apparent rise of “cop kills citizen” instances.

My brother was a cop in the early 90s and tactically, he wouldn’t have approached a gathering such as descibed here without back-up (which would seem to have been the point of the initiall 911 call) and would likely have attempted to disperse the crowd (if that was the goal) via megaphone rather than driving amidst them windows down, but gun at the ready.

I’m happy to give officers some leeway to do their job, but the entire approach here seems ill advised. The officer knew he was going into what he percieved to be an unruly situation without back-up, became trigger happy as a result, with the predictably bad outcome. The papering over of bad decisions with bad justice is ultimately the ribbon on the crap sandwich.

As an ordinary observer, it seems like provocation and confrontation are a more standard part of the playbook than I recall from the 80s and 90s anyway. Maybe its always been thus and we just didn’t hear about it as much, but the police militarism that was discussed surrounding Ferguson seems to be a factor.


Bloix 04.29.15 at 7:24 pm

#36 – double jeopardy law is convoluted and not particularly rational. The Supreme Court has said (in Fong Foo v United States (1962) and again in Evans v Michigan (2013)) that any disposition other than one based on procedural error is final. That includes a judge’s directed verdict, even if the “acquittal was based upon an egregiously erroneous foundation.”

The Evans case was similar to this one. The defendant allegedly set fire to an unoccupied house. Michigan has two arson statutes – one making it a crime to set fire to a dwelling, and one for any kind of building. The reason is that you’re putting lives in danger if you set fire to a dwelling, so the penalties are more severe than for burning a warehouse or barn.

The prosecutors – concerned that an empty house might not legally be a dwelling – charged Evans under the any-building statute (a lesser offense). The judge decided that occupied or not, a house is a dwelling, and that Evans could only be convicted of the crime of burning a dwelling, not of the crime of burning a non-dwelling. He said that Evans should have been charged with the more serious crime, and therefore he directed a verdict for the defendant.

The Michigan appellate courts held that the trial judge was wrong – they said he could be charged under the any-building statute regardless of whether it was a house or not – and then they said that the bar on double jeopardy did not prevent a retrial. The US Supreme Court disagreed, and said that once the trial judge had entered a verdict, even where the judge was obviously wrong, the Constitution bars a retrial.

In Evans, eight justices voted to bar a retrial. Sotomayor wrote the opinion. Only Alito wanted to permit a retrial.

You can read the Evans case here, if you really want to dive into this.


Bloix 04.29.15 at 7:25 pm

This is a response to TM, #45, not #36.


Sebastian H 04.29.15 at 7:27 pm

Thank you Bloix.


Rich Puchalsky 04.29.15 at 7:39 pm

Trader Joe: “I can’t help but think that something has changed over the last 20 or so years about how a cop is trained to respond in situations like this that contribute to the apparent rise of “cop kills citizen” instances.”

I’ve been over this before, but as far as we know, the apparent rise is not a rise. Police have always killed with impunity in America, especially when victims are black. We don’t have good statistics because those statistics are purposefully not collected. But here’s an article with a graph called “Rate of Death by Legal Intervention Involving Guns” which uses CDC data, which I trust a bit more than other data we have. The death rate per million was 8 for black people back in 1970: now it’s somewhere around 3. The death rate per million for white people has remained steady all through that period at around 1.

So there aren’t more shootings, except insofar as the total population has gone up. The rate has been dropping so that now it’s “only” a 3 to 1 disparity between black and white people. The reason that you’re hearing about them more now is because of omnipresent video, not because police are now militarized or badly trained and now shoot more people.


Bloix 04.29.15 at 7:52 pm

#52 – notice that I did not try to explain why this is the rule – why the purpose of the bar on double jeopardy is served by preventing a retrial of a directed verdict. I don’t understand why. I only know that eight justices, including all the liberal ones, agree that it does.


Trader Joe 04.29.15 at 8:00 pm

Thank you Rich.
I suppose its a matter of perception and reporting as much as anything – certainly since Ferguson every instance has had more intense coverage (even if eventual outcomes haven’t gotten any better).

Indeed the insincere might even say “look at all this progress.”


john in california 04.30.15 at 12:26 am

Trader Joe,
If you live in a neighborhood full of people with jobs and cars and mortgages about the only time you will see a policeman is when he is passing through to go somewhere else. When I see a police car I think , “Wonder where he’s going?” not, ” I think I’d better fade..”.
‘Cause I’m white and right now I do live in such a neighborhood, but it ain’t always been so. And when it wasn’t (and this goes back through the sixties ) I saw the police as either indifferent to the dignity of the people they were there ‘to protect and serve” or hostile and contemptuous. Color mattered but also class. It seemed to me that police exerted their authority to the extent they thought the could get away with it. I think they just enjoyed the ability to rough people up, slam them around with impunity. And the fact that they could get away with it , to them, proved that the person being brutalized didn’t deserve respect. He or she obviously hadn’t ‘earned’ it , or they wouldn’t live where they did.
I think if you don’t know this, you haven’t lived in those places.


Trader Joe 04.30.15 at 12:01 pm

@56 john in ca
That’s an awful lot of assuming in 12 lines of text. Enjoy your suburb.


derrida derider 05.01.15 at 1:02 am

Na, Trader Joe, worldwide part of the police force’s job is to enforce class distinctions. Race is one class marker – clearly more reliable in the US than in most western countries. The suburb you live in is another. Your clothing is another. In England your accent was (and perhaps still is). If you doubt it, try wandering around the mean streets of your city in a hoodie.

Your chances of being beaten up, or in the US shot (that awful 2nd Amendment again), by a copper always depended on his judgement of your class.


Jim Buck 05.01.15 at 10:17 am

One hot summer, I worked night duty on an acute psychiatric ward. I had donned shorts and t-shirt because of the heat. I hear a commotion in the Section 136 room (disturbed individuals arrested on the streets by police, and brought for assessment). I entered the room and confronted a burly copper in process of slamming a black female, repeatedly, against a wall. He looked round at me and said: “Fuck off! Unless you want some!”
I went to the staff room, changed into my suit, and then returned to the S136 too. The entirely deferential policeman—victim lain “pacified” in a heap–did not twig that I was the very same person he had snapped at earlier


matt w 05.02.15 at 9:42 pm

One other aspect of this case is that this is not about law enforcement. Servin was off-duty, out of uniform, carrying an unlicensed gun, and not investigating anything that was even remotely resembling a criminal complaint when he started an argument with people in a public place and then shot them as they walked away from him.

This is about letting a cop escape punishment for something he does in his time off because he’s a made man and his victims aren’t made, pure and simple.


Collin Street 05.02.15 at 10:52 pm

> I don’t understand why

Maybe there is no good reason. Maybe the decision is wrong, and your intuition correct.

[as I point out, US jurisprudence is kind of dramatically shaped by the past necessity to find legal justifications for Jim Crow under the text of the progressive US constitution; jurisprudence isn’t something that’s easy to reform, and since there hasn’t been the reforms you’d need, in this respect the US literally has the legal system of an apartheid state. You cannot expect long-standing US jurisprudence to point towards justice, because for generations the biggest pressures facing US judges was the need to avoid justice as much as possible: US jurisprudence is the enemy, not the ally, of justice.]


Bloix 05.04.15 at 12:54 am

#61 – what you’ve written is word salad. The author of Evans v Michigan is Justice Sotomayor. You want to argue that Justice Sotomayor is devoted to enforcing an apartheid state? Good luck.


bt 05.04.15 at 7:27 pm

@39: BINGO.

“It’s official. Every bully and punk I knew in high school is now in the SPD.”


The Temporary Name 05.04.15 at 8:29 pm

Are there people who DON’T have an asshole cop story?


Collin Street 05.04.15 at 9:10 pm

You want to argue that Justice Sotomayor is devoted to enforcing an apartheid state? Good luck.

I just did, didn’t I? Think.

Look, this how systemic racism — systemic whatever, but it’s racism here — works: working within the system gets you racist results because the parts of the system that didn’t give racist results were engineered away. Working in the US legal tradition is working in the tradition of Jim Crow, “indisputable precedents” became such because they empowered private and state racists.

Does Sotomayor realise this? Almost certainly, but it doesn’t mean she can do anything about it; the law, and not her personal choices, is what generates/mandates the racist outcomes here.


TM 05.04.15 at 9:38 pm

Thanks Bloix 50. Unbelievably irrational.


Matt 05.04.15 at 9:51 pm

Are there people who DON’T have an asshole cop story?

If I think about some things I did when I was younger, I could have been a felon multiple times over. But I wasn’t caught. One of the reasons (I presume) is that I don’t “look like” a lawbreaker. White guys with glasses and no dreads, tats, or piercings don’t violate laws. Scientific fact. Black youth crimes are white youth hijinks. Police have generally been helpful and polite to me on the rare occasions that we have interacted.

I still view police with careful wariness, though. I would prefer to keep away from the bees even if I think they probably won’t sting me.

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