The Impunity of Those In Power in the U.S.

The Netflix series, "Making A Murderer," chronicles the case of Steven Avery, who spent 18 years in prison for a crime he didn't commit. DNA evidence, not available at the time of his initial trial cleared him of the charge of sexual assault and attempted murder inflicted on a prominent citizen. Other than his parents and siblings, most Manitowoc residents figured the authorities had nailed the right man.

Upon his exoneration and release, Avery garnered a tremendous amount of publicity and subsequently filed a lawsuit for damages for wrongful imprisonment that targeted not only the state but also police and officers of the court involved in his trial. Usually a litigant in Avery's position, are barred from such action unless it can be demonstrated that the authorities involved in the state's case were guilty of misconduct and acted inappropriately in pursuit of the conviction. In the ten-part TV series, law enforcement targeted by the suit appeared anxious, concerned that they might personally be on the hook for a portion of the $36 million civil law suit sought by Avery and his attorneys. The Netflix series included video recorded depositions that presented the quest by law enforcement to seek a conviction while at times ignoring details that may have resulted in establishing the truth of who actually committed the transgression against the victim, thus removing the guilty party from walking the streets and inflicting further harm to the public. A potential suspect, later proven to be the culprit, was not investigated even though tips had been shared with police and the prosecution team. The failure to conduct a complete and thorough investigation cost an innocent man, eighteen years of his life and allowed the guilty party to harm other victims. Avery and his attorneys were confident that via a civil action, they could prove official misconduct that cost Avery the loss of his liberty.

           Avery failed to heed a warning that he move out of Manitowoc County for his own safety from possible retribution by law enforcement. As chronicled in the series and prior to a final disposition of his legal action, Avery and his nephew, are accused by some of the same individuals involved in his initial bumbled case, of raping and murdering a young woman in her twenties.

That murder case took a bizarre twist when the legal team for the defense insinuated that evidence was planted by law enforcement to secure a conviction. The timing of Avery's arrest was also held suspect since it occurred immediately after the depositions that implicated law enforcement malfeasance from his first trial. Avery's defense attorneys and various family members contend that this was no mere coincidence. The government officials and the police counter that they got the right man and bristle at the mere suggestion that Avery, was framed.  

Since the series debuted, over 128,000 have signed a petition asking President Obama to pardon Avery. However, the White House claims that the President is powerless, since it is a state crime, not a federal case.

Dr. Phil devoted an episode to the case, which included viewpoints expressed by law enforcement, advocates for Avery, and the producers of the Netflix series. During the program, Dr. Phil emphasized his utmost respect for the work performed by law enforcement who on a daily basis deal with life and death situations. But, at the conclusion of the show, he delivered a commentary that suggested that the justice system do a better job of upholding the principle of law (established before the U.S. Supreme Court - Coffin v. United States, 156 U.S. 432 - 1895) that one is presumed innocent until   guilt is proved beyond a reasonable doubt.

The very next day, Nightline on ABC presented a special report that reiterated questions addressed in the series. (1) "After spending 18 years in prison, why would a man on the verge of winning a huge seven figure bonanza do anything that might endanger his liberty and return him to prison?" (2) Why were police officers, deposed and being sued by Avery, involved in a search of the accused home when the sheriff, from another county, assigned to the case to insure impartiality, had specifically excluded those officers from any involvement in the investigation?

The Avery property, searched on several occasions, did not yield a key to the murdered victim's RAV4 or a bullet fragment with the victim's blood until two of the officers barred from participation in the investigation somehow thrust themselves on the scene. The inference that evidence was planted elicited the lead prosecutor's public disappointment that such accusations tarnished the reputation of good veteran cops with years of service to the citizens of Manitowoc community. The defense countered that Avery's presumption of innocence was completely ignored and that the prosecution had done their best to taint Stephen as a low-life monster who deserved to be found guilty.

Approximately at the same time the Netflix series debuted, citizens of Chicago clogged downtown streets in protest over the handling of a police shooting that took the life of, Laquan McDonald, a seventeen-year old African-American male. At the time of the incident, a video recorded by the dash camera of a squad car revealed that an officer discharged 16 bullets; a number of shots were fired after the teen was lying face down on the ground and posed no apparent threat to any man or woman in blue on the scene.

The egregious nature of the video angered the public and eventually garnered the scrutiny of the press. At the time of the shooting, the mainstream media did not question the story disseminated by the police department’s spokesperson. The video saw the light of day only after a freelance journalist sued the city for failure to follow the tenets of the freedom of information act.   In light of the fact that over a year had passed since the shooting, a judge refused to accept the city attorneys' contention that the video could not be shared since it was integral to an "on-going investigation." The judge gave the city a deadline of one week to release the video. The judge wisely provided the administration time to prepare for the possibility of civil unrest as experienced in Ferguson and Baltimore after the loss of black life at the hands of police officers.  

When it became clear that other officers at the scene of the gruesome shooting filed reports that affirmed the official version submitted by the officer who discharged his weapon into Laquan, cynics wondered how police could be so brazen knowing that a video clearly contradicted their written statements. Yes, the young man had a knife in his hand but he was walking away from the police, not towards them as attested by the multiple official reports filed by the other officers at the scene.  

Social media criticism not only targeted Rahm Emmanuel, the police commissioner, the shooter, the estranged mother of the slain teen for her concurrence with the city that the video not be shown, but also the mainstream media, guilty of accepting without question the police department's version of events on that fateful night.

A major network owned station took the police to task with a special report that revealed CPD officers scanning and possibly erasing video captured by surveillance cameras at a Burger King (BK) restaurant on the same street as the incident. The manager of the BK cooperated with the officers, under the impression that the surveillance video might be helpful to their investigation. He later provided a sound bite (known in the biz as an SOT) to the media. In the SOT, the manager expresses his utter dismay that police might intentionally want to eliminate evidence by erasing a portion of the recording.

Initially the police denied that any such conduct was committed by their officers only to be further embarrassed when the output of an additional camera pointed at the video capture controls revealed said antics. To add insult to injury, DNAInfo.com Chicago has since reported in a story filed by Mark Konkol and Paul Biasco on Jan. 27, 2016, that, "Maintenance records of the squad car used by Jason Van Dyke, who shot and killed Laquan McDonald, and his partner, Joseph Walsh, show months-long delays for two dash-cam repairs, including a long wait to fix “intentional damage.” That may explain in part as to why the video was initially released without any accompanying audio.

Rahm, city attorneys and the 50 aldermen received reprimands from watchdog groups wondering why a thorough investigation by an independent counsel had not been commissioned prior to the approval of a 5 million dollar settlement for killing the teen. Even that action merited disdain when media pundits characterized it as nothing less than hush money for a mother, estranged from a son - living with other relatives at the time of his death.   Social media criticism of the mother’s pleadings that the video should not be released due to the pain it might cause the family were ridiculed as nothing more than her acquiescence to be silent per directives from the city administration.

Following the uproar, the Black Lives Matter movement and various other community activists demanded that the Police Commissioner and the Mayor resign. In what has become standard operating procedure for the Emmanuel administration, the cries for culpability and accountability were ignored.   However, due to the onslaught of criticism, the very next day Rahm had to backtrack from his original show of support for the CPD Commissioner and per the post of social media memes – “threw him under the bus.” Rahm claimed that the commissioner was tarnished and thus part of the problem, making it impossible for the Mayor to find a resolution to the crisis.

In Chicago, there is no mechanism to recall the Mayor even though thousands took to the streets demanding that the Mayor step down.   Even if a bill were to be introduced by the state legislature or Chicago’s city council, that would permit citizens to recall the mayor, it would undoubtedly have to grandfather the current incumbent. Rahm made it clear via several media appearances that he would not resign under any circumstances.

Protesters also demanded that Anita Alvarez, the Cook County State's Attorney resign.   Some of the moderators of Chicago's radio and TV political and public affairs programs questioned whether Anita purposely dragged her feet on the investigation, protecting Rahm. Had the video been released prior to the Mayoral run-off election, it's anyone's guess as to whether Rahm would have prevailed, but most media commentators concur that securing the win would have become exponentially more difficult.

Rahm Emmanuel's obstinacy may keep him in office but it will be at a price. The demonstrators targeted the trendy Michigan Mile retailers disrupting shopping during the holiday season and impacting their bottom line. That will come back to haunt the Mayor because those in the elite don't forgive loss of revenue for someone's inept performance.

Mayor Emmanuel's breakfast on the MLK holiday was snubbed by many of the ministers serving the African-American community, including the venerable Father Michael Pfleger (a Rahm supporter at one time) who rubbed elbows with film director Spike Lee, on location in Chicago making, CHIRAQ. The Mayor publicly shared his disappointment with Lee’s choice of title. The film chronicles the senseless gun violence that distinguishes Chicago as one of the most violent cities in America. Spike Lee joined Father Pfleger and protestors that filled the streets of Chicago’s Loop tired of another black life gunned down by the police.

No matter how one might feel about the second trial and conviction of Stephan Avery, there is no doubt that the officers and the prosecuting attorneys failed him on his first go around. They had ample opportunity to follow up on clues that could have lead them to the truth and ultimately the conviction of the actual perpetrator.   No matter how one might feel about the supposition that black and/or blue lives matter, there is little doubt that in Chicago, the lack of transparency regarding police shootings generated mistrust of the Mayor, his administration and the CPD. Besides the Laquan McDonald case, other videos have since surfaced that show police using deadly force that again conflicts with official written reports by those in blue.

Video recordings captured on 21st century smart phones and dash-cams have rocked law enforcement in a way never before realized. It was smart phone technology that exposed the abhorent case of Walter Scott, a black man fatally shot by Michael Slager, a white North Charleston police officer. Initially the citizen who recorded the deadly exchange feared possible retribution and thus was reluctant to bring the video forward.   However, Slager's bogus police report, blaming Scott as a threat to the officer’s safety, incensed the citizen to go public with the video. The video contradicted Slager’s official report and lead to his arrest and dismissal from the force. Slager faces a charge of murder and faces trial on October 31 of 2016.  

Slager excused his use of deadly force by citing a common concern often used by police officers – “fear for their personal safety.”   In order to make the crime scene favorable to Slager’s version of events, he planted his Taser next to Scott's lifeless body, an action that critics viewed as despicable. Another officer, on the scene, corroborated Slager's account, thus insuring his partner’s impunity…or so he thought.

The size of the city mattered little in how the police conducted themselves in the McDonald and Scott shootings. Without the advent of video revealing the truth, the lies of the officers in both locales were accepted initially as gospel. The veracity of a police officer's sworn testimony has always carried a great deal of weight in any court of law. That may change with time but there is an inequity that needs to be addressed and corrected. It is a felony to lie to a police officer, but law enforcement can legally be less than forthright in pursuit of a confession. "Probable cause" allows police the ability to conduct a search without a warrant and there is little recourse that a citizen can take to offset that kind of action no matter how small or big the locale.

In 2006, on a bitterly cold December night at approximately 3:15 a.m., the police swat team of the Village of Downers Grove, Illinois (known officially as the DuPage County Felony Investigative Assistance Team (FIAT) Swat unit) descended on a home on Lake Avenue, a cul-de-sac. Using their flashlights, members of the team pounded on windows waking up the man of the house. The resident, concerned that possibly the police were there to alert the neighborhood of a gas leak, emerged in his bathrobe half-asleep. Blinded by squad car spotlights, he found himself confronted by a number of officers toting shot guns and assault rifles, demanding that he put his hands up, drop to his knees and crawl backwards on freezing concrete. The man complied regarding the hands and turning his back to them, but refused to crawl backwards and demanded an explanation.             The police scampered onto the porch, cuffed the citizen, which they called by his surname and then placed him in a squad car without explanation as to why he was being detained. A Sergeant, senior in rank and age, began to question the resident who refused to answer any questions until the police revealed their intent. The citizen told the Sergeant that the raid was a grave mistake. The shackled citizen demanded that without a search warrant, no officer could legally enter his home. To no avail, the cuffed individual asked again why he was being detained. The Sergeant ignored the request. He instructed an underling to place the man in the back of a squad car.

While in the car, the citizen was able to read an on-board computer that spelled out why the cops had targeted the home. Someone had called the police with an erroneous report that shots had been fired in the home emitting white flashes. That someone, was supposedly a neighbor, who had on the call, agreed to meet the police when they arrived on Lake Avenue. However, the neighbor failed to appear. Without the witness, the police had no way of verifying the legitimacy of the call that had a Florida area code, but decided to conduct the raid without confirmation. The Sergeant attempted to question his captive again, surprised that the citizen now somehow knew all of the particulars. In the mind of the citizen, he was dealing with a force that could only be described as Keystone Cops, a denigrating reference to the inept cops portrayed in Mack Sennet movies.  

The police ignored the citizen's call for a search warrant and entered the home through the rear door out of the sight of their captive.   They pounded on the back door, waking up the son who was also half-asleep. Upon opening the storm door, thinking that his father may have locked himself out, the son was shocked to find a gun pointed at his head. The impressionable teen, only 15 at the time, did as he was told. Extricated from the doorway, wearing only a T-shirt and boxers, the boy was cuffed and forced to kneel on an icy driveway.

After 45 minutes of investigating the matter and conducting an illegal search of the home for a weapon, it was clear to the Downers Grove swat team that they had mistakenly targeted an innocent man and his son based on a fake phone call. However, no apology was ever tendered by the officers at the scene or by the Chief of Police.

A detective assigned to the case continued to cite probable cause as justification for the search and for putting both residents in harm’s way. The detective, in concert with the attorney for Downers Grove (D.G.), noted that the police report would not be available to the citizen who had dared to consider suing the swat team members and the Village. The citizen exercised his right to the documents by filing a FOIA - freedom of information act. However, it took over 9 months of prodding the police, and the Village before the citizen actually received the documents.   The police and the Village used the excuse of an “on-going investigation,” to deny dissemination of the material. That same premise was used by the city of Chicago to delay (for over a year) the release of the video in the Laquan McDonald shooting.  

When the D.G. citizen appealed to the Attorney General's office in the hopes that they might enforce his FOIA request, he found an office that lacked, in his opinion, the resolve and political will to make the Village and the police comply.      

In the case of the D.G. white male and his son, it's not a stretch, based on the climate in America and interaction between blacks and white police officers, to conjecture that had they been African-Americans, they might have been shot. The citizen’s initial suspicion, which he shared with police that night, had indeed proved to be true.

It was the neighbor to the east who made the fictitious call using his father-in-law’s cell phone, hence the Florida area code. That same neighbor pledged to meet the police upon their arrival, but did not. What should have been a felony was dropped to a misdemeanor.   The police never gave the victims notice of their arrest or the subsequent appearance of the miscreant before a judge until after the case had been adjudicated.

How can prosecution teams pursue conviction knowing they may have the wrong party? How can police file reports regarding deadly force that are patently false? How can swat team officers initiate a botched raid trampling 4th amendment rights without confirmation that a phone call initiating their action had merit? How can a city or village administration, in concert with their legal department, deny the disposition of FOIA requests by using the lame excuse of an "on-going investigation" that lingers for months on end or even surpasses a year?

All of these questions can be answered with one word - IMPUNITY. The definition of "impunity" is exemption from punishment or freedom from the injurious consequences of an action.  

The fact that attorneys for the Emmanuel administration fought vigorously the FOIA request was a clear indication to citizens and press that Rahm may preach transparency but pulls out all the stops when he wants to avoid practicing it. In the case of the Laquan McDonald shooting, Chicagoans are not only upset by the delay but tender suspicion that the Mayor and the State's Attorney deliberately delayed the release of that video till after Rahm defeated his opponent, Chuy Garcia, in a run-off election that was in and of itself an embarrassment to Emmanuel.

But IMPUNITY does carry a price. States Attorney Anita Alvarez lost her bid to win the Democratic primary, which in Chicago is the race that counts. Chicagoans definitively turned Alvarez out with a 300,000-vote margin against her. Rahm Emmanuel will not resign but his star has diminished and short of a miracle, he will fail should he run again. Karma is a bitch!