Special Treatment for Police and Military: Where Do We Draw The Line?

by Katherine Scardino

Houston is, once again, the location of a highly publicized trial involving police officers. Bellaire Police Sergeant Jeff Cotton was charged with aggravated assault here in Harris County in connection with an incident that occurred in 2008. At around 2 a.m. on December 31, 2008, Robbie Tolan, 23, and his cousin, Anthony Cooper, were returning to their home in upscale Bellaire after enjoying a late night run to Jack-in-the-Box. When the two young men pulled into their driveway, they got out and found themselves confronted by police, guns drawn.

Police, who suspected the boys of driving a stolen vehicle, ordered them to the ground. Robbie and Anthony claim they didn't know what was going on, or why they were being held at gunpoint in their own driveway. This is probably because they weren't driving a stolen vehicle. The office who initially ran their license plate allegedly mistyped the numbers, which is why the vehicle came back as stolen, when in fact it was not.

Hearing the commotion, Robbie Tolan’s parents came outside to see what was going on in their driveway. There was an altercation between the police and Robbie Tolan’s parents, and his mother was shoved against the garage door. Robbie began to rise from the ground to ask the officers what they were doing to his mother. That is when Sergeant Jeff Cotton fired three shots at Robbie, one of them hitting him in the chest, leaving a bullet lodged in his liver. The shooting occurred within 32 seconds after Sgt. Cotton pulled into the Tolan driveway.

Two weeks ago a Harris County jury heard testimony from Officer Cotton, who claimed that he saw Tolan reaching for what could have been a gun. Another Houston Police Department officer testified that Officer Cotton acted in accordance with his training.

The jury acquitted Sergeant Cotton.

The local television stations called me to ask my opinion about whether there is a bias favoring police officers in our city. Are jurors biased and therefore more likely to believe the testimony of a police officer over the testimony of defendants or their witnesses? I told reporters that I believed that there is definitely a bias in our city. Ask any young black man what happens to him if he is seen driving a nice car in a nice neighborhood in our city. Ask any young black man what happens if he is driving a nice car in any neighborhood in our city. Everyone knows what “D.W.B” means, and for those who have been living under a rock, it means “driving while black”. Did I mention that young Mr. Robbie Tolan is black?

What contributes to my perception of inequality in trials involving police officers? I know that if a defendant is accused of shooting a police officer, the District Attorney will almost always seek the death penalty. Keep in mind that in most capital murder cases, a murder is committed along with another crime, which warrants the elevation of the charge from murder to capital murder -- where the death penalty may be sought. In Texas, if a person "murders a police officer or fireman  who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman,” then they have committed a capital offense.

So, is this really bad? What is wrong with giving an edge to our men in blue? What about our soldiers, returning from far away countries? Should they get an edge also? Police officers help defend and protect our streets and neighborhoods. Can you imagine the potential fear experienced by police officers as they approach an unknown person sitting in a strange car on the side of an unfamiliar street in a big city? With each traffic stop, the officer probably hopes that this is not the guy who pulls a gun on him and wonders, am I going to have to shoot someone today? God, let this one be okay, and the next, and the next. It is a tough job, and every single police officer doing this thankless job should have our deepest gratitude - and big paychecks.

But when these trusted officers commit crimes or violate our constitutional rights, do they get a pass? Do we ignore what they do because they do these dirty jobs that neither I nor you want to do? From the perspective of my experiences as a criminal defense attorney, I would have to vote “no”. The men in blue have to take their seat in the defendant’s chair just like anyone else would have to if we killed another person intentionally or maimed a citizen by beating him.

Remember Rodney King? Remember back in 1992 watching that famous video of three Los Angeles police officers beating a black man? Kicking, stomping and beating with metal batons a seemingly defenseless African-American man who we later came to know as Rodney King? We were all aghast at this blatant violation of our sensibilities. Rodney King told a Grand Jury: "I felt beat up and like a crushed can.  That’s what I felt like, like a crushed can all over, and my spirits were down real low.”

The Grand Jury indicted the officers involved in the beating of Mr. King, and Los Angeles faced a very controversial trial. We all know what happened next. The jury acquitted all of the officers involved in the beating. Less than two hours later, Los Angeles was in flames.

What about our fellow citizens who protect and serve our country in the military? Men and women who come home from spending months, or even years, fighting in foreign lands only to get involved in criminal activity here in the United States? Many people believe that those who fight our wars and serve our country should absolutely get special treatment. "Leniency for veterans" is a legal argument that is increasingly carrying the day in courts across the country." We even have “veterans' courts” in various cities, with the first such specialty court created to deal exclusively with veterans in Buffalo, New York.

It appears  there is a fine line here. A little bit of wrongdoing may be acceptable. A lot of wrongdoing is not. The first thought most people have when considering cases such as Robbie Tolan's here in Houston is that the officers saw a young black man driving a new SUV and immediately assumed that the car had to have been stolen -- just like the “D.W.B.” arrests that occur in every neighborhood in every city in the United States. Ask any African American male who has been in this situation, and each tells a similar, scary story. Some made it back home in one piece. Some did not. Robbie Tolan -- son of former Major League baseball player Bobby Tolan -- did not die. Rodney King did not die. So what is it going to take? 

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