Mob justice

National Review, May 25, 1992

IN DECIDING whether or not to re-try the case against the four officers, the Justice Department is faced with several difficult issues, including 1) avoiding the appearance (and reality) of being influenced by inappropriate factors such as civil unrest in the streets; and 2) overcoming the burden of providing the defendants with a fair trial in the light of the implication that a second jury must return the "right" verdict or be responsible for the devastation of Oakland or Newark or Atlanta.

In addition, the Department must disavow the view that jurors in a criminal trial are to be considered "representatives" of various racial and ethnic interests. The absence of black jurors in the King case accounted for what one critic described as a "legal lynching." The premise that jurors are to reflect prevailing notions among their racial and ethnic peers rather than simply the dictates of their own consciences is one radically inconsistent with the jury system.

Hearing the Los Angeles jurors explain their decision, one cannot help concluding that they acted in what they at least viewed as a fair manner. There was the eight-mile automobile chase; the drunkenness and criminal history of Rodney King; his physical resistance; the fact that other occupants of the vehicle were apparently treated respectfully. And, of course, there was their sense that our inner cities are fearful places to be and that the policeman's job is a dangerous one not liable to easy second guessing. Reasonable people can question the "not guilty" verdicts in the light of the video, but to sum up all of these considerations as suburban racism is itself a pernicious social prejudice.

A federal prosecution following a state acquittal does not necessarily violate the Sixth Amendment's clause against double jeopardy, but it nevertheless is unusual. Civil-rights cases are particularly difficult since the prosecuters must demonstrate that the policemen's actions were inspired by the victim's race as opposed to his criminal status or conduct, or by sheer churlishness. Persuading 12 jurors of this motive "beyond a reasonable doubt" will not be a simple proposition.

The critical question is: "Why should a second prosecution result in a different verdict from the first?" If the answer turns in any way upon the violence engendered by the first verdict, then the Justice Department will almost certainly view a second prosecution as untenable. To conclude otherwise would be to place upon a jury responsibility for consequences that are not properly its to bear. No juror should have to weigh his decision on guilt or innocence under these circumstances.

Any court watcher in any big city knows that perplexing verdicts of the Rodney King sort occur daily. How can a New York City jury acquit of murder a man seen by dozens of persons in the act of killing Rabbi Meir Kahane? How can a Detroit jury acquit a black defendant seen assaulting a white victim on another video played throughout the nation? What the Justice Department must avoid are the imputations that a miscarriage of justice will be remedied only when mobs riot, and that the rioters themselves will be treated indulgently because they are objecting to a presumed miscarriage of justice. The Attorney General's formation of a joint federal-state task force to investigate and prosecute riot-related criminal activity will do something to banish these imputations. The principal message must be that the rioters on the streets of Los Angeles are responsible for the destruction of that community, and no one else.