MESSAGE
| DATE | 2009-03-02 |
| FROM | Ruben Safir
|
| SUBJECT | Subject: [NYLXS - HANGOUT] Video Justice!
|
Supreme Court Enters the YouTube Era
*
E-Mail
* Print
* Reprints
* Share
Close
o Linkedin
o Digg
o Facebook
o Mixx
o My Space
o Yahoo! Buzz
o Permalink
o
Article Tools Sponsored By
By ADAM LIPTAK
Published: March 2, 2009
WASHINGTON
Skip to next paragraph
Sidebar
Adam Liptak’s column about the legal world appears on Tuesdays.
Adam Liptak’s Columnist Page »
The Supreme Court
is entering the YouTube era.
The first citation in a petition filed with the court last month, for
instance, was not to an affidavit or legal precedent but rather to a
video link . The video shows
what is either appalling police brutality or a measured response to an
arrested man’s intransigence — you be the judge.
Such evidence verité has the potential to unsettle the way appellate
judges do their work, according to a new study
in The Harvard
Law Review. If Supreme Court justices can see for themselves what
happened in a case, the study suggests, they may be less inclined to
defer to the factual findings of jurors and to the conclusions of
lower-court judges.
In 2007, for instance, the Supreme Court considered the case of a
Georgia man who was paralyzed when his car was rammed by the police
during a high-speed chase. The chase was recorded by a camera on the
squad car’s dashboard, and that video
dominated the court’s
analysis.
The federal appeals court in Atlanta had ruled
for the
driver, Victor Harris, at a preliminary stage in the case, saying a jury
should decide whether his driving warranted the aggressive measures
taken by the police.
“Harris remained in control of his vehicle, slowed for turns and
intersections and typically used indicators for turns,” the appeals
court said of the video.
But that is not how most of the justices saw it.
Justice Antonin Scalia
said at the argument
that the video showed “the scariest chase I ever saw since ‘The French
Connection.’ ”
Justice Stephen G. Breyer
said he was not sure how to think about the appeals court’s
interpretation. “I end up with Chico Marx’s old question,” Justice
Breyer said. “Who do you believe — me or your own eyes?”
When the decision in the case, Scott v. Harris
, was handed
down, only Justice John Paul Stevens
dissented. With understated sarcasm, he highlighted the new role his
colleagues had taken on.
“Eight of the jurors on this court,” Justice Stevens said, “reach a
verdict that differs from the views of the judges on both the district
court and the court of appeals who are surely more familiar with the
hazards of driving on Georgia roads than we are.”
The court posted the video on its Web site. “I suggest that the
interested reader take advantage of the link in the court’s opinion and
watch it,” Justice Breyer said in a concurrence.
Three law professors accepted that invitation and made it the basis of
an interesting study published in January in The Harvard Law Review.
They showed the video to 1,350 people, who mostly saw things as the
justices did. Three-quarters of them thought the use of potentially
deadly force by the police was justified by the risk Mr. Harris’s
driving posed.
But African-Americans, liberals, Democrats, people who don’t make much
money and those who live in the Northeast were, the study found, “much
more likely to see the police, rather than Harris, as the source of the
danger posed by the flight and to find the deliberate ramming of
Harris’s vehicle unnecessary to avert risk to the public.”
Video creates a danger, the study said, of “decision-making hubris” by
judges.
Many judges do not seem to understand, said Jessica Silbey, a law
professor at Suffolk University in Boston, that video is not categorical
or irrefutable proof like DNA but only a partial, volatile and
dangerously persuasive account of what happened.
But video can also bring an encounter to life in a way a paper
transcript never will.
Consider the video at the heart of the petition filed last month asking
the court to hear another case about what may have been excessive force
by the police.
This one, also recorded by a patrol car’s dashboard camera, shows Jesse
D. Buckley just after he was stopped for speeding on a rural Florida
road. Being pulled over is no one’s favorite experience, but it
completely undid Mr. Buckley, who said in an interview that the prospect
of paying a $175 ticket was just too much given his personal and money
troubles at the time.
“I just cried,” he said. “I needed to cry. I just couldn’t stop crying.”
He refused to sign the traffic citation, and he was arrested. Hands
cuffed behind his back, he sat down on the ground by his car, sobbing.
Jonathan Rackard, a sheriff’s deputy, tried to lift Mr. Buckley to move
him into the patrol car, but he failed. Then he threatened to use a
Taser stun gun
.
“I don’t care any more,” Mr. Buckley responded, disconsolate. “Tase me.”
So Deputy Buckley applied, over the course of a couple of minutes, three
five-second-long 50,000-volt electrical shocks from the Taser. Between
the second and third shocks, he walked to his patrol car and called for
backup. Mr. Buckley stayed where he was.
A second officer soon arrived, and the two officers placed Mr. Buckley
into the patrol car.
Mr. Buckley pleaded guilty, paid the ticket and sued over the episode.
“I still have scars on my back and some on my chest,” he said the other day.
Deputy Rackard’s lawyers, in an appeals court brief last year, said the
use of “moderate non-deadly force in the face of spirited, though
non-violent, resistance was a reasonably proportionate response.”
“Deputy Rackard should not have to struggle to lift a heavy object like
Buckley,” the brief added, “and run the risk of a work-related injury.”
Mr. Buckley’s lawyers say there are more than 100 federal court
decisions on the use of Tasers and that the lower courts need guidance
from the Supreme Court.
Michael R. Masinter, a lawyer for Mr. Buckley, said that “video evidence
is inherently more compelling than recorded testimony.” But he did not
claim that it is always better evidence, only that it works on the brain
in a different way.
“It’s less a question of law,” he said, “and more one of how we have
evolved as a species.”
|
|
