This is a complicated decision for the judge. Fifty bullets were fired from the guns of the police officers that night and the evidence [...]]]> Tomorrow a judge will deliver his verdict in the most watched criminal trial of 2008 in New York City thus far. Three police officers are on trial for manslaughter, assault and reckless endangerment for killing Sean Bell in a botched up undercover operation at a night club in Queens. The crux of the defense strategy is a justification defense. Were the defendants justified in using deadly force in their jobs as law enforcement officers? The prosecutor has the burden to prove beyond a reasonable doubt that there was no such justification in order to secure guilty convictions.

This is a complicated decision for the judge. Fifty bullets were fired from the guns of the police officers that night and the evidence in the trial has described a plethora of different emotions. In their grand jury testimony, the officers expressed how they felt fear, shock, anxiety, and panic when they confronted Mr. Bell and his friends outside the night club and when Mr. Bell drove his car twice into their unmarked police van. They also testified that they believed that at least one of the occupants of Mr. Bell’s car was armed with a gun and thus, were scared for their own lives when they began shooting at Mr. Bell and his friends.

The State’s version of the events is somewhat similar but of course also different. Undermining the emotions expressed in the defense strategy, the prosecutor explained that the police officers were primarily angry and that their anger is what drove them to shoot repeatedly at Mr. Bell and his friends. The implication of this argument is that angry police officers are not in fear for their lives and that anger precludes justification but neither is true. It is entirely possible to be angry while also justified in using deadly force. While fear and shock may be more sympathetic emotions, a justification defense does not require them. As the prosecutor said in his closing argument, the truth about the emotions lies somewhere between the defense case and the State’s case. The formal doctrine of the criminal law though does not mandate any particular emotions; it is only concerned with the reasonable use of deadly force.

Complicating the defense strategy further in the Sean Bell trial are the number of shots fired and the passage of time. Not surprisingly, the police officers recollect that everything happened very fast, and that the shooting was almost over as soon as it began. Their perception of the passage of time is likely related to their emotional states at the time. Yet, as the prosecutors have made clear, the justification defense does not cover all fifty shots en masse, but rather law enforcement agents have an obligation to stop using deadly force as soon as their reasons for doing so dissipate. In other words, each shot has to be justified. In the heat of the moment though it is rather clear that the police officers did not reassess their need to use deadly force after each shot. Indeed, Officer Oliver who shot 31 times admits that he did not reassess until he ran out of ammunition and only reassessed at that moment because he had no other choice but to do so.

So what really happened here? Perhaps the police officers were justified in their initial shots but what about the later shots? A more complicated story emerges. Instead of only the reasonable use of deadly force, it is possible that panic and shock and reflex also played a part. I blogged on this point last year at PrawfsBlawg. Unfortunately, the doctrine and practice of criminal law rejected more nuanced understandings of defendants and more appropriate defense strategies that combine both justification and excuse.

As a family law professor, I always ask matrimonial practitioners whether in [...]]]> It looks like Eliot and Silda may be staying together after all. For a couple who has long been in the public spotlight, having a hot dog together in Central Park was surely a intentional display of a marriage on the mend. Is this surprising? Is this only to be expected? The statistics on adultery in this country vary widely from as low as 20 percent to as high as 75 percent of married people having engaged in adulterous sex. Many of these adulterous acts are discovered by spouses and many marriages undergo the difficult times now being experienced by the former governor and first lady of New York.

As a family law professor, I always ask matrimonial practitioners whether in their experience, divorce can be avoided after one spouse has cheated on the other. Their answers are always the same and sound true to life: some marriages can overcome an act of adultery while some cannot. What seems to matter are the underlying reasons that led the guilty spouse to stray. If the adultery involves emotional or spiritual bonds, it is a much harder road to forgiveness. Selective forgiveness makes sense on the personal level when two people are trying to sort out their marital relationship. Does it make sense on a societal level?

Americans have long been divided on how to deal with adultery as a societal phenomenon. Interestingly, this difference of opinion has led to selective forgiveness on a societal level. For example, David Paterson succeeded Eliot Spitzer and at his first new conference, Governor Paterson revealed that he too had committed a crime in his past: the misdemeanor of adultery. Certainly there were differences on substantive, procedural and political levels between the two men’s marital mistakes. However, as the New York Times noted, it is important to recognize that both patronizing a prostitute and committing adultery are crimes and yet only Eliot Spitzer is vulnerable to criminal prosecution. Admittedly, adultery has rarely been prosecuted in New York but as Sanford Kadish warned long ago, one of the great dangers of overcriminalization is the selective enforcement of our penal laws. Selective enforcement, of course, necessarily entails selective forgiveness.

In addition to the exercise of discretion by law enforcement as they scrutinize the conduct of individuals, it is also clear that entire categories of individuals are held to higher standards of behavior. Politicians, celebrities, and professional athletes are our leaders, role models and public icons and many believe that they should suffer the wrath of the criminal law even for minor crimes of morality that would ordinarily not be prosecuted if committed by us ordinary folks. Ordinary people are privileged as society largely forgives their adulterous acts.

I want to note one final irony that results from the divided opinion on the public policy question of adultery. Although adultery is a misdemeanor in some states including New York, it is a dead criminal law that is hardly ever enforced. Despite the lack of enforcement, if either Michelle Paterson or Silda Spitzer ever sought a divorce from their husbands, it would probably be granted on the grounds of cruel and inhuman treatment. Cruelty is the most popular ground in New York State today even though there are plenty of marriages breaking up over adultery. Why is this the case?

As one practitioner explained to me recently, no decent divorce lawyer in New York would ever allow their client to admit to a criminal misdemeanor as the grounds for their divorce. Instead, he would prudently advise parties to compromise on the use of the legal fiction of cruelty with this argument about the need to avoid self-incrimination. It is ironic that criminalizing adultery has had the opposite public policy effect: instead of condemning and discouraging certain harmful conduct, it ends up providing the excuse for adulterers to cover their behavior and avoid public stigma.