In a year where prosecutions of police officers often failed, the murder conviction and life sentence of East Point Sgt. Marcus Eberhart is a significant exception.
Experts say it is one of the most severe punishments of a police officer in memory and signals a promising legal strategy gaining favor in Georgia to put bad-behaving cops behind bars.
Because the officer's conviction in the death of a black man arrived shortly before Christmas and received little national exposure, the case has been slow to reverberate. Still, those who study police accountability say the Eberhart verdict shows that while change is slow, a few prosecutors are obtaining weighty convictions.
“It is a very rare event,” said Philip Stinson, an associate professor of criminal justice at Bowling Green State University in Ohio, where he researches police accountability. Judges and juries are often biased in favor of police, he added. “(The crime) has to be so egregious, so over-the-top, that it cannot be explained in any other way.”
In some ways, the sentencing of a police officer to life in prison reflects the new realities of the post-Ferguson world; and in some ways not. Ever since Michael Brown was fatally shot by police in Ferguson in 2014, the public has been consumed by accounts in which officers kill civilians in the line of duty, especially African Americans. Incidents that would have been local news stories, now rise to national events accompanied at times by protests if not riots.
The East Point incident, however, occurred four months before Ferguson. In April 2014, Eberhart and another officer were accused of using a Taser more than a dozen times on a handcuffed Gregory Lewis Towns Jr. Eberhart was the commanding officer at the scene; the other officer, Cpl. Howard Weems, was convicted of aggravated assault and sentenced to 18 months.
Both officers will appeal.
“An easier bar to clear”
Advocates say the Eberhart case reflects the effectiveness of a particular strategy in prosecuting police officers, one in which Fulton County and DeKalb County prosecutors are leading the way. Eberhart was charged with felony murder, a charge which means the victim died while the defendant was committing a separate felony.
Consequently, Fulton County District Attorney Paul Howard did not have to prove the officer had a specific intent to kill the victim, as required for a murder charge. He only had to prove the officer intended to commit the accompanying felony of aggravated assault.
“It’s an easier bar to clear,” said Dean Dabney, a Georgia State University associate professor of criminal justice and criminology. “With murder you have to prove the intended killing of another with malice and aforethought. It’s a different hurdle to clear with assault.”
Law enforcement advocates, for their part, say they don't believe the system needs reform because they don't believe judges and juries are biased in favor of cops.
If Eberhart acted criminally, the outcome confirms that “the system is not rigged, and this bears out the system,” said Lance LoRusso, general counsel for the Georgia Fraternal Order of Police.
This is a tough time for police officers, as they face intense scrutiny and criticism, said Chuck Canterbury, president of the National Fraternal Order of Police.
Prosecutors, he said, are “political animals.” They want to be re-elected and may think they can do so by showing they are tough on misbehaving cops.
For that reason, Canterbury suspects Eberhart may have been over-charged.
“It seems like it’s pretty severe,” Canterbury said.
‘New world of accountability’
Across the country, police officers kill about 1,000 people a year in the line of duty. The overwhelming number of them are legally justified, Stinson said.
Few cops are charged, fewer prosecuted, and even fewer found guilty.
Since 2005, some 79 officers across the country have been charged with murder or manslaughter resulting from an on-duty shooting, according to figures compiled by Stinson, the associate professor. Shootings account for the vast majority of police-related deaths.
Of those, just 26 officers were convicted of manslaughter, felony murder or a lesser crime, with only one convicted of intentional murder.
Eberhart is not the first officer sentenced to a lengthy prison period or life behind bars. About 20 officers have received sentences of more than 40 years or even life for actions on-duty from 2005 to 2012, according to the most recent figures compiled by Stinson. These cases are separate from the shooting incidents mentioned earlier, and pertain to acts such as rape and vehicular manslaughter.
This past year was a high-profile time for police prosecutions, acquittals and hung juries. Six Baltimore officers charged in the death of Freddie Gray, who died of spinal cord injuries after being arrested, were either found not guilty or had their charges dropped.
Weeks ago, a mistrial was declared after jurors could not come to a unanimous decision in the trial of former North Charleston police officer Michael Slager. Slager was accused of fatally shooting an unarmed Walter Scott at a traffic stop in 2015. In a video that drew national attention, Slager appears to shoot Scott as he runs away. A retrial has been scheduled for March 1.
It’s hard to say whether the country is seeing a steady increase in the number of police prosecutions. Before Ferguson, about five officers a year were charged in on-duty police shootings. But in 2015 the number rose to 18 and this past year the number stood at 13, Stinson said.
Still, the numbers are too low, and have significant variations in some years, to make them statistically significant, Stinson said.
Nonetheless, advocates say they see cases coming to court that might not have before Ferguson. Often, that's because of the increasing visual evidence provided by cell phones, police body cameras and security cameras.
Before these devices, police often controlled the narrative on fatal encounters, if only because the only other witness was often the deceased victim, said Samuel Walker, a retired professor of criminal justice at the University of Nebraska at Omaha.
Cell phones, in particular, have introduced a “whole new world of police accountability,” he said.
In the Eberhart case, a witness snapped a picture of the two officers standing over the victim.
Here in Georgia, the numbers paint an even starker picture. Since 2010, there have been 212 fatal police shootings. Three cases have yielded indictments. Prosecutors dropped the charges in one case shortly thereafter, and the remaining two have yet to come to trial, according to an analysis by The Atlanta Journal-Constitution and Channel 2 Action News.
In Fulton County, the use of the felony murder charge hearkens back to when Atlanta police, acting on faulty information, burst into the home of 92-year-old Kathryn Johnston and fatally shot her in 2006. Two officers were indicted on state charges of felony murder, and pleaded guilty to voluntary manslaughter.
In July, Fulton County DA Howard charged former Atlanta police officer James R. Burns with felony murder and aggravated assault in connection with the shooting of Deravis Caine Rogers.
Last January, DeKalb County DA Robert James charged police officer Officer Robert Olsen with two counts of felony murder after he allegedly shot and killed a naked and unarmed Anthony Hill.
Both cases involve a white officer fatally shooting a black man, and both have yet to come to trial.
‘Looks like torture’
A singular difference separates the Eberhart case from the great majority of police-related deaths on duty: the weapon the officer used was not a gun, but a Taser. Some experts say that can make a difference to a jury.
A police officer often fires a gun in a split-second decision. Juries have been hesitant to second guess the officer’s thinking in that life-and-death moment, especially if the officer says they felt their life was in danger, said Dabney, the Georgia State associate professor.
That’s hardly the case when an officer chooses to use a stun gun again and again on a suspect, particularly if they were handcuffed.
“It starts to look like torture,” said Meena Jagannath, an attorney and co-founder of the Community Justice Project in Miami. “There’s some level of intentionality in how they are using the weapon.”
She has presented reports on law enforcement’s use of Tasers and stun guns to the United Nations’ Committee Against Torture, and plans to include the Eberhart case in a follow-up paper she’s preparing.
“This case is also significant because it is related to the misuse of a Taser,” she said. “It puts that back into the national spotlight. Whether they are safe to use, the uniformity of the guidelines.”
Lance LoRusso, the general counsel for the Georgia Fraternal Order of Police, doubts that.
“The science is pretty set” about stun guns, he said. “They are driven by a 9 volt battery, and it’s not going to electrocute anyone.”
The racial element
The Eberhart case may not have received widespread attention for another reason: Both the suspect and the two police officers are black.
That scenario may not have neatly fit into the media’s desire to highlight cases in which a white officer kills a black suspect, advocates say.
Justin Hansford, a St. Louis University professor who has focused on police accountability since Ferguson, said the fact that the officers and suspect were black does not eliminate the elements of race and prejudice.
Black police officers often consider themselves part of the blue line, he said, and they can also level abuses on African American civilians.
“Because of police culture, they often have to chose between being black or blue,” Hansford said. “They choose blue. That’s why they stick around.”
But their loyalty may well be misplaced, he added, for when trouble arises for these black officers, their departments may throw them under the bus more quickly than a white officer.
“They’re misled,” Hansford said. “The blue wall of silence is less secure for them.”
But Frank Rotondo, executive director of the Georgia Association of Chiefs of Police, criticized such thinking as inaccurate, unfair and anti-police.
The policing profession has adopted far greater ethical standards from the time in the sixties and seventies when the “blue wall of silence” became a catch-phrase, he said.
Moreover, minorities coming into the police force often have a strong character and have greater sensitivity in dealing with their racial or ethnic community, he said.
When officers are accused of wrongdoing, internal investigations are color blind, he said.
“It’s a matter of evidence,” he said.
Such criticism of police reflects the thinking of those who look at the profession from the outside and have “tunnel vision” ideas, he said.
“These are ideas of a liberal-thinking academic,” Rotondo said. “I’d hate to be in his class.”
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