The D.C. Council Gave Defendants Jury Trial Rights for APO – And The Prosecutors Are Trying To Take It Away

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A trial for someone accused of assaulting a police officer usually consists of:

  1. A police officer testifying as the victim
  2. A defendant testifying in his own defense
  3. A judge making a finding of guilt or innocence

Not surprisingly, when the judge has to decide between a defendant’s word against an officer’s, the defendant usually loses. This is particularly true because step three (above) requires a judge to state on the record if he found the witness credible (as required by Superior Court Criminal Rule 23(b)). If a judge finds that an officer was not credible (truthful), that finding becomes part of the officer’s record and must be disclosed at every future trial in which the officer testifies. As the same judges see the same officers day in and day out, a judge may be reluctant to make such a finding and put that officer’s livelihood on the line.

Is the Scale Unfairly Balanced?

Basically, the odds are stacked against the defendant. This scale balance is particularly unfair because the accusation of assaulting a police officer is a serious offense that can affect a defendant’s future employment opportunities, housing opportunities, financial status, immigration status, and everything in between.

Further, the APO statute was problematic due to allegations that the charge was being used to cover up excessive use of force and civil rights violation. For example, WAMU 88.5 news conducted a study of APO charges from 2012 to 2014, and the findings included:

  • Ninety percent of those charged with APO in DC were black even though the District’s population is only made up of approximately 50% black residents.
  • Significantly more medical attention was required for those accused of APO than that required for the police officer “victims.”
  • Nearly 2/3 of those charged with APO were not charged with any other crime, which calls into question whether officers had the requisite legal justification to approach the person in the first place.

As an APO charge creates direct opposition of citizens against officers, it was detrimental to the community’s relationship with the DC police. In fact, even DC Police Chief Cathy Lanier urged changes to the APO statute.

Therefore, in practice, the APO charge often resulted in an unjust arrest, an unjust charge, an unjust trial, and community unrest.

D.C. Council Amends APO Statute

In March 2016, the D.C. Council had the support of defense attorneys, prosecutors, and the police when it made major changes to the APO statute (D.C. Code § 22-405).

First, it narrowed the assault on a police officer charge to only assault, and took out the vague and broad language that prohibited other acts such as interfering, impeding, intimidating, or interfering with officers. Second, it created an entirely new charge for resisting arrest, so that one who simply resisted would not have a detrimental “assault on a police officer” conviction on his or her record. Third, it allowed for both of these charges to be heard in front of a jury instead of a single judge.

Granting Jury Trial Rights for APO Cases is a Major Victory

Making this offense available for a jury trial is a major victory for those accused of assaulting a police officer. When a judge is making the determination of guilt (in what is called a “bench trial”), the case is being heard by someone who is highly educated, who likely lives in an affluent community, and who likely has not undergone the life experiences of many of those accused of crimes in the District. It is possible that the Judge hearing the case has never personally had a negative interaction with law enforcement or been personally unfairly targeted by law enforcement. Therefore, an implicit – and sometimes explicit – bias against the defendant can be present from the beginning of trial.

Juries, on the other hand, can include people who have had similar life experiences as the accused, who may have had negative run-ins with the police themselves, and who may be more willing than a judge to question the credibility of an officer. As explained by the United States Supreme Court, the Sixth Amendment of the Constitution allows for the benefit of a jury trial because a jury “interposes between the accused and his accuser the judgment of laymen who are less tutored perhaps than a judge or panel of judges, but who, at the same time, are less likely to function or appear as but another arm of the Government that has proceeded against him.” Baldwin v. New York, 399 U.S. 66, 72 (1970).

Further, unlike a judge, the jury doesn’t have to make specific credibility findings on the record. In testimony in front of the D.C. Council in favor of the amendment, Patrice Sulton, the Chair of the Legislation Committee for the D.C. Association of Criminal Defense Lawyers, explained:

“[Making the offense available for a jury trial] takes the judge out of the uncomfortable position of having to make a finding that the officer’s testimony is not credible, which might impact their job later as [the judge] has to make those specific [credibility] findings.”

Therefore, a jury also eliminates the problem of necessitating an official credibility finding against the officer in order to acquit the defendant.

However, approximately six months after these changes were made, the government is trying to circumvent the will of the D.C. Council by taking away these jury trial rights for this accusation.

The Prosecution Is Taking Away the Defendant’s Right to a Jury Trial

There has been a recent influx in cases where the allegations involve the defendant assaulting a police officer, but the United States Attorney’s Office instead charges the case as a simple assault.

Simple assault carries a maximum of 180 days in jail, whereas assault on a police officer now carries a 6 months maximum. In DC, a jury trial is only available if the charge carries a maximum of 6 months or more. Therefore, as simple assault is just a few days shy of reaching that requirement, a defendant is not entitled to a jury trial on a simple assault charge.

On one hand, it is beneficial for defendants to not have an “assault on a police officer” charge on their record because it may sound worse than merely “simple assault.” However, on the other hand, by charging these cases as simple assault, the government is merely circumventing the will of the Council and is failing to address any of the concerns or rationales for the modification of the law.

Charging the cases as a “simple assault” still creates unjust results for a number of reasons. First, just because the charge changes doesn’t mean the allegation does. The police report and statement of facts are still public record, so the allegation that the defendant assaulted a police officer is still available to anyone who wishes to see it. Second, the change in the charge does not grant the defendant any additional defenses or protections than those available in an APO charge. Finally, the police officer is still testifying as the “victim,” so all of the testimony and credibility issues remain.

This amendment to the APO statute was supported by every side of the aisle. The changes were put in place to benefit the accused and the community at large, and to provide a fair prosecution. The United States Attorney’s Office’s decision to circumvent the will of the DC council is detrimental to the interest of justice.

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