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Jury or Judge: Can You Kill a Corpse?

Brelo - Judge Jury Executioner - Police - Seattle Criminal Lawyer Blog

When I first heard the news that there was a verdict in Cleveland Police Officer Michael Brelo’s shooting case I was pleased. I thought it would give me a great opportunity to demonstrate what I had been talking about in prior posts regarding these types of cases: Let the Jury Decide, Let the Jury Decide, Let the Jury Decide. Except this case was not decided by a Jury. It was decided by a Judge. Ugh.

A judge trial, more properly called a ‘bench trial’, is rare. Very rare. As in, you almost never seriously consider it in criminal cases. In divorces, at least in Washington State, you are stuck with them. I guess that is because there is no Constitutional Right to a jury trial in those cases, no presumption of innocence, no proof beyond a reasonable doubt. Just two angry former lovers fighting over toasters and pet dogs and who gets to (or in some cases, has to) take the kids over holiday weekends. (Sorry Mimi and SDS, but you know it’s true. As I always say I’d rather handle a rape or murder case any day than a divorce. Much less nasty.)


But perhaps the real reason that divorces don’t get juries is that there is too much emotion involved, too much smoke and not enough flame, thus making it likely that jurors might get “confused by the facts” as my dad used to say. Which is also the only real reason that you would ever want to “waive jury” in a criminal case. Well, that, and maybe also knowing that your judge had a particular bias, like they don’t like prostitutes and the complaining witness (i.e. “victim”) is a prostitute, or perhaps a bias in favor of the police, which is extremely common in the judiciary, especially since most of them are former prosecutors. Sad but true. Check it out if you don’t believe me.

Here, however, try as I might, I was unable to find any inherent bias with Judge John O’Donnell. Nevertheless, I figured that we could still use this case to demonstrate some basic legal concepts:  Jury vs Bench Trials, Felony Murder, Excessive Use of Force and Proximate Cause.

Jury vs Bench (Judge) Trials

As I’ve said, you only waive jury if you are worried that the jurors’ emotions may overrule their reasoning ability due to “bad facts,” or you are playing to judicial bias. While the second reason may be morally repugnant that is irrelevant in my view, as your first duty is to your client. So long as you are not violating any ethical rules you have no choice. In my opinion, not putting your client first is, in and of itself, unethical. I say this in part because nothing I say here is meant to disparage the criminal defense attorneys on this case, who did amazing work and may have taken a daring risk by waiving jury.

The jury is still out on why exactly they did that. I’d love to sit down with them sometime and find out.

Here there is no doubt that they may have simply been concerned that jurors would not be able to get past the fact that there were so many bullets riddling the victims’ car. There were 137 of them, and 49 came from their client. They had a technical defense, that there was a question of proximate cause of death and that the use of force was reasonable. It is easy to see that the jurors might have had trouble getting their heads around those arguments given all the bullet holes.

But as horrible as it sounds, the fact is that Officer Brelo may have been blasting away at two corpses.

If that was the case (i.e. if the prosecution couldn’t prove that it was not the case beyond a reasonable doubt) then I can see why the defense attorneys might want to have a “neutral and detached magistrate” decide their client’s fate. On the other hand they may have thought he was biased in favor of the police or racist and they were playing that darn “Race Card” or maybe he was running for re-election in a pro-cop jurisdiction. I don’t know. Whatever their reason, apparently they made the right choice for their client, regardless of how I feel about it personally.

One thing is for certain: if their client had been a black man accused of plugging a couple of police officers a couple of dozen times as he stood on the hood of their patrol car the jury would NEVER have been waived. That would have been malpractice. If that sounds like a double standard, fair enough, but it is a double standard based at least in part on legal principles. In this case, the felony murder rule (or I should say, lack thereof in this case).

Felony Murder Rule

The felony murder rule states that whenever a person is involved in committing certain felonies, or an accomplice is, and someone is killed during the commission of that felony, then murder is imputed to all of the felons, whether or not they had an intent to kill. The classic example would be a bank guard being shot when the gun a robber was pointing at them accidentally discharged. No intent to kill, but since it was a robbery, felony murder is charged.

The root of this rule is that committing violent felony crimes is inherently dangerous so if someone gets killed it is not surprising. A sort of strict liability analysis.

Here, if the cops were trying to steal drugs from the victims, then the rule would apply. But instead they were chasing down suspects who had fled from them and during the chase they heard what was described as gunfire, arguably aimed at them. So, they were within their rights to shoot.  At least that is the argument. The issue of whether or not their use of force was excessive is another question.

Excessive Use of Force

This is a very difficult question with no clear-cut answer. It is subjective and depends on the jurisdiction. The ‘heat of the moment’ factor is sometimes part of the analysis in the media, although it shouldn’t be since it implies that if your adrenaline is flowing then it is OK to shoot someone. It is not.

Here the argument is that there was a valid legal basis for Brelo to shoot the victims as he had a reasonable good faith belief that they were armed and dangerous, based on inaccurate but reasonably believable reports that the car backfiring was actually shots being fired at the police. Having heard both sounds myself I agree that they sound very similar. Therefore it is not unreasonable to confuse the sounds and proceed accordingly. At least that is the argument – an argument Judge O’Donnell agreed with.

In his extremely well written and thorough opinion, which reads like a novel, he explains that Brelo had justification for shooting, but that the primary basis for his not guilty verdict was lack of causation. In other words, the prosecution did not prove that he was not shooting at corpses, to be blunt. You can’t murder a corpse.

Proximate Cause

You’d be amazed how often this comes up. We all learned the term in Torts class in law school, studying that brilliant jurist Justice Cardozo’s opinions about scales falling on people and ships coming loose from their moorings. (Yes, IL’s, I know he was actually writing about foreseeability and only issued the injunction in Erie Canal, but I am using some poetic license here. 🙂 ) Causation is also critical in many criminal cases.

A common example is in vehicular homicide cases, where it is unclear that the fact someone was driving drunk actually caused a fatal accident because some other intervening proximate cause may have caused the accident or the death.

A classic case would be a drunk driver hitting a person who had just jumped off of a highway bridge, colliding with them mid-air on their way down to the ground while attempting suicide.

Don’t laugh; it happens. More than you can imagine. The question becomes why did the person die? Suicide or drunk driving? (In Washington this rule is extremely convoluted but I am not going to get into that here.) I would argue that even a sober person would have struck and killed the jumper, and thus the intoxication did not cause the death.

In this case it is a matter of which bullet killed the victims, since there were about a million cops all shooting at once, not to mention that they might have been dead before Brelo did his bizarre Rambo act and jumped on the hood of their car, blasting away. So a very hyper technical defense really, and a good reason not to let a jury decide the case.

Which brings us back to where we began. I was not happy that this was a judge verdict. It would have been so much better for me if it had not been. I could have written about juries and fairness instead of judges and possible unfairness. But that, as always, is not the point. The point is that, like it or not, what we really have here is a very well written judicial analysis and great criminal defense lawyers doing great work. For their client, not me. Or anyone else, for that matter.

If you would like Craig Platt’s help with a legal issue, you can find his contact information here or fill out a confidential, easy form about your case.