Milwaukee misconduct cases raise 'code of silence' questions

By Kevin Johnson

MILWAUKEE, Wis. — The beatings of Frank Jude and Lovell Harris triggered outrage in the city of Milwaukee.

Last year, when a Milwaukee jury did not convict three local police officers on battery charges for a beating in which Jude was kicked in the head and stabbed in both ears, the public fury intensified. A demonstration followed the verdicts, which Mayor Tom Barrett characterizes as a breakdown of the justice system.

Law enforcement and legal analysts say the cases — which federal prosecutors refiled under different charges and won earlier this year —underscore the difficulty in winning convictions against officers.

Such cases, in which officers are accused of using excessive force to violate victims' civil rights, are plagued by problems with victims' credibility, a lack of strong physical evidence and the "code of silence" adopted by some officers who refuse to testify against others in their ranks.

Police given benefit of doubt

David Allred, who prosecuted misconduct cases at the Justice Department for more than three decades, says the prosecutions almost always involve juries who are predisposed to believe the police rather than the victims.

"All of us have lost cases in which we believed the officer did something wrong, and I believed the jury was gonna convict," says Allred, who retired this year as a deputy chief in the Civil Rights Division.

In a 1983 Alabama prisoner abuse case, Allred says he faced not only a potentially biased jury and a victim with a criminal past, but also a judge who told Allred he "would do everything he could to prevent a conviction."

Allred lost the case. It remains a stark reminder that misconduct cases don't necessarily depend on the strength of the evidence. "These are by far the hardest cases of any kind of criminal cases to prosecute," Allred says.

The prosecutor's assessment is supported by a USA TODAY analysis of federal prosecutions of law enforcement officers, based on data compiled by the Transactional Records Access Clearinghouse at Syracuse University.

At least 96% of all law enforcement cases referred to the Justice Department's Civil Rights Division in each of the past seven years by investigative agencies did not result in prosecutions.

Even so, the Justice Department says its brutality prosecutions are rising. Federal prosecutors filed 25% more excessive force cases during the past seven fiscal years compared with the previous seven, and won 53% more convictions.

Alex Busansky, who prosecuted police cases in the Civil Rights Division for seven years before leaving in 2004, says the code of silence and lack of physical evidence hampers many investigations. Without the cooperation of witnesses — often other police officers — the cases are reduced to allegations and denials.

"You really need someone to cooperate," Busansky says. "You don't know what reasonable doubt means until you get involved in some of these cases."

Crossing line in Milwaukee

In the Milwaukee case, securing other officers' cooperation was a major challenge and key to the eventual convictions of seven former police officers (an eighth was acquitted).

"It was critically important to establish a truthful account of what happened," says Mark Kappelhoff, criminal section chief in the Civil Rights Division. "Law enforcement officers are held in high esteem, so having another police officer testify about the misconduct was valuable evidence to prove that the officers crossed the line that night."

The last two of the seven officers were sentenced earlier this month to more than two years in prison for their roles in the attacks. Jude, who is biracial, and Harris, who is black, said they heard racial slurs as they were beaten.

Former officers Jon Bartlett, Daniel Masarik and Andrew Spengler, each sentenced last month to more than 15 years in prison, received the most severe punishments.

Jude and Harris were attacked after attending a party at Spengler's home in October 2004. Invited there by one of Spengler's friends, they were accused of stealing a police badge from the officer's bedroom. No badge was ever found in their possession.

Such incidents have stoked concern within the nation's largest police union, the Fraternal Order of Police, that law enforcement agencies may be dropping standards to fill vacancies and cutting back on training, FOP Executive Director James Pasco says.

Shortly after the beatings of Jude and Harris, Barrett says the Milwaukee Police Department began requiring all recruits to submit to psychological testing before joining the force. When the test was first administered two years ago, 20% of the recruits failed.

Barrett says the department made the change after investigations into the assaults raised questions about Officer Bartlett's conduct prior to joining the force.

Bridget Boyle, Bartlett's attorney, says he was convicted in 1992 of fleeing from police in a traffic-related incident. Because of that conviction, Boyle says Bartlett "technically should not have been hired as a police officer."

Boyle describes the beating and prosecutions as "a difficult period" for the community. In places where police are convicted of misconduct, Boyle believes confidence in law enforcement institutions is compromised for years.

"Jurors are already scrutinizing police officers' statements more closely now" in Milwaukee, says Boyle, who is married to a city police officer. "The fact that there are a couple of bad eggs doesn't mean the whole system is rotten."

*Prosecutions are up, 1A

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