Winnipeg Free Press - PRINT EDITION

Convicting cops tough: expert

Juries reluctant to find guilt for alleged on-duty crimes

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A jury's acquittal of two police officers for shooting an unarmed man and trying to cover it up has again raised the difficulty of successfully prosecuting police for crimes allegedly committed while on duty.

Late Friday, a six-woman, six-man Manitoba Court of Queen's Bench jury found both Const. Darrel Keith Selley and Const. Kristopher John Overwater not guilty of shooting the victim in the buttocks and then lying to their superiors about the man grabbing one of their handguns during a foot chase down a River Heights back lane four years ago. The Crown will not appeal the verdict.

Former Crown prosecutor and deputy attorney general Bruce MacFarlane, now a law professor at the University of Manitoba, said securing a jury conviction against a police officer for an on-the-job incident is extremely difficult not only in Canada, but in courts around the world.

It's because the public has a high level of trust in police officers, he said.

That means jurors are more willing to give police the benefit of the doubt if something goes wrong in the execution of their duties, he said.

"If you're talking about the normal exercise of normal police powers, juries generally tend to say in essence, 'These are the people that are protecting us on a daily basis; they have to exercise judgment really quickly, they don't have time for reflection,' " MacFarlane said.

"They say, 'Sure maybe with the benefit of hindsight he or she should have done it differently, but you have to understand the position that they were in at the time; it was a split-second judgment call, and should we put them in jail because they made an error in judgment in a split second?' "

In the past decade, the Winnipeg Police Association has complained officers are held to a higher standard when it comes to criminal charges -- that charges are laid when there is little chance of conviction.

Manitoba Justice says two factors go into any decision to prosecute a police officer: whether there is a reasonable likelihood of conviction and whether proceeding would be in the public interest. The same standards are used for everyone else. Since 2000, independent lawyers have been brought in to prosecute cases against police.

MacFarlane said when he was deputy minister he became involved in the Heads of Prosecuting Agencies in the Commonwealth, which examined common problems among a dozen member countries that each share prosecution systems based on English common law.

"One of the issues was prosecuting police," MacFarlane said. "What struck me was everybody was saying the same thing, and that was when it came to a charge arising from the execution of their duties, it was extremely difficult in all of these countries to successfully prosecute, even though the evidence appeared to be there."

He said despite this apparent unwillingness of juries to convict police officers, it's extremely unlikely the standard of laying a charge against an officer will ever change.

"The real test is if jurors were to apply the evidence and the law properly, if they were to do their job properly, is there a reasonable likelihood of conviction? If the answer is yes, then you charge."

Robert Tapper, who prosecuted Selley and Overwater, said he believes after two days of deliberations, the jury decided the shooting victim got what he deserved and that neither officer should be punished.

Tapper also pointed to the beating of Rodney King by Los Angeles police officers on March 3, 1991.

Despite a video of the incident, a jury acquitted the four officers. The acquittals are considered to have sparked the 1992 Los Angeles riots in which 53 people were killed and more than 2,000 were injured.

Some of the more prominent cases against police officers and their outcomes:

Richard Dow: The former city police officer was sentenced to 16 months in jail in September 2012 for sexually assaulting 11 young women whom he persuaded to model for his photography business.

Harry Bakema: The former East St. Paul police chief has pleaded not guilty to perjury, obstruction of justice and breach of trust in connection with the February 2005 traffic death of Crystal Taman. His trial ended in May 2012. A decision is pending.

Jeffery Moyse and Trevor Ens: The two RCMP officers were convicted in November 2011 for the beating and illegal arrest and detention of a 19-year-old man in October 2008. Moyse received a four-month jail sentence and Ens was sentenced to four months of house arrest. Both have appealed.

Jess Zebrun and Peter 0'Kane: The two city police officers were charged with perjury in connection with a 2005 drug search. They were acquitted on a legal technicality in February 2011, but a new trial was ordered. The case against Zebrun was dropped after O'Kane died in an off-duty accident late last year.

(Unnamed officer): The now 56-year-old former city police officer, a 25-year veteran of the force, was sentenced in August 2009 to 15 years in prison for the home invasion and prolonged rape of his terminally ill ex-wife in July 2008. He can't be named because of a court order.

Daniel Aminot: The city police officer pleaded guilty in August 2009 to impaired driving. When driving off-duty in May 2007, he drove his motorcycle into oncoming traffic and crashed, injuring himself and his helmetless female passenger. He was fined $1,500 and suspended for driving for one year.

Derek Harvey Zenk: In a controversial plea bargain, the city police officer pleaded guilty in July 2007 to dangerous driving causing death in exchange for a conditional sentence of two years less a day. He was charged in connection with a February 2005 off-duty collision that killed Crystal Taman.

William Anastacio: The city police officer was convicted in February 2005 of assaulting an intoxicated man an the Main Street Project on Aug. 8., 2002. He was fined $350.

Alexander Whalen, Grant Bannatyne, Michael Peterson: The three city police officers were charged with one count each of assault causing bodily harm in November 2003 after restraining an unruly bar patron. The charges were stayed two years later when the victim could not be located.

Marianne Sheard: The city police officer was charged in connection with an off-duty February 1998 road-rage incident. The Crown dropped the case in 2003, deciding not to take the matter to a third trial. Sheard was acquitted by a jury in January 2001, but the Manitoba Court of Appeal ordered a new trial. Her second trial ended with a hung jury.

Trevor Pashe: The Dakota Ojibway police officer pleaded guilty in January 2002 to common assault against his now-former wife and received a suspended sentence and probation.

-- compiled by Bruce Owen

Republished from the Winnipeg Free Press print edition February 12, 2013 B1

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