A few weeks ago I defended Baltimore County Police Officer Christopher Spivey in a use of force assault case. After listening to 3 days of testimony and evidence, the jury took less than 30 minutes to find him not guilty of all charges. Then at least six members of the jury waited around to shake Officer Spivey’s hand and thank him for his 10 years of service to the community as a police
A few days later the Editors of the Sun wrote what I view as an outrageous editorial in which they dismissed the juries’ verdict and all but lamented the fact that there were no demonstrations of social unrest as a result of the acquittal. Below is a link to the editorial as well as the response that I sent to the paper. Not surprisingly the editors lacked the journalistic integrity to print my response.
The Sun began its’ editorial on the acquittal in the assault trial of Officer Christopher Spivey with these two words, “Thirty Minutes”. The editors were apparently pointing to the jury’s quick acquittal in this case as evidence that they failed to take the allegations in this case seriously. The editorial went on to essentially tell its readers that these jurors must have made their decision based on something other than the evidence, because they (the editors) have seen the video so they know better than the jury who listened to three days of evidence.
Never mind, they tacitly tell their readers, that they didn’t hear the testimony of any of the dozen or so witnesses who testified at the trial including the three officers on that video, or the nationally recognized use of force expert. Never mind that they have never seen the video slowed down to 30 frames per second as we presented it to the jury. Never mind that they weren’t in the courtroom to hear the suspect, Diamante Fararr, himself say that he was not spat on intentionally, but instead that “a few drops” of spittle came out of Officer Spivey’s mouth when he was yelling at him that he could have killed someone driving the way that he did.
The editorial clearly suggests that the 12 person, multi-ethnic, unanimous jury must have based their decision on fear that the police (whom the editors compared to extortionist) would stop protecting the community if they convicted Officer Spivey, not based on the evidence they carefully listened to for three days in the courtroom last week. Who are you going to believe, they tell their readers, us or the jurors lying eyes (and ears)?
The editors display a shocking and reprehensible level of disrespect for these 12 people (and the jury system generally) who, anyone who was actually in that courtroom would tell you, paid very careful attention to every witness and every piece of evidence that was presented, including of course, the infamous video. Had the editors actually sat through the entire trial and disagreed with the juror’s verdict, I would respect their opinion. But for them to dismiss the verdict without doing so is as disrespectful as it is irresponsible. It also further damaged the reputation of an innocent police officer who had already been tarnished by the charges.
My name is Brian Thompson and I am the attorney who represented Officer Spivey in this case. Here is my response.
17 Seconds and just 5 strikes, three delivered by Officer Spivey, and two delivered by another officer. That’s how long it took them to subdue a violently resisting felon who had just jeopardized the lives of countless citizens in his desperate attempt to avoid apprehension. And here’s the topper. They did so without causing injury to the suspect – a fact Mr. Fararr confirmed immediately after his arrest and reaffirmed in court last week.
The fact is that Officer Spivey did not kick Mr. Fararr in the face as the State alleged. If he had, there can be no doubt that Mr. Fararr would have sustained serious visible injury. Instead Officer Spivey struck him in the shoulder, exactly as he was trained to do. He did so not in an attempt to injure or punish him but instead to stun him long enough to get him safely into custody, just as he has been trained. The other two strikes were delivered because, as all three officers testified, he continued to struggle and had his right arm wedged firmly under his body. Mr. Fararr also hadn’t been frisked and police officers are trained to presume that all suspects are armed until they are frisked, particularly ones who have taken these extreme and dangerous measures to avoid apprehension. And we don’t have to take the officers’ word for it, all of these facts become readily apparent when the video is viewed in the frame by frame format that we presented to the jury.
Our use of force expert, Charles “Joe” Key, one of the foremost experts on the use of force in the country, explained all of this and more to the jury. Not only had Officer Spivey not acted with excessive force, Mr. Key opined, this was nearly a text book application of the use of force by these three officers. When officer Spivey first encountered Mr. Fararr in that parking lot he (Fararr) was still on his feet and was standing in an aggressive “bladed” sideways posture. He also appeared to be reaching for something in the back right of his waistband. Mr. Key opined that at this juncture under the totality of the circumstances, Mr. Fararr presented a lethal threat to the officers. In other words, the officers would have been justified in using lethal force at that point. And even when Mr. Fararr went to the ground, he went to a push up or “ground fighting “ position that the officers are trained to recognize as a position from which the suspect can grab a weapon or mount an attack, not a submissive arms out position.
The State not only failed to produce an expert to contradict Mr. Key, they failed to produce a single witness, police officer or civilian, to take the stand and explain to the jury why they should find that Officer Spivey had acted with excessive force. No wonder it took the jury only 30 minutes to acquit him.
And since the editors chose to bring up the issue of race – something that I never did at the trial – by pointing out that Officer Spivey is white and Mr. Fararr is black, it’s curious to me that they didn’t seem to notice or perhaps care, that there were two officers who struck Mr. Fararr, one black and one white, yet only the white officer was charged. This in spite of the fact that the black officer struck Mr. Fararr a full two seconds after Officer Spivey’s last strike, which according to the editors was delivered “while he was being restrained by two other officers”. Why, I wonder, would not the editors be concerned about an inconsistent charging decision by the State in a police use of force case? I argued and deeply believe that both of these officers not only acted appropriately, but given the threat that they faced at the hands of Mr. Fararr, acted with considerable restraint. The State clearly disagreed but how do they justify charging one but not the other?
The men and woman who put their lives on the line every day to protect the rest of us understand and expect that their actions will be scrutinized, particularly where use of force is concerned. But they also expect that those who scrutinize their actions will carefully look at all of the evidence, not jump to conclusions based on a video or any other single piece of evidence. Unfortunately, that is exactlywhat the State did in this case, and now so have the editors of the Baltimore Sun.