CONVICTING POLICE CALLED UPHILL FIGHT

Experts Consider Possible Factors In Mattingly Case

Prosecutors cleared a major hurdle Friday with the murder indictment of
Louisville Metro Police Detective McKenzie G. Mattingly, who shot and
killed a fleeing 19-year-old suspect in the back in January.

But the hard part is still to come, according to legal experts, who say
that while winning an indictment against a police officer in a shooting
case is rare, getting a conviction is even more difficult.

"They are mostly acquitted," said Geoffrey Alpert, a professor of
criminology at the University of South Carolina specializing in studying
police use of deadly force. "It's his job to have a gun. It's his job to
enforce the law, and if he makes a mistake, it's more likely" to end up as
a civil case than a criminal one.

Mattingly's attorney will most likely argue that the detective shot Michael
Newby because he felt threatened, Alpert said - and if jurors believe that,
it is unlikely they will convict him. In addition, police officers
generally have instant credibility with jurors and are often given the
benefit of the doubt, other experts say.

"Juries have a natural sympathy for police officers," said Sam Walker, a
criminal justice professor at the University of Nebraska at Omaha. "There
is an ingrained bias."

One mitigating factor in the Newby case, the experts said, is the racially
charged climate surrounding it; the seventh fatal shooting of an
African-American man by Louisville or metro police since 1998 escalated
emotions.

None of the officers in the other six shootings was indicted.

For that reason, picking an unbiased jury may be a challenge, experts said.

"The citizens are going to be questioning the police and police practices
because of past behavior of other officers," said Tod Burke, a former
Maryland police officer and now a professor of criminal justice at Radford
University in Virginia. "The fact that there's a history (of this), the
public may feel that something's got to be done."

"The officer is in a very, very bad situation," he said, adding that
Mattingly's attorney, Steve Schroering, should immediately ask for a change
of venue outside of the Louisville media area.

Schroering declined to comment for this story.

Mattingly could not be reached for comment yesterday, but a new posting on
a Web site formed in support of Mattingly - www.savemckenzie.com - was
signed "Love, McKenzie," and thanks citizens for supporting him.

"By now, most of you have seen the news or spoken to someone about my
indictment (Friday)," the posting said. "These are dark hours but we will
shine through! We are holding up as best as can be expected. Now, more than
ever, your support and prayers are needed. We are not sure of the future
but comfortable in the fact that things will be okay in the end."

A question of threat

Police Chief Robert White has said that Mattingly and Newby were struggling
over Mattingly's service handgun when the weapon discharged during an
attempted undercover drug buy just outside a liquor store and grocery near
46th and Market streets on Jan. 3.

Newby ran, and Mattingly fired his gun four times, striking Newby three
times in the back. Police said drugs were found on Newby's body and a
.45-caliber gun was in his waistband.

"If there were no gun and the guy was just running away and the officer
shot him in the back," a conviction would be more certain, Alpert said.
"But that's because there is no threat. Here, there is a potential of a threat.

"To me that's the bottom line," he added. "If the officer had any kind of
an inkling that this kid was a threat and thought he turned (back toward
Mattingly) or had his hand on his waist about to turn, chances are they are
not going to get a conviction."

Under Kentucky law, a person is allowed to use deadly force in order to
prevent death or serious injury from another.

However, "If it's portrayed as (Newby) was running with his hands out to
his side and the officer was never threatened," Alpert predicted, "they'll
convict."

Prosecutors in Commonwealth's Attorney Dave Stengel's office would not
discuss specifics of the case, and police have not said whether Mattingly
knew Newby had a gun.

Mattingly told his side of the story to a Jefferson County grand jury on
Friday, but proceedings are secret. The jurors indicted the officer on
charges of murder and wanton endangerment, the latter for allegedly
endangering the lives of five people who were nearby when he fired his
weapon. He will be arraigned tomorrow.

Hard to track cases

Statistics on the number of people fatally shot by police in the United
States and the number of times police are judged to have used excessive
force, as well as percentages of police convictions in fatal shootings are
difficult to find.

A New York Times story a few years ago noted that no comprehensive
accounting for the nation's entire 17,000 police departments exists.

And according to the Bureau of Justice Statistics, the annual number of
nonjustifiable homicides by police in the United States is unknown, because
homicide reports tracked in an FBI database do not differentiate between
murders by police and by civilians.

This lack of statistics makes it difficult to draw meaningful conclusions
on the number of fatal police shootings, the racial makeup of the
shootings, how many are justified or how often police are indicted, or
convicted.

But legal experts say that in their experience, police officers are rarely
indicted for civilian shootings, and convicted even less.

For example, Joseph Roddy, a Chicago attorney who represents the police
union there, has represented about 50 police officers involved in shootings
in the last three decades.

Five of those officers were indicted and only one was convicted, he said.

Roddy said he does not believe the low conviction rate has anything to do
with favoritism from jurors.

"I would equate trying a police case like flipping a coin," he said. "Half
the jury loves police officers and half of them do not like police
officers, because they got a ticket or their wife got a ticket."

Roddy said he would argue that most police officers aren't convicted
because the shootings are justified.

"The policemen aren't out there trying to get in a gunfight," he said.
"They have a wife and family and kids they are trying to go home to."

But in announcing Mattingly's indictments on Friday, Stengel said that from
the first day, he believed the Newby case "sounded like a bad shooting,"
especially given the placement of the shots, which he did not elaborate upon.

"This one we felt strongly about," he said.

Still, Stengel agreed with the experts that it's always tough to
successfully prosecute police officers, regardless of the type of case.

"It's more difficult than prosecuting the average Joe," he said. "People, I
think, just normally think of them in terms of (being) law-abiding
citizens. It's a hurdle."

Local prosecutors have had mixed results when their case involves a
law-enforcement official.

Last year, for example, they did win convictions in a case that amounted to
one of the largest police-corruption cases in Jefferson County history.

Mark Watson, a former narcotics detective, is serving a 20-year sentence
after pleading guilty to 299 felony counts in January 2003, including
burglary, theft and using photocopied judges' signatures to create bogus
search warrants. His former police partner, Christie Richardson, is serving
five years on probation.

But a former Jefferson County corrections officer, Timothy Barnes, was
found innocent in October 2002 of murdering Adrian Reynolds, an inmate in
the Jefferson County Jail.

And, in the case seen as most similar to the Mattingly indictment, a white
Jefferson County police officer who fatally shot an unarmed and fleeing
black teenager in 1989 was not indicted.

Two grand juries declined to indict Larry Bush, a former Jefferson County
police officer who killed 17-year-old John "Jay" Lewis during a robbery
stakeout.

Angry community members at the time theorized that grand jurors sympathized
with Bush because he was a police officer. Bush had said he shot Lewis when
Lewis put his hands up to his chest.