Drug evidence slipped into trial over police shooting

By Pat Murphy

The Daily Record Newswire

A Chicago police officer shot and killed a robbery suspect outside a convenience store in 2004. It turns out that the suspect had drugs secreted in his mouth at the time of death, and somehow that evidence was admitted when the officer was later sued for using excessive force.

Even though it's hard to fathom the relevance of the drug evidence, the 7th Circuit yesterday decided that a defense verdict in favor of the officer and city should stand.

On Nov. 18, 2006, Officer Guy Nelson and his partner, Officer Sean O'Brien, visited a convenience store on the south side of Chicago that had been robbed multiple times by the same suspect. The store owner complained that police never arrived in time when he called, so Nelson gave the owner his cell phone number in case the suspect showed up again.

Later that afternoon, the owner called Nelson to tell him that the robbery suspect was in his store, along with two other young African-American men. The officer and his partner responded immediately, arriving just in time to see three men matching the owner's description exit the store.

According to the officers, they ordered the three men to stop. Two of the men complied, but the third man, Michael Smith, tried to walk away and refused to show his hands when ordered to do so.

Nelson testified that he drew his weapon when Smith continued to head away from the scene. At that moment, according to Nelson, Smith turned and grabbed at the officer's handgun. Nelson testified that he felt Smith's hand grab for his wrist and pull forward. Fearing that Smith was about to take his gun and turn it on him, Nelson fired one shot into Smith's chest. The young man died shortly thereafter.

Smith's family sued Nelson and the city of Chicago, claiming that the officer used excessive force. Before trial, the plaintiffs sought to exclude evidence that the medical examiner who performed the autopsy had discovered five small plastic bags of cocaine in Smith's chest cavity and trachea.

The medical examiner concluded that the packets had been secreted in Smith's mouth at the time of the shooting, and had moved to other parts of his body as a result of Smith's death struggles or during the autopsy.

Now, since there was no evidence that the officers had any inkling that Smith had drugs on his person, the plaintiffs argued that the drug evidence was wholly irrelevant. The plaintiffs certainly didn't want jurors to hear evidence that might lead them to think that Smith was perhaps a "bad guy" who somehow had what was coming to him.

But the district court allowed the evidence and the jury returned a defense verdict.

Thursday, the 7th Circuit concluded that the trial judge acted within his discretion in allowing the evidence.

Right off the bat, the court confessed that the admission of the drug evidence was troublesome, particularly in light of prior 7th Circuit decisions holding that knowledge gained after the fact should not be considered by jurors in deciding whether a police officer acted reasonably in resorting to deadly force.

"Taken at face value, these holdings would seem to indicate that the evidence of drugs in Smith's body should not have been admitted at trial," the court conceded. "After all, Officer Nelson did not and could not have known that Smith was hiding drugs in his mouth at the time he opened fire."

But the court found a path through its own precedent to arrive at the conclusion that the trial judge did not abuse his discretion. The key was the plaintiffs' presentation of eyewitness testimony contradicting Officer Nelson's claims that Smith failed to raise his hands and stop after he warned, "stop, police."

The 7th Circuit concluded that evidence that Smith had drugs on his person was properly admitted to impeach that testimony, bolstering the police officer's contention that the suspect did not follow his directions.

"Just as evidence of a gun would make it more likely that an officer saw a shiny metallic object in a suspect's hand, evidence of the drugs secreted in Smith's airway made it more likely that Smith acted as Officer Nelson testified, as opposed to the manner in which plaintiffs' witnesses testified. Smith's behavior was, after all, not ordinary behavior for a person encountering the police," the court said. (Common v. Chicago)

Published: Thu, Oct 27, 2011