Re-viewing Video Evidence and Police Violence in the Criminal Courts in Turkey

Abstract

This article offers an analysis of audiovisual evidence claims in the struggle for identifying and documenting police violence in Turkish criminal courts. Focusing on a fatal police shooting in an urban district predominantly populated by leftist groups and marginalized communities, it aims to illustrate the limits of both criminal trials and audiovisual technologies of proof. The “culture of impunity” has been the prevailing framework to describe courts’ denial of the ongoing violence of law enforcement. Instead, this article pays attention to the formation of facts, regulation of sensory perceptions, and affective engagements in the courtroom. Drawing on the ethnographically grounded examination of the hearings and the case file, I argue that criminal trials establish the particular legibility of video evidence and police violence. Furthermore, the breach between the ways of seeing, hearing, and interpreting these media serves to delineate different political communities, challenging the assumed unity over which the law has authority.

In October 2015, Dilek Doğan, a 24-year-old woman, was killed in her home in Istanbul during an antiterror raid against an outlawed Marxist-Leninist organization. The police department claimed that the special forces had targeted the house to apprehend an alleged fugitive and potential suicide bomber in a district known for being a haven for socialist organizations. Following the fatal police shooting, a video footage taken by one of the officers was leaked. Doğan was apparently shot after asking the police officers to wear galoshes inside the house. The video failed to capture the shooting scene, but it recorded the sound of a gunshot and the horror, shock, and outrage of the household. This leaked footage was not considered the most transparent and precise evidence; yet it was widely disseminated, amplifying the public life of the ensuing trial.

Only one police officer was put on trial. He was charged with “intentional killing by act of omission,” a murder caused by an officer's failure to perform their duty. Despite the heavy police presence and security measures in and around the court, many people came to support the family during the hearings and officially monitor the trial. On hearing days, groups of protesters gathered at the gate of the courthouse (also known as the Justice Palace), where the riot police dispersed the crowds using tear gas and water cannons, and detained people for “obstructing a police officer.” Several human rights organizations and lawyer's associations demanded to be included in the trial as intervening parties to closely observe the criminal proceedings. They called out the court for protecting the murderer and obfuscating the evidence. The hearings were interrupted by police brutality toward both the witnesses and the observers in the courtroom. Citing “public security” considerations, the judges decided early on to hold closed hearings for the rest of the trial. Their verdict, eventually, determined that the shooting was a reckless killing, which is defined in the penal code as “causing death by reckless conduct” and has the mildest form of culpability.

Doğan's case is one of many incidents in Turkey where police arbitrarily use lethal force against dissidents, members of radical leftist and Kurdish movements, and the people presumed to be related to them. Typically, these incidents are followed by the contentions about their representability in the legal domain and result in the lack of legal accountability (Tahincioglu, 2021). Major transformations in the country's security regime and bureaucratic institutions, which started in the early 2000s (Cizre, 2008), did not change this state tradition. On the contrary, adjustments made in police laws extended the prerogative powers of the police and their right to use firearms in accordance with the global tendencies of “efficient” security policies and antiterror laws. ¹ At the time, these transformations were wedded to police reforms by focusing on the issues of human rights, accountability, transparency, and good governance as part of the country's attempt to join the EU (Akarsu, 2018; Babul, 2013). While the reports on police brutality—ill-treatment, torture, and use of lethal force—were rising in the country, the means of documenting such violations seemed to be “progressing” (Sinclair-Webb, 2008). Police camera recordings or CCTV footage often constitute powerful evidentiary claims for the victims that initiate prosecutions, but still the charges in the abovementioned cases largely failed to match the gravity of the crime (Atılgan and Işık, 2012). Over the last decade, as police violence gained more visibility and targeted broader segments of society, the absence of effective mechanisms of legal accountability became even more explicit and overt. ²

Drawing on Doğan's case as an example of police killing in an often targeted district, this article aims to illustrate how the increasing role of audiovisual materials entangle with courts’ repetitive “failure to see” the police violence that targets people deemed as political threats. Impunity has been the prevailing framework to describe the courts’ denial of the ongoing discriminatory violence of law enforcement in Turkey (Dinçer, 2020) and around the world (Jauregui, 2020). While offering significant accounts of the procedural contradictions and legal impasses, the language of impunity can easily get trapped in liberal legal discourses that serve to criminalize the political nature of the conflict. Various scholars shift the focus to the ways politically and socially pre-established lenses operate in courts, especially when facing the evidence that appears to be irrefutable proof of police brutality and use of lethal force. Judith Butler (1993), for example, points to the racist episteme in courts and elaborates on how “racist organization and disposition of the visible” structures what it means to see as well as what can appear within the horizon of dominant perception (p. 206). For Shoshana Felman (2002), these forms of juridical blindness are “built-in cultural failures” and imply the “political prescription of not to see” (p. 83). In Allen Feldman's (2015) analysis, not only visual but any form of factual claim in the courtroom is situated within a particular culture of perception and anesthesia. He argues that “the communicative and semantic legitimacy of heteronomous sensory capacities are politically stratified, if not voided, across lines of race, gender, class, rightlessness, religion, geography, and nationality” (p. 9). This uneven field of the perceptible also configures the admissible forms of seeing, hearing, speaking, and meaning-making in the courtroom.

Analyzing the ways in which the video evidence operated in Doğan's case, I argue that the court's failure to see is not only produced by the uneven field of perception and the exclusionary episteme, but that it is generative and operative in shaping them. After outlining my methods, I elaborate on two theoretical trajectories that conjointly guide my analysis. I begin by pointing to the unarticulated premise of criminal law and its limits for the dissident and racialized communities in Turkey, which surface as courts try to address the violations by state officials. My intent is to contest who constitutes the body politic and is part of the community that the law claims to govern. Then, I inquire into the limits of audiovisual material as evidence—especially when they relate to state-led violence—by emphasizing their functions beyond making truth claims in the prevalent visual regime. Expounding those limits both together and in relation to one another is significant to unsettle the normative conceptualization of criminal trials and evidentiary procedures in the courtroom. Video evidence which typically occupies a privileged position of achieving closer approximations to reality in the courtrooms is not only frequently utilized to construe events in divergent ways but has affective capacities that exceed juridical frames. I suggest that particular engagement with video evidence of police violence and regulation of its perceptibility and affective force through criminal trials reinforce different political communities. My analysis illustrates how the divergence among opposing ways of seeing, hearing, interpreting, and making sense of these materials not only ties communities and different bodies together but sets them against each other as well. In other words, by trying to establish the terms of legibility for police violence, the courts do not deny the actuality of violence and its wider impacts. Exposing the limits of both criminal trials and audiovisual technologies of proof, they partake in delineating the political community that the law presumes and cement the boundaries against the ones who do not belong to this assumed unity.

Note on Methods

My research combines ethnographic tools and textual analysis. I conducted court observations in the hearings accessible to the public and had in-depth interviews with Doğan's attorneys in 2016 in Istanbul. The group of lawyers was also part of the Progressive Lawyers Association which systematically monitored human rights violations and represented the family as a separate legal team alongside the public prosecutor. Although attending the hearings was crucial for me to examine different registers of truth beyond the official legal documents, the restrictions to access—such as the decision on closing the trial to the public—were also important in shaping my analytical tools. These limitations guided me to problematize the efforts of courts to seclude a case and ask how witnessing a legal process could be another site of struggle. The other main component of the research involves the analysis of the case file, including the official transcript of the hearings digitally recorded by the forensic experts. While this is not a consistent practice for every case file in Turkey, Doğan's attorneys insisted on having these transcripts alongside the official records of the hearings prepared by the court's secretariat, which presented the account of the hearings from the judges’ perspective. These documents therefore illustrate the discrepancies between the ways in which the conflicts are formally filed and expressed in the courtroom.

Margins of the Courtroom

The lack of police accountability is one facet of Turkey's deeply rooted tradition whereby the courts refrain from incriminating law enforcement and state officials. It is an acknowledged practice of judges and public prosecutors to act and make decisions in the belief that they defend the state's “sacrosanct” interests (Sancar and Atilgan, 2011). This common tendency is evident in cases when courts try to adjudicate violence carried out by the police, and even more so when the injured party is framed as a threat to the state. In such cases, the line that distinguishes the prosecutor from the prosecuted not only gets indistinct, but the alignment of the police, state, judges, and the prosecution seems to collaboratively build up a “shield” (Dinçer, 2020). Employing an array of techniques to protect perpetrators, courts become challenging sites where it is difficult to disrupt this shield of protection. Furthermore, as courts occasionally address the “excessive use of force,” “negligence,” or “accidents,” and sometimes even indict officers, for certain groups of citizens the police violence is systematically rendered legitimate, if not legal.

The way Doğan was framed intelligible as a police target was founded on her spatiopolitical registers. Like other Alevi-Kurdish working-class districts of urban cities in Turkey, Doğan's neighborhood Küçükarmutlu was historically marked as a space of socialist organizing and associated with radical left organizations (Gönül and Cörüt, 2007). It is beyond this article's scope to explicate the historical account of violence toward different ethnic, racial, and religious communities as well as the oppression against leftist movements in Turkey. The Kurds, Alevis, and people associated with radical left have long been and are still considered the “enemies within” the country in different ways, posing political threats for the hegemonic establishment of Turkishness and state authority. ³ Urban districts populated by these communities constitute not only the peripheries of the city, but the spaces of the oppressed and political dissent. In her ethnographic studies, Deniz Yonucu (2018) shows how the recurring police raids in these districts have instituted a form of militarized spatial control. Borrowing Veena Das’ conceptualization of the “state's margins,” she argues that these neighborhoods inhabited by the stigmatized segments of the populations in Turkey “have been harbingers of the emerging and shifting forms of police violence” as well as of the “ever-growing lawfare which gradually started shifting to the center over the course of years, now targets members of the opposition from various class, ethnic, religious, and political backgrounds” (p. 4–5). In that sense, the neighborhoods situated on the margins like Küçükarmutlu reveal a form of spatial embodiment of dangerous others and enmity in which law enforcement re-founds its order.

This article problematizes the ways courts assess police violence toward the communities that are prefigured as political threats and trace the emerging margins in the courtroom. The literature on trials has shown that particularly “high-profile” trials tend to crystallize the existing social and political conflicts beyond the determination of someone's guilt or innocence (Chancer, 2005; Maxwell, 2014). Critiquing liberal legalism, many have challenged the view whereby criminal trials are mere interpretation and neutral application of law (Brown and Halley, 2002), and have taken issue with the presupposition of political unity over which the law has authority (Bilsky, 2010). Structured by the asymmetry of “giving” and “receiving” the law, the trial, according to Emilios Christodoulidis (2004), depends on the “institutionalized power of those who speak in our name” (p. 190). As he states, far from being a neutral deliberative process, the courtroom maintains the “irrepresentability of dissensus” in which certain political voices are bound to be unheard and delegitimized. Awol Allo (2015) sees the courtroom as a hegemonic space and underlines that different political subjects occupy unequal power positions in the process of meaning-making within the court's order of representation and the epistemic universe. Building on these accounts, I treat the trial of the police officers in Doğan's case as an instance by which political communities are differentially delineated. I further intend to dig out the very mechanisms of courts that shape and reshape our perception, rendering certain claims unintelligible, inaudible, and invisible.

Contested Visual Regime: Video as Evidence and as Affective Force

Audiovisual technologies—more specifically, photography and video evidence—have emerged as promising tools in the absence of legal accountability, as it is commonly experienced with the state-sponsored crimes. The power of these media stems from their privileged position when making truth claims. In courts, videos have gradually come to be treated as “nonsubjective vision” (Schwarts, 2009) and “silent witnesses” which speak for themselves (Golan, 2008) with the ability to depict unmediated truth (Haldar, 2008). Even if we reject the function of audiovisual materials as the representation of the objective reality, their documentary force is difficult to dismiss. Many scholars draw attention to the ways audiovisual materials can be instrumentalized to amplify the visibility of the systematically denied forms of violence and cultivate audible claims against them. ⁴ Working on the theories of media and human rights, Thomas Keenan (2014) insists on the argumentative force that the audiovisual evidence have in the legal forum albeit the presentational conditions which may alter the meaning of the evidence in question. In his formulation of counter-forensics, evidential promise lies within the context-dependent reading of the records which should be operationalized as political struggle itself. As such, audiovisual technologies can verify and confront state-led violence, which is a form of violence that also entails the monopoly of its identification and assessment in the courtrooms.

The relation between the truth-revealing premises of a video and legal judgment is never direct, immediate, nor does it reflect an impartial process. First and foremost, the recordings of visual and auditory data are mediated through institutional legal frameworks as evidence with a documentary value in courts. The set of discourses and practices in the legal domain involving distinct administrative procedures and expert language structures our ways of seeing and understanding. Charles Goodwin (1994) calls this phenomenon “professional vision.” Analyzing the police beating Rodney King captured on video, he examines the institutional codification of the footage capturing police violence against the Black motorcyclist. The specific reading of the video tape in court which led to the acquittal of the police officers in 1991, he argues, reveals the uneven allocation of “power to legitimately see, constitute and articulate alternative kinds of events” (p. 626). While the interpretative openness is maintained to a degree, the official deciphering and authorized narrative attached to the visual evidence is generated by the legal authorities, constituting the narrative as a legal fact.

This legal agency accorded to a photography and video tends to override other forms of knowledge and evidence in courts (Silbey, 2010), including verbal testimony that can be considered their traditional counterpart. ⁵ When a witness or even survivor testimony is not directly corroborated by the audiovisual technologies of proof, it easily becomes questioned or disregarded. Besides, the sense of vision occupies a privileged position within the perceptual hierarchy when interpreting these forms of evidence in line with the ocularcentricism of modern legal institutions. ⁶ The audio portions of a video, for example, are often neglected, although they play a unique role in audiovisual combinations. Against this inferior positioning of the audio, a film theorist Micheal Chion (1994) contends that sound recordings—whether deemed as speech or noise or silence—are not only distinct technologies offering distinct knowledge about an event, but they also inscribe affect and can transform how the visual knowledge is perceived. Still, favoring visual legal artifact and treating vision as the translation of singular truth usually result in rendering multisensory forms of knowledge into visual formats (Mulla, 2017). These hierarchies embedded in the prevalent visual-evidentiary paradigm become disconcerting in cases that involve complex forms of violence. Exploring the representational regime of state torture in different contexts, Hedi Viterbo (2014) demonstrates that in the absence of accurate and transparent visual records, states easily invalidate, disregard, and deny such violence and sustain impunity for the perpetrators. Seeking proper and precise visual representation, in that sense, may unwittingly conceal grave violations by obscuring their context and wide implications which are not always clearly visualizable.

Accompanied with professional vocabulary and evidentiary hierarchies, videos presented in the courtroom are also immersed in a particular visual-perceptual regime. This regime, in Joseph Pugliese's (2006) words, “materializes the discursive relations of power that effectively constitute, regulate and determine what it is we see” (p. 3). Numerous examples across the world resembling Rodney King trial illustrate how legal reasoning renders already racially and politically marked bodies as the sources of danger in videos capturing “police use of excessive force.” Scholars of critical race theory underline the histories of encounter and relations of power that shape our perceptual practices which frame certain people as hostile before they even act or speak (see Browne, 2015; Yancy, 2017). The sense of sight, therefore, does not depend merely on a subject's cognition, nor is it purely formed through the legal interpretation of a visual material during trials. As Ariella Azoulay (2010) argues, seeing is a situated social practice in which other people's gaze partake in the formation of what can be seen. There is a shared sensory fabric in which videos are introduced. What can appear and be heard within the horizon of dominant perception is informed by varying systems of social and political domination (Feldman, 2015). However, for the same reasons, these sensory perceptions remain contested and contestable. The complexity of seeing, hearing, and making sense of police violence as well as the targeted bodies in the courtroom is implicated both in the unevenly shaped perceptibility and regulation of this perceptibility. While the former makes the legal interpretation of these media dependent on the existing structures of domination, the latter points to a site of struggle.

The courtroom is a peculiar site that allows the contestation among conflicting perceptions to be seen and heard. While the competing ways of seeing and knowing form the process of constructing legal facts, the live quality of the trials facilitates different registers of truth and implies different functions. Scholars who have explored the embodied performances in courts and theatrical aspects of the trials suggest that courtrooms hold the potential of catharsis beyond the legal standards (Felman, 2002), promulgating emotions and subjective narratives along with the forensic factual claims (Cole, 2010). This setting of a public forum allows the entangled relation of voices and gestures, as well as affect and emotions in courts, which are irreducible to legal terms and likely to challenge the existing evidentiary paradigm. In a similar vein, the notion of truth-telling through audiovisual materials, or their use for uncovering the authentic reality of an event, would be a narrow account of how the audiovisual testimony operates. It is important to ask further why and how they “affect actors differently than other forms of testimony in the courtrooms” (Bens, 2018: 11).

The negotiations over videos, despite their firm evidentiary claims, are not subsumed by the conflicting interpretations and deliberations on these objects. The force of the audiovisual objects also thrives in what is not constrained to discursive registers but felt visceral, embodied, and sensed. Visual materials “not only show but also produce intensities and provoke bodies” and “call the viewing body into relation to them through the capacity to affect” (Richardson, 2016: 75). While this definition designates affect as elusive and beyond definitive determinations, affect can also entail more articulate forms such as an emotion, a thought, a memory (Douglas and Matthews, 2018). ⁷ In Sara Ahmed's (2014) analysis of affective economies, affect is a force that does not reside positively in any one body, subject, or object and it is “produced only as an effect of its circulation” (p. 120). She contends that the circulation of affect and stickiness of emotions is what creates the effect of boundaries between bodies and worlds. This article analyzes the video evidence of police violence introduced in the legal domain as affect-laden process that involves irrational or a-rational forces considered to be outside the law. Along with making truth claims, I trace how audiovisual objects are capable of moving bodies, elicit emotions and collective feelings, thereby interfering with the everyday routines of legal institutions. I argue that the affective force of these evidentiary materials in the contested visual regime of the courts contributes to the formation of different communities by crystalizing and defining their surfaces and sticking them together.

Police on Trial

Dilek Doğan's house in Küçükarmutlu was one of the 16 places raided that day as part of the antiterror operation allegedly conducted against a potential suicide attack. In the early morning hours, as heavily armed special police units were searching for the suspect, she was shot by the police in front of her family. Following the shooting, the Istanbul Police Department released an immediate statement:

As a result of the uproar caused by the family members during the house search and the brawl caused by M.D.'s [Doğan's relative] attempt of grabbing the gun of the officer who oversaw the security of the operation, D. D. was injured by a bullet hitting her chest. (HRA, 2015) ⁸

The list of allegations filed against the police officers included intentional killing, intimidation, defamation, misconduct, attempt of tampering with the evidence, and attempt of impinging on the legal jurisdiction. The Criminal Judgeships of Peace enacted a decision of nondisclosure. These courts in Turkey are responsible for implementing preventive measures during an investigation if requested by a public prosecutor. Officially asserting “the need to prevent any damage to the state,” this initial order of nondisclosure restricted access to the investigation file not only for the defense counsel but also for the complainant and individuals affected by the crime. Against a backdrop of confidentiality, however, a video covering the raid that night was leaked before the trial. Doğan's attorneys made it public with a press conference and initiated its wide circulation.

The video starts with a scene of armored police with heavy weapons walking toward a house. The camera follows behind the officers as they go inside. When the police ask about the suspect, the people in the house insist that they have never heard of that person, as they reach for their IDs and remind the officers to wear galoshes before stepping inside. The view then switches to another frame from inside the house. After this short break caused by the cameraman's entrance, the footage continues with shaky scenes covering the thorough house search. In one of the bedrooms, we see a man complaining about the recurrent wrongful searches. As the search continues, a few indistinct noises and murmurs about the galoshes are heard in the background. All of a sudden, as Dilek Doğan is heard asking: “What are you doing?”, there is a loud, piercing sound of a gunshot. When the camera pans toward the staggering noise, Doğan appears lying on the floor, her family screaming in horror. The camera moves outside once again, showing the doorstep, where the outraged relatives struggle to repel the officers by throwing shoes and chairs. The video ends as the officers start to draw back.

Doğan's attorneys were “astonished by the release of such a video,” which, in their opinion, refutes the police testimonies and “shows the atmosphere in the house that night and creates a common judgement for everyone who has seen it, despite the absence of the shooting scene” (Interview, May 11, 2016). The video was also crucial because the testimonies of the family members—who were the first-hand witnesses of the event—were invalidated. In this context, the availability of the audiovisual material ensured that the case attracted broader attention so as to oppose the predictable denials. Living in Küçükarmutlu means, as one of Doğan's relative emphasized, “being way too familiar with these operations.” ⁹ Another relative explained the context of such operations: “We know the police biases against us and contrary to the way they want to depict it, there was no confrontation or any provocation at all.” ¹⁰ Similar issues were raised by the people who gathered outside the hospital where Doğan stayed until she lost her life (HRA, 2015). During that week, apart from the frequent visits to the hospital by human rights organizations, MPs and political organization, there were protests condemning systematic police brutality which regularly met with more violent police actions carried out in the name of “preventive measures.”

When the trial started off in the Istanbul Assize Court (also known as Heavy Criminal Court or High Criminal Court), the courthouse was packed. ¹¹ Dozens of intervening lawyers, chairs of several Bar Associations, members of political organizations, a few MPs and observers from national and international human rights associations were trying to enter the courtroom along with the family's neighbors, friends, relatives, and other supporters. While the crowd could not fit in the courtroom, the police officers in plainclothes were inside for “security reasons,” preventing some people from witnessing the trial. The public prosecutor indicted the accused police officer on intentional killing by act of omission, dismissing the charge of qualified intentional killing and the complaints about the spoliation of evidence. Even the charge of intentional killing by act of omission, in most of the cases in Turkey, leads to being jailed pending trial. Potential evidence tampering is one of the major reasons for this procedure. In this case, despite the continuous objections, the suspected police officer was not arrested. For Doğan's attorneys, this was yet another sign that “the prosecutor is being dressed up as the defense counsel.” ¹² Still, they counted on the video evidence. “We should all be grateful for the video because it will bring justice,” a lawyer asserted, as it was about to expose the contradictions in the police testimonies. ¹³

In line with the official statement issued by the Police Department, the defense counsel contended that there had been a brawl and the gun got fired when a family member attacked the officers. Aside from these initial counteraccusations, the emphasis was on the alleged insults of the family against not only the police but the state as well. After all, the police claimed: “It was a neighborhood supporting the terrorist groups.” ¹⁴ That is also why one officer stated: “As the strike team, we were extra cautious and concerned with terminating any form of threat.” ¹⁵ The testimonies of the other witness officers largely repeated and supported the narrative of the defense, underlining the offensive language and attitude against the police. Their statements during the hearings were frequently interrupted by the audience shouting: “Lies! You are all lying!”

For Doğan's attorneys, the video proved that there had been no brawl, provocation, insult, or any attack. For them, the sound filled the gap left by the missing scene in the video. They particularly marked the calm tone in people's voice and the lack of any loud noise that a rough fight would cause, which would have been on the records:

Is this a silent film production? There can be no such thing; it [noise] should be there in the video. I mean, the hustle would have been certainly revealed by the camera through some sort of a sound… I would like to strongly underline that you should be paying particular attention to sound. When you watch this, when you listen to the sounds and see the images, you will face the murder! ¹⁶

The judges agreed to display the video evidence during the open trial and the screening was set for the second hearing. In the crowded courtroom, the accused police officer was missing due to medical reasons. Doubting this dubious excuse, the audiences were yelling: “Where is the murderer?” Doğan's attorneys demanded that the video should be shown by freezing it at certain times to expose the contradictions in the suspected officer's testimony. The footage was displayed on the screen behind the judges so that everyone in the room could see it. The attorneys explained the scenes in detail. Before the shooting in the video, a relative standing in the back of the room started to yell at the judges: “We know you’re not going to bring any justice! It's written all over your face!” From that moment on, the courtroom was filled with outcries for “real” and “people's” justice. Other familiar chants followed: “Murderous police!” and “Murderous state!”

A few people from the audience, including the relative who had questioned the court's impartiality, were dragged out violently by the plainclothes police officers. As they were struggling not to leave the courtroom, the door was broken. From that angle, those of us sitting inside could see the riot police approaching. The judges left the room, ignoring the people who were requesting that the trial be resumed. There were indistinct grumbles: “We know they’re not going to bring any justice but we’re here anyway.” After a recess, the judges decided to hold closed hearings for the rest of the trial, citing “public security” reasons. They did not explain what the particular public security risk was in that case. Along with Doğan's attorneys, the intervening lawyers and people in the audience objected to this decision as the riot police was approaching outside. The hearing ended with the detention of everyone who had resisted to leave the courtroom, including some of the lawyers representing the family.

For the subsequent five hearings, the presence of “anyone who is not directly affected by crime,” including the MPs and observers from human rights associations, was prohibited in the courtroom. The indicted police officer did not also attend the hearings in person but joined it remotely by video link-up (known in Turkey as Ses ve Görüntü Bilişim Sistemi, SEGBIS). The court rejected all attorneys’ requests that the judges review these decisions on the grounds of publicity and necessity to have face-to-face confrontation. The attorneys reiterated that the trials were “not only about the uttered words […] but about the psychological impact, the emotional state,” and asked if the judges “would have reached the same verdict when facing the family and watching the video in the courtroom together with them and the audience” (Interview, May 11, 2016). That is why the denial of access and publicity was considered detrimental on many levels.

In one of these hearings behind the closed doors, another video from the raid emerged. Upon the demand of the family lawyers to include the footage in the case file, the forensic experts appointed by the prosecution stated that it had been “erased in an unforeseen way.” ¹⁷ The attorneys insisted on sending the footage to the Criminal Laboratory of Gendarmerie General Command for further examination. Subsequently, the footage was restored and presented to the court. However, this time the court refused to hand it in as evidence to the parties, propounding “the possibility of violating the privacy of the individuals who are seen in the video.” ¹⁸ Prior to the last hearing, the restored footage was disclosed by the court only partially. In the revealed part, the unsteady camera shows a couple of officers around a police wagon. One of them is talking on the phone with his chief inspector and saying that a special operation officer has just shot someone. Amidst the sounds of firing guns in the air, some of the officers yell at each other to get the handcuffs and detain the family for “using violence and threats against a public official to prevent them from carrying out a duty.”

Indifferent to the various inconsistencies pointed out by Doğan's attorneys in different stages of the trial, the prosecutor's closing statement lowered the charge. Instead of the intentional killing by act of omission, the police officer was convicted of reckless killing. The minimum mandatory sentence for this “unintentional accident,” (6 years and 3 months of imprisonment) was approved by the court of appeals. Due to “good conduct” of the police officer, his prison term was later lowered to 45 days. ¹⁹ In the judgment, the legal reasoning was set forth as follows: “If it were to be an ‘intentional killing’ or ‘killing with probable intention,’ if the defendant had the intention to kill with the sudden anger, the defendant would have killed the other family member who was being critical of the police officers.” ²⁰ This verdict was not only upsetting but also, as one of the attorneys claims, “conscientious, legal and scientific denial of all evidence” (Yıldırım, 2017).

Interpreting and Negotiating Absences

The trial of the officers once again exposed the blurred boundaries among the state, prosecution, police, and the courts in Turkey. The judges, having significant contributions from the prosecutor, did not break the trend. They maintained the shield that protected state officials and institutions by only incriminating the perpetrator to the minimum degree possible, including not arresting him during the trial. As opposed to denying the police violence, this damage limitation principle implied the seeming existence of examination, evaluation, and deliberation. The ambivalent position of the court was based on its tendency not to harm the representation of the state while trying to sustain its image as a live forum for reaching the truth. Yet, the court's oscillation between these two poles at the same time was confronted with the people's insistent struggle for documenting and verifying police violence, as well as the ways the court aligned with suspected police officers. This struggle points to the boundaries of the law's assumed political unity which leave out the ones who are already “too familiar” with different forms of state-led violence.

The delineation of the unified political community in criminal trials is not a straightforward or uncontested process. As Leora Bilsky (2010) and Başak Ertür (2015) have noted, in criminal law—compared to constitutional law—legal mechanisms that identify who belongs to and who falls outside the assumed political community are disguised more effectively. For Bilsky (2010), the act of drawing boundaries of citizenship in a criminal trial is obscured because the criminal court “assumes that the issue of effective sovereignty has been settled” (p. 99). Ertür discusses this competence of criminal trials through “masquerading operations” that involve interpretation and application of substantive law to the case by establishing facts. “Masquerade” as a term here does not describe any practice that conceals the underlying truth. Instead, it indicates the ways in which the iterability of evidentiary rules and procedures in criminal trials—their power to repeat or be repeated—operate to congeal and give the law its force. That is to say, any verdict is presented as the outcome of a justifiable assessment and deliberative process in which the reiteration of these conventions and distribution of roles in juridical system become the sources of authority and legitimacy.

As Doğan's case exemplifies, the conventions for assessing and negotiating truth claims which enact the authority and legitimacy of courts are far from smooth. Following the rules of criminal procedure, the trial proceeded with investigating the suspects, gathering evidence, questioning witnesses, evaluating the narratives, defending, and arguing in the setting of a live forum. The video recordings were at the center of the struggle over documenting the police shooting in line with the evidential codes. As with any audiovisual materials which do not provide conclusive and fixed facts on their own, both pieces of footage were subjected to various deciphering strategies. These strategies involved multilayered interpretation processes that sought legal causalities based on the videos, regardless of their intelligibility. Rather than the content of the videos, the controversies were more concerned with the questions of what could not be seen and heard as well as what could be secluded as audiovisual evidence.

In the case of the first video, one is tempted to think that the lack of the exact angle of the shooting necessarily broadens the scope of interpretative dispute. Various claims were made by both sides about what the video showed and failed to show but the contested issue was the invalidation of sound—or the lack of sound in this case—as an evidential medium. The audio recorded by the camera microphone in proximity to the shooting conveyed the calm “atmosphere,” the people's mood and the general affective state before the shooting. Disregarding the inconsistencies caused by the audio recording and what the silence could say and show, the court's decisions were substantiated with the lack of visual indication of intentional shooting. Similarly, the partial footage that emerged nearing the end of the trial confirmed the utilization of certain techno-legal techniques as the very sites of conflict as well. This less sensational video, which was “deleted in an unforeseen way,” as some forensic experts stated, was miraculously restored by the persistence of Doğan's attorneys. Then again, confidentiality order based on privacy violation resulted only in its partial release. Such a journey of the videos affirms the resilience of these technologies in the face of their destruction and erasure, but it also portrays their limit since the court decides which part should be released and can be used as evidence.

Ultimately, both instances designate the police shooting as an “absolute accident” and entail techno-legal procedures employed by judges to uphold their objectivity claim. Formalizing their judgment is significant because “extensive juridical discretion needs to be disguised to maintain the recognition of law as autonomous, its arbitrariness and indeterminacy has to remain invisible” (Van Krieken, 2004: 15). The structure of denying police violence in the courtroom, therefore, involves techniques built around the negotiation and interpretation process of the audiovisual media, distinguishing the court from any naked exercise of power. However, Butler (2016) reminds us: “Interpretation does not emerge as the spontaneous act of a single mind, but as a consequence of a certain field of intelligibility.” As they point out, particular construal construction “helps to form and frame our responsiveness to the impinging world” (p. 34). The authorized way of translating these media in the juridical domain allows the court to assess legitimately available forms of police violence. This assessment is not only conditioned by the existing field of intelligibility, but the modes of deliberation subtly produce “the norms of recognizability” for police violence. Controversies about the competing evidence claims are therefore not simply adversarial discussions between equally audible and vocal parties. Likewise, the court's failure to assure justice not only concerns its inadequate fact-finding processes. Rather, struggles over documenting violence are embedded in the very process of crafting the legitimate interpretation of audiovisual materials which create reference points for detecting the excessive use of force by the police. The trial, in that sense, stages the gap between the accepted and inadmissible modes of interpreting, assessing, seeing, and hearing. While perpetuating the alliance of the state, courts, and the police, this gap serves to crystallize the boundaries of political communities that are absent from that alliance.

Screening Evidence and Threatening Noises

Trials are irreducible to the conflicting narratives, truth claims and deliberations, especially when the state's officers face charges of murder. Catherine Cole (2010) suggests that one of the striking functions of the trial is making “visible the direct confrontation between the powerful and the powerless” (p. 22). This confrontation not only allows the recognition of the powerless, but also publicly registers the dissident and opposition to the power. In a different vein, Felman (2002) discusses the trials’ potential to animate a narration—if not the language, the manner of expression—for the ones who are historically deprived of their voice. Rather than constituting the precedent in juridical terms, she argues, the courtroom offers the possibility to communicate in ways that resist the powerful or at least its legal narration and terms. The live setting of a trial, where the experiences of loss and injuries are reenacted, can convey articulate meanings concerning the conflicts. However, through its staged rituals, trials also unfold affective attachments, collective feelings, embodied responses, and immersive atmospheres in the courtrooms.

When the video evidence was displayed during the hearing in Doğan's case, the outcry of a relative and the subsequent reactions operated in registers beyond formal legal reasoning. Before the outburst, the court had been engaged in efforts to assess, negotiate, and articulate the audiovisual materials in question. In line with the conventions of the criminal trial, the shooting scene was about to get dissected into frames and interpreted in the courtroom. As an evidentiary object, the footage of the shooting is indeed a techno-scientific tool for the courts to evaluate and translate it into their own legal language. This legal language deployed with respect to the video evidence, however, can be predominantly a language that mutes witness testimonies and exclude those with a political claim about the inaccessibility of justice, as was in the Doğan case. As visceral and emotional reactions rupture the process of constituting legal facts, they upset both the narration of the court and its narrative forms.

The momentary disruption in the courtroom highlights the affective capacities of audiovisual technologies that exceed their mere facticity claim and documentary value. Alongside the powerful evidentiary claims, audiovisual materials also operate as objects with affective force that produce sensation, move bodies, and generate visceral responses. Echoing Ahmed's insistence on the “failure of affect to be located in a subject or object,” the affect here does not reside in the people observing the trial and it is not also the intrinsic quality of the audiovisual material in question. The collective engagement with the footage in the courtroom enacts the embodied responses in affective registers that cannot be fully contained by legal means. The circulation of affect between the audiovisual object and the viewers—the mediation among seeing, hearing, and showing—is what creates its value and force. It is this circulation that moves, reshapes, and mobilizes bodies in certain way, bringing them closer to some bodies and driving them against others. The body politic and its specific boundaries appear through these affective alignments.

The eruption in Doğan's case appeared as a renunciation and accusation of the court, as an appeal to another form of justice. The demand for “real justice” was not only radically divergent from what the court represented, but it made that divergence seen and heard. When Victoria Brooks (2019) describes “the courtroom organism,” she emphasizes “the sight of the stage and auditorium and acknowledgement of the boundaries,” which involves the sounds of accepted linguistic conventions, moments of silence and set of listening practices (p.23). Violating these carefully regulated boundaries of accepted modes of speaking and meaning-making, the outbursts during the screening of the evidence are mostly heard and registered as loud noises in the courtroom. In the eyes of legal authorities, this “disturbing commotion” upsets the proper stage and soundscape of the courtroom more than it stages an outspoken defiance. Certainly, it does not signify a radical political challenge or a transformation that breaks away from the conventions altogether. As Brooks argues, referring to the famous trial of the Chicago Seven, the momentary interruptions of the court processes might not be “sustainable” as they are forcibly realigned with the order implying the “impossibility of any change in the process or the space.” However, they can still be threatening for the settled world of law, a world which sustains itself through its rituals, esoteric language, technical procedures, spatial/material configuration, and soundscape.

As the doors of the court were literally ruined in the Doğan trial, defying the failure of justice mechanisms in the public hearing undeniably appeared limited and unsustainable. Nevertheless, denouncing the court disrupted the order of the visible, hearable, and sayable, which renders the court's failure as something ordinary. When tracing the politicization of courtrooms in different respects, Allo (2010) argues that “although the paraphernalia of legal justice setting the judicial mechanics into motion hardly survives the belligerent confrontation of radical political movements, the courtroom remains an essential performative site both for legitimation of domination and resistance to violence” (p. 50). As affectively, visually, and loudly discharged instances, momentary interruptions bear the potentiality to challenge and modify the shared perceptions with respect to the law's relation to violence if not its official account. That is why attending the hearings, being present in the courtroom and having access to the trial process is also about the possibilities of cultivating the form of embodied human perception that resists the order of representations and terms of recognition in courts.

Making legal proceedings less knowable and legible and enforcing this inaccessibility with police coercion during trial confirms the unreachability of the rule of law for the people who expect justice to be done on their behalf. The people who are brutally thrown out of the court are also drawn outside of its invocation and of the body politic. These varying forms of unreachability once again undermine the assumption that there is a political unity over which the law has authority. Furthermore, courts try to disguise this very undermining as they conceal not only the violence perpetrated by state officials but also the ways in which they deal with and deny such violence. When Feldman (2015) talks about the expelled sensory experiences and perception, he states: “Sensory stratification and deletion by state practices prepares the socio-cultural conditions of political apperception—the violence of politically blanking out violence and the collective capacity for its public witness, seditious recirculation, and dejustification” (p. 9). The insistence on making this case visible and audible, as the insistence on attending the court to see the (in)justice being done, also emphasizes the possibilities of subverting the structures of deniability incorporated into the deadly form of policing.

Conclusion: Seeing, Hearing, and Redrawing Boundaries

The law, as it is expressed in the workings of the criminal trial, can function as a smokescreen through which different forms of state-led violence can be obscured and go on. This is a critique leading to the various analyses of unlawfulness and traditions of impunity. I have tried to demonstrate that criminal trials are further complicit in these forms of violence by recreating the boundaries of the legal-political communities which are representable, visible, and hearable in the courtroom. Doğan's case illustrates these boundaries of the perceptible from which the official accounts of state killings are produced through a trial's engagement with video evidence. The conditions of intelligibility and perception of any evidence in courts are already shaped by the existing structures of dominations and the asymmetries of power. As conventions of the trial's truth-seeking function—which draw on and cover over these inequalities—are operationalized against the people who are deemed as political threats, the court seems to separate them from the representable subjects and their recognizable claims. In turn, the trial may become a process about this delineation and one's right to be hearable and visible in the courtroom against the court itself—which in Doğan's case implemented confidentiality measures, curtailed publicity of trials with coercive force and not only invalidated but secluded evidence claims.

Criminal trials which enact the state's power to enforce the law are critical ceremonial mechanisms of legal authority that reaffirm its means of legitimation. This affirmation holds the premise of ensuring people's right to know and access along with establishing truth around an event. When failing to assure even the appereance of these conventions of a criminal trial in police violence cases, the court, which is shaped by a certain culture of perception, partake in its formation. It does this in such a way that truth claims about police violence becomes not just limited, but imperceptible and thus dejustifiable. In these cases, the rejection of truth claims about the actuality of violence only constitutes part of the legal work. The courtroom also inscribes the disavowal of the experiences and expressions of the people affected by such violence as disruptions and noise. As such, the court crafts the domain of intelligibility by asserting the ways to validate certain sensory perceptions, thereby setting the terms for the routinization of police violence.