Commentary: Columnist Just Doesn’t Get It on Need for Impartial Investigator

The title of Bob Dunning’s latest column really says it all: “No matter who investigates, someone will be unhappy.”  You can interpret the title in two ways, and each way is dismissive.  One interpretation is that the complaints against John McGinness are not legitimate, and the other is that because someone will always complain, it doesn’t really matter whom we hire.

Bottom line after reading his column – I just don’t think on a fundamental level Bob Dunning really understood the complaint against John McGinness being hired by the city of Davis to investigate the Picnic Day incident.

He writes, “Some folks had already announced ahead of time that they’d reject McGinness’ findings out of hand, accusing him of a strong bias in favor of law enforcement.”

Since, once again, he’s probably referring to me, one of the problems with that statement is he ignores the reasoning why some might believe that the former Sacramento County Sheriff has strong bias in favor of law enforcement.  Mr. Dunning implies that it’s simply a law enforcement background, and I can tell there were a number of people that could have been named that I would not have dismissed out of hand.

The problem was not just Mr. McGinness’ law enforcement background, but his dismissal of a racial profiling study, his handling of excessive force cases while at the sheriff’s office and his frequent commenting in opposition to claims of police brutality in the media.

In my search of the public record, I couldn’t find a single case where he came out in criticism of a police officer’s handling of an incident.  NOT ONE.  And I’m not just talking about while he was on the force, but afterwards as a consultant.

So, at the end of the day, it was not so much that the Davis PD hired a retired law enforcement officer to investigate, but that they hired this particular one.  Mr. Dunning never acknowledges this.

Mr. Dunning instead pushes back, “In fact, the case can be made that to truly understand the actions taken by Davis police officers in this incident and perhaps make constructive recommendations, a law enforcement background would be helpful to any investigator.”

Yes, but we have hired a police auditor who is a lawyer with 20 to 30 years of experience in police investigations, with none of the taint of John McGinness.  Mr. Dunning never once mentions that.

Instead, he argues, “The problem, of course, is that anyone with a law enforcement background immediately will be accused by some folks in our community of having a bias toward the police.”

Once again, he tries to de-legitimatize the legitimate concerns about John McGinness by throwing it back into a lens of “bias” against the police rather than legitimate concerns about this particular individual.

“The possibility of such a bias is a legitimate concern, which is why a considerable amount of due diligence is necessary before settling on a final selection,” he continues, without acknowledging the obvious – due diligence was not done here, either on the part of the city manager and/or city attorney.  To that there are crickets on the part of Mr. Dunning.

Instead he resorts to saying “it’s pretty much a foregone conclusion that no matter what a yet-to-be-hired investigator comes up with, someone is going to be unhappy.”

But isn’t it still better to have the best possible and least impeachable investigator?  Again that’s the big missing thread in his article.  He attempts to discredit the critics here, largely me without naming me, by painting with an overly broad brush.

Mr. Dunning further illustrates his missing point by writing: “Some are also questioning why an outside investigator is even needed in the first place. Presumably, the Yolo County District Attorney’s Office is already actively investigating this case as it decides whether to proceed against those arrested and bring this case to trial or to some sort of pretrial resolution.”

Does Mr. Dunning not understand the difference between an internal investigation into the actions of police and the criminal investigation into the actions of the accused?  I mean, this is a fundamental distinction.  There are parallel investigations going on here and, with respect to Mr. McGinness, we were only talking about the internal investigation, not the criminal one.

Bob Dunning does seem to understand that the comments by the former sheriff regarding the Civil Rights Act were “over-the-top.”  That was certainly the straw that broke the camel’s back.  But our understanding is that, even before the news broke on the Vanguard on Monday, the council was already questioning the wisdom of this choice.

The bottom line here is that the city needed to find someone who could be reasonably fair and impartial.  John McGinness was far from that person and his hiring has greatly damaged trust in the process.

If you believe that someone will always be unhappy, that’s a recipe for accepting mediocrity bias.  We cannot eliminate either and we cannot please everyone all the time, but that doesn’t mean we shouldn’t try to find the best person to do this job – and I can comfortably that say whoever that person may be, it was not John McGinness.

—David M. Greenwald reporting