New York Times Calls For Independent Prosecutors to Investigate Officer-Involved Shootings

Family of Luis Gutierrez mourned the one year anniversary of his death in 2010
Family of Luis Gutierrez mourned the one year anniversary of his death in 2010

On April 30, 2009, Yolo County suffered its own controversial officer-involved shooting – of Luis Gutierrez, who in broad daylight allegedly confronted three undercover Yolo County Gang Task Force members with a knife, forcing them, following a chase, to shoot and kill the 25-year-old.

By November of 2009, the investigation, performed by the Yolo County District Attorney’s office, concluded, “When considering all of the facts and circumstances known to them at the time, the use of deadly force by the deputies was objectively reasonable and justified and therefore does not warrant the filing of criminal charges against Sgt. Johnson, Deputy Oviedo or Deputy Bautista.”

In a letter to Assistant Chief Deputy Jonathan Raven, Deputy Attorney General Maggy Krell concurs with the conclusions of the Yolo County District Attorney’s Office: “We reviewed your decision under an abuse of discretion standard. After a complete review of all available information, we have concluded that your decision was not unreasonable and thus did not constitute an abuse of discretion.”

However, those findings resulted in more questions than answers, as the Vanguard and a task force of individuals over the next year or so uncovered puzzling inconsistencies in the report, including witnesses that were suddenly deported before they could be questioned about statements that seemed to make little sense.

The Attorney General’s follow up was not a new or independent investigation, rather a review of the report itself, determining that the findings were not “an abuse of discretion.” Abuse of discretion is a legal term meaning “failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedent and settled judicial custom.”

We see the same problem at play now, in both Ferguson and Staten Island.

As the New York Times in a biting editorial this morning puts it, “It is a long-established and basic reality of law enforcement in America: Prosecutors who want an indictment get an indictment. In 2010 alone, federal prosecutors sought indictments in 162,000 cases. All but 11 times, they succeeded.”

But these results are different “when police officers kill unarmed civilians.” The Times notes, “In those cases, the officers are almost never prosecuted either because district attorneys do not pursue charges in the first place or grand juries do not indict, as happened most recently in Ferguson, Mo., and Staten Island.”

As the Times notes, the most obvious explanation is the point we raised in 2009: “The inherent conflict of interest that exists for prosecutors, who rely heavily on the police every day. Cops arrest suspects; they investigate crimes; they gather evidence; and they testify in court, working essentially in partnership with prosecutors.”

Given that, how do we expect prosecutors to oversee the conduct of their partners? We see the same problem with police attempting to police their fellow officers and it is why we have installed in Davis an independent police auditor – and there are similar oversight models across the country.

That does not mean that the prosecutors here are wrong – the problem is the perception is one of a conflict, and people who look at these results view them with skepticism. As the Times puts it, “Whether or not bias can be proved in a given case, the public perception of it is real and must be addressed.”

They offer a reasonable solution: “A law that automatically transfers to an independent prosecutor all cases in which a civilian is dead at the hands of the police. This would avoid the messy politics of singling out certain district attorneys and taking cases away from them.”

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They argue, “The police should be among the strongest supporters of this arrangement because both their authority and their safety are undermined when the communities they work in neither trust them nor believe that they are bound by the same laws as everyone else.”

While that seems like it would be true, our experience with police oversight bodies, car cameras and body cameras suggest that police fight against these kinds of mechanisms – even though the vast majority of the time these devices and bodies actually serve to validate their efforts and show that they were in the right.

New York Attorney General Eric Schneiderman on Monday wrote Governor Andrew Cuomo, citing a “current crisis of confidence in our State’s criminal justice system.”

He writes, “In New York, and across the country, the promise of equal justice under law has been eroded by a series of tragedies involving the death of unarmed persons as a result of the use of force by law enforcement officers. Many of these tragedies involve unarmed persons of color. All too often, the families of the victims and the members of their communities are left with the belief that our criminal justice system has both unjustly targeted and inexplicably failed them.

“This crisis of confidence is long in the making and has deep roots. But it is not a problem without a solution. A common thread in many of these cases is the belief of the victim’s family and others that the investigation of the death, and the decision whether to prosecute, have been improperly and unfairly influenced by the close working relationship between the county District Attorney and the police officers he or she works with and depends on every day.”

Here is the key point; the key is not whether “a local prosecutor, including one with understandably close ties to his or her fellow local law enforcement officers, is capable of setting aside any personal biases in deciding whether, or how vigorously, to pursue the case.”

Instead, “the question is whether there is public confidence that justice has been served, especially in cases where homicide or other serious charges against the accused officer are not pursued or are dismissed prior to a trial by jury.”

As the Times notes, “It does not require imputing ill motives to a particular prosecutor to perceive that, as Mr. Schneiderman put it, charging decisions are ‘improperly and unfairly influenced by the close working relationship’ between prosecutors and the police.”

They add, “The central issue, he said, is not whether a prosecutor is biased, but ‘whether there is public confidence that justice has been served.’ Too often, in cases involving civilian killings by police, there is not.”

And there is more. The Times adds, “District attorneys surely do themselves no favors when they change the rules specifically for police-brutality cases” – and this is the problem we pointed out in Ferguson.

The Times continues, “It is fair to ask whether the state attorney general is the most appropriate official to handle cases like these. For one thing, attorneys general are not as experienced in criminal litigation, but at least they do not work daily with the police department that might be involved in a killing. Regardless of who takes on the role, the point is to enhance the prosecutorial independence in cases where deadly police misconduct is alleged.”

My view is that the Attorney General’s office is more insulated from public opinion and local factors than the police – but they are still prosecutors who rely on law enforcement. The best scenario would be to have an independent office whose sole job would be to review all officer-involved fatalities and determine whether the case should be prosecuted.

If you want to really get serious, you could extend the jurisdiction to all use of force complaints.

The issue really comes down to trust and I remember the Gutierrez matter well. As we examined that case, we had a ton of discrepancies. The police, for instance, attempted to establish that Mr. Gutierrez was a gang member and a dangerous knife man. They used the statement of a jailhouse informant to establish this, but he was soon deported.

Moreover, that narrative was inconsistent with the complete lack of criminal record for Mr. Gutierrez and his frequent interactions with law enforcement, none of which resulted in an arrest or so much as a noteworthy statement about lack of cooperation.

Ultimately, there was a lawsuit but the evidence pointing toward officer culpability was murky enough that the federal jury ended up exonerating the officers. But, even then, there were more questions than answers in that case and the investigation by the DA’s office was questionable, at best.

Removing that layer of skepticism would be beneficial toward creating a more fair process and that would benefit not only victims of police shootings, but probably the police themselves, in most cases.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Tia Will

    The best scenario would be to have an independent office whose sole job would be to review all officer-involved fatalities and determine whether the case should be prosecuted.”

    From a medical perspective, it is very straightforward. When there is a poor outcome, there is an internal investigation called QA the purpose of which is assessment of the individual episode with a view to prevention of similar outcomes in the future.  This process is generated internally by certain automatic triggers or by an individual calling for investigation of the case. It is not unusual for a doctor to bring their own case to the attention of QA reviewers.

    If there is a complaint against a health care professional or hospital by a patient, we do not rely on the internal processes, but go to mediation with an independent mediator. The key is independent. I have a hard time seeing any downside to outside investigation of a serious charge of use of excessive force. From my own experience, I am aware that a full airing of all aspects of a case before an independent party plays an enormous role in restoration of confidence, if not in any individual doctor, certainly in the in the system overall.

  2. Robert Canning

    Most use of force cases boil down to whether the officers were trained to the current policy for use of force (UOF) and whether they acted according to policy. If the policies are out of line, then that’s an issue. The California Department of Corrections was recently forced to revise (twice, in fact) its UOF policies because although officers were acting within the policies and trained to them, the policies themselves allowed excessive force, particularly against inmates with serious mental illness.

    From an historical perspective, UOF policies are a product of the society that hires the police and the nature of the threats. The UOF policies we have in effect today are different than those in the 1950’s. The era of increased crime rates (1970’s) engendered policies that allowed more and different types of non-lethal force and wider parameters for the use of lethal force. The courts have been loath to limit police use of force, often deferring to the police themselves as the best judges of how and when to use it.

    If the society demands that the criminal justice system use less force, it is up to us to weigh in and put pressure on them.

  3. zaqzaq

    “However, those findings resulted in more questions than answers as the Vanguard and a task force of individuals over the next year or so uncovered puzzling inconsistencies in the reform including witnesses that were suddenly deported before they could be questioned about statements that seemed to make little sense.”


    Why did you fail to mention the civil jury trial involving the Gutierrez death the jury found for the officers?  Are you suggesting that Ed Prieto has the ability to get an individual deported?  Aren’t visas available for necessary witnesses in a civil trial?  Didn’t the Gutierrez family have the opportunity to present evidence supporting their claims in an open court room and lost?  Failing to mention the civil trial gives brings into question the credibility of your story when you only tell half the story on a Yolo county death.  It shows the bias and prejudice against law enforcement in your coverage of criminal cases.

    The DA in the Ferguson case could have taken the course used by the local DA in the Zimmerman case or used in the Gutierrez case.  Instead he presented all of the evidence to a grand jury and then released the information from the grand jury to the public for transparency.

    I am also concerned about the political agendas of statewide officials such as the New York AG Eric Schneiderman and special prosecutors gone wild.  The special prosecutor in the Zimmerman case was only appointed due to the political pressure put on the governor.  And we are still waiting for Holder’s office to make a decision on that case.

  4. Davis Progressive

    the attorney general’s office is already set up to handle these kinds of cases, the biggest problem is that you need to give the office primary jurisdiction rather than review people.  david already laid out the downside of the “abuse of discretion standard” – they aren’t reviewing whether the investigation is accurate, they’re reviewing whether the right process and steps were followed.  not very helpful.  the other problem, notice that maggie krell was the investigating prosecutor, of course she got hammered for this when she ran for sac da, but the bigger issue is that you end up turning the case over to ambitious prosecutors who want to run for da, and you end up with cover up or the perception thereof.

    1. Anon

      The problem with having the local DA investigate police shootings is that there is a very symbiotic relationship between the DA’s office and local police, so that the investigation is not truly “independent”.  Each state probably ought to set up its own independent board to investigate police shootings.

  5. Anon

    See latest:

    I’m not sure how “objective” the DOJ autopsy report is in all of this.

    And of course there will be a DOJ investigation of the shooting, and I wonder how objective that will be.  See:

    And now protestors in regard to the Michael Brown shooting are stopping trains and turning violent:

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