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.”
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