The fate of police officers who kill often rests in the hands of the prosecutors they typically work alongside.
To win his election campaign and oust the top state prosecutor in Omaha, Nebraska, Don Kleine first needed to secure the support of an influential group of voters.
Promising a return to “tough on crime” priorities, and attacking the incumbent county attorney’s new rehabilitative programs, Kleine clinched the endorsements of the region’s major police unions – and their thousands of dollars in election campaign contributions.
Ever since his 2006 victory, Kleine has relied on the officers of those unions to help him convict everyday criminals. Omaha officer Alvin Lugod, for instance, was called to appear as a prosecution witness a dozen times, according to records released by Kleine’s office.
Yet when Officer Lugod was facing possible criminal charges himself in February for fatally shooting an unarmed man in the back, Kleine saw no reason to step aside. Instead, the prosecutor oversaw a secret grand jury process that declined to indict his colleague.
The case was one of 217 this year where a police officer who killed someone was cleared of wrongdoing in a process led by a prosecutor who typically works alongside the officer’s department. The total represented 85% of all killings by police that were ruled justified in 2015, according to a Guardian analysis. This week, the police officer who killed 12-year-old Tamir Rice last year in Cleveland, Ohio, was cleared in the same way .
Criminologists, civil liberties activists and lawmakers said the arrangements created serious conflicts of interest at the heart of the criminal justice system’s response to killings by police.
“Prosecutors work with police day in, day out, and typically they’re reluctant to criticise them or investigate them,” said Prof Samuel Walker of the University of Nebraska. Describing Lugod’s case as a cause for concern, Walker said: “A major change in our standard legal practice, and the structure of our criminal justice system, is required.”
In about one in three cases that were ruled justified, including Lugod’s, the criminal inquiry work was done by the officer’s own police department, meaning the evidence used to decide if an officer should be prosecuted was prepared by the officer’s coworkers. Only 12.5% of killings by police that were ruled justified in 2015 were handled completely independently.
Calls for reform have been intensified by unrest across the US following a series of controversial deaths over the past 16 months. Barack Obama’s White House policing taskforce recommended in May that regional authorities should allow independent or special prosecutors to handle killings by their police officers if they want “mutual trust between community and law enforcement”.
Kleine, the prosecutor in Omaha, oversaw the clearing of officers involved in four deaths in 2015 – more than any other district attorney in the US. Their cases only made it to Kleine’s desk because he successfully campaigned to scrap a decade-old state law that had barred him from taking charge when an officer in his own county killed someone, to avoid bias.
Legislators in more than a dozen states are now attempting to wrest responsibility for investigating deadly police incidents from local DAs and hand it to state-level or other special prosecutors. They argue that urgent action is needed to bring impartiality to the judicial system when officers of the state end someone’s life.
‘You’re gonna get shot!’
Danny Elrod brought the confrontation with Lugod on himself. One frosty evening in late February, Elrod approached the checkout at a Family Dollar store clutching some Slim Jim meat snacks. Then, the 39-year-old forcefully pushed aside the clerk and stole a handful of cash from the register.
Two minutes later, Elrod met Lugod and another officer one block away. Police said he falsely claimed to have a gun, and urged them to shoot. Elrod’s wife said he told them he was unarmed. “Don’t make me do this, don’t make me do this,” Lugod said, according to police, “you’re gonna get shot!” About 30 months earlier, Lugod had killed a day-release prisoner who allegedly reached for a handgun he had dropped.
In a frame from police dashcam video footage of February’s incident, Elrod is seen standing on the hood of a vehicle as an officer points his gun. Police said Elrod reached into his waistband and was then shot while making a “mid-air leap” to a nearby fence. He was struck twice in the back and once in a shoulder.
A 1984 US supreme court ruling holds that a police officer may shoot a so-called “fleeing felon” if he has “probable cause to believe” the suspect “poses a significant threat” of serious injury to others. Despite this, and a pending grand jury hearing, Omaha police chief Todd Schmaderer promptly gave his own public verdict. “It does not appear to be criminal,” he told a press conference.
Standing at the chief’s side was Kleine, the county prosecutor. All that mattered was whether Lugod reasonably believed at the time that he needed to shoot, said Kleine – “the fact that he may have been wrong in estimating the danger does not matter.” The grand jury decided Lugod had needed to.
Kleine did not respond to questions about his handling of the case. Omaha police declined to release inquiry files or dashcam footage that could confirm their account. Following an internal inquiry by Omaha police, Lugod felt the need to resign. But the department refuses to publish what it found, or disclose why their officer quit.
Before 2010, any killing by a police officer in Nebraska prompted the appointment of a special prosecutor, who could recruit three homicide detectives from outside the county to help investigate. This “removes the county attorney from the process”, according to an annotation to the law, ensuring deaths were reviewed for potential wrongdoing by outsiders rather than the officers’ own colleagues.
But five years ago the measure was scrapped by the state legislature following a lobbying campaign spearheaded by Kleine, who complained that special prosecutors were costing his county $20,000 a year, and his staff “would probably do a better job”.
Kleine has further reduced the opportunity for scrutiny by bunching cases together for consideration by grand jurors in swift succession. One day this month, they simultaneously cleared officers involved in six different deaths. When Lugod was cleared over Elrod’s death, so too were officers who accidentally shot dead a crew member for the television program Cops. While being filmed for the reality show, the officers accidentally struck him while confronting a man with a toy gun.
According to many of those who oppose local prosecutors handling these cases involving their own police colleagues, a centuries-old legal principle is being denied. Perhaps most famously articulated by US supreme court justice Felix Frankfurter in 1954, it holds that justice alone is not sufficient: “Justice must satisfy the appearance of justice.”
Under federal law, judges must recuse themselves from cases when his or her impartiality “might reasonably be questioned”. In a paper on the prosecution of police to be published in the Iowa Law Review next year, Kate Levine, an assistant professor of law at New York University, argues that prosecutors should be held to the same standard.
“If a defendant has any reason to believe the DA is going to go extra hard on them, or a judge is going to be particularly harsh on them, they can request a recusal,” Levine said in an interview. “But a police officer as a defendant is not going to complain about likely pro-police bias from a prosecutor.”
The DA’s client, the public, suffers because DAs have a “structural and unwaivable conflict of interest” when faced with investigating and prosecuting officers in their own jurisdiction, according to Levine, who proposes that they be automatically removed from all such cases.
Connections frequently run deeper than cooperation in securing convictions. Kleine’s biography states that the Omaha police department has called on him to teach “virtually every academy class since 1991” about criminal investigations. According to campaign filings, he has participated in charity golf tournaments that contributed thousands of dollars to police union coffers.
Among the 95% of district attorneys who are elected, many like Kleine receive valuable donations and public endorsements from police unions for their campaigns. The alternative, a “soft on crime” denunciation, can be electorally toxic. These unions frequently go on to provide legal representation for officers in fatal shootings handled by the same prosecutor.
Tony Rackauckas, the veteran district attorney in Orange County, California, has accepted more than $23,500 in donations from individual police officers, police political action committees (Pacs) or unions in his county. His cash haul from law enforcement officials was one of the larger amounts identified by a Guardian analysis of thousands of pages of campaign finance records from more than 100 DAs obtained under public records laws.
In an interview, Rackauckas was defiant. “You’re assuming that campaign contributions would require me to act differently because of conflict,” he said. “I can tell you, for one thing, it just doesn’t.” His chief of staff and former campaign manager, Susan Schroeder, intervened to say the notion that donations could create a conflict of interest was “offensive”.
All but one police department in Orange County have their officer-involved deaths automatically investigated and ruled on by the DA’s office. No officer-involved shooting in the past decade has resulted in criminal charges, Rackauckas said.
This year, Rackauckas’s office ruled two deaths justified. In one, 43-year-old Monique Deckard was shot 12 times by a group of Anaheim officers as she emerged from her apartment holding two knives during a paranoid-schizophrenic episode.
Deckard, a slight African American woman, had stabbed a woman at a nearby laundromat. The woman survived with superficial wounds. By the time Deckard emerged, her apartment was surrounded by six officers. Three officers opened fire, they said, because Deckard “strode quickly” towards them.
The shooting was the first fatal incident in Anaheim to be captured on police body camera, yet the footage has not been released to the public. Rackauckas declined to explain, other than to say it was “part of the investigation”.
It was the second fatal shooting of an African American in which officer Kevin Flanagan , who fired eight times at Deckard, had been involved. In 2008, Flanagan killed Julian Alexander, a 20-year-old newlywed, after mistaking him for a suspect in a police chase. Rackauckas’s office also ruled that shooting justified, saying that Flanagan believed Alexander threatened him. A civil lawsuit, however, was settled by the city for $1.55m.
The consequences of falling out of favour with the police lobby can be dire. In Texas, Dallas County DA Craig Watkins was unseated by challenger Susan Hawk this year after police unions ploughed tens of thousands of dollars into Hawk’s campaign, and officers took to the streets to knock doors for her. Their intervention followed the indictment of four police officers by grand juries under Watkins’ oversight in 2014.
Frederick Frazier, the chairman of the Dallas police association’s Pac, explained in an interview that Hawk was “a better fit for law enforcement”. He accused Watkins of trying to ride a wave of public dissent against police from August 2014.
“We’re very open about it,” Frazier, an investigator on a US Marshals Service fugitive taskforce, said of his union’s effort to oust Watkins. “After Ferguson, after Baltimore, Craig took the easier path, because it was popular. Going against the police was easier, because we became unpopular with the country.” Watkins did not respond to emails and messages.
Two officers in Albuquerque, New Mexico, charged with murder by district attorney Kari Brandenburg over last year’s fatal shooting of James Boyd , a 38-year-old homeless man with schizophrenia, were the department’s first to be prosecuted for a shooting. Their colleagues were furious.
Brandenburg said the department initiated a “hit job” on her after an October 2014 meeting with a police union attorney, where she said she intended to bring charges. They reopened a criminal investigation into past allegations against her including bribery, which she had denied and which the New Mexico attorney general later found had insufficient evidence.
Despite this, Brandenburg was disqualified from the Boyd case and forced to hand it to a special prosecutor. “In essence it was an attempt to get me to resign,” she said in an interview. “I think it was an attempt to take over the district attorney’s office so they could control decisions.”
The grand jury: ‘We don’t know what’s going on in those rooms’
The conflict of interest problem is compounded, according to critics, by grand juries. These secret panels, which vote on whether suspects should be indicted for crimes, are a medieval relic long since scrapped by all other developed countries and most others as well. Yet they have been used to decide the outcomes of dozens of killings by police this year – about a quarter of all those ruled justified.
In 23 states, indictments by grand jury are required for criminal charges in all serious felony cases such as murder. In 25 others, they are optional and prosecutors may proceed with charges themselves. Nebraska, one of the “optional” states, has a special law requiring that grand juries consider police-involved deaths. Only in Connecticut and Pennsylvania are grand juries a thing of the past.
It is more than 40 years since William Campbell, a senior judge in Illinois, called for the elimination of grand juries, declaring them to be “the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.”
The power of the prosecutor is so great, however, that the reverse is also true, according to professor Peter Joy of Washington University in Missouri: jurors can easily be guided not to indict. Joy said the indefinite secrecy applied to grand jury proceedings means that claims by prosecutors that a killing by police has been thoroughly scrutinised can not be verified.
“We don’t know what’s going on in those rooms,” said Joy. “We don’t know if the prosecution presented neutrally or put their thumb on the scale – either by failing to vigorously question witnesses who favour the police version of events, or by being very hard on witnesses who would favour the person killed.”
Following three of the most controversial deaths involving police in recent times – Eric Garner in New York, Michael Brown in Missouri, and Tamir Rice in Ohio – county prosecutors have held grand juries described by Garner’s family as being more like “secret trials”. In these prolonged versions of the typically brief process, jurors are presented with vast amounts of evidence, along with testimony from officers who do not face cross-examination.
Joy said the process provides “political cover” for elected prosecutors, who can claim to have allowed citizen oversight while knowing an indictment is unlikely. “If you don’t trust a grand jury, you don’t trust your neighbour,” Cuyahoga County prosecutor Timothy McGinty said this week, while announcing the officers involved in Tamir’s death would not be charged. In the rare event that an indictment is returned, a prosecutor under pressure from police allies may blame the jurors.
Notably, in two-thirds of the 18 deadly police incidents so far in 2015 that led to criminal prosecutions, initial charges against officers were filed by prosecutors themselves rather than grand juries. In some, such as the officers accused of causing the death of 25-year-old Freddie Gray in Baltimore in April, a grand jury was later used to affirm charges that prosecutors were pursuing.
The extraordinary process in Missouri after Brown’s death in Ferguson in August last year provided a rare exception to the secrecy rule. And when transcripts were released, they showed “Wilson was not rigorously cross-examined, while other witnesses were subject to extensive and aggressive cross-examination” after testifying against the officer, according to professors Jeffrey Fagan and Bernard Harcourt of Columbia Law School.
No statistics are available for state courts, but federal grand juries vote to indict in more than 99% of cases, according to the Department of Justice. Joy estimated that at state level they declined to prosecute between 1% and 10% of the time with civilian defendants but more than 50% in cases involving a police officer. In Houston, Texas, grand juries have cleared police in shooting cases 288 times consecutively, according to the Houston Chronicle.
Faith in the system has been eroded, with those among ethnic minorities the most distrustful. Fewer than one in five African Americans told a YouGov poll last year that they trusted the justice system to “properly investigate” police-involved deaths. Less than half of white people said they had trust in the system.
At the federal level, Democratic congressman Hank Johnson of Georgia this year proposed legislation that would deny funding from Washington to regional law enforcement agencies unless authorities stopped using grand juries to consider killings by police. Johnson’s plan called for the selection at random of another DA in the state to oversee a criminal inquiry carried out by state police officers. “Any time there is secrecy, you have lack of accountability, and that eats away at people’s respect and confidence in the criminal process,” said Johnson.
Time for radical overhaul
Efforts to reform the system are also slowly emerging from the states. As of 1 January, California will be the first where the use of grand juries for considering charges against police officers who killed people is banned by law.
Of the 18 deadly incidents involving police in 2015 that led to criminal charges, four were handled by state-level prosecutors such as the attorney general, and 13 were investigated by an external police department.
Only Maine and Connecticut currently require an independent prosecutor to handle officer-involved deaths by law. South Dakota and New Hampshire also leave the decision whether or not to charge an officer with the state attorney general as a matter of protocol.
Kevin Kane, Connecticut’s chief state’s attorney, said that while there were downsides to the new system, “the community’s perceptions has probably grown as a result of Ferguson to the point where it outweighs the other side of the coin.”
In New York, Governor Andrew Cuomo issued an executive order in July to make state attorney general Eric Schneiderman a special prosecutor for police-involved deaths of unarmed civilians or if “there is a significant question as to whether the civilian was armed and dangerous at the time of his or her death”.
But the move was criticised both by Garner’s family and district attorneys throughout the state. For Garner’s family, the order did not go far enough. Gwen Carr, Garner’s mother, said Cuomo had assured her privately it would cover all officer-involved deaths.
New York’s DAs complained of a power grab. Ken Thompson of Brooklyn said he and his counterparts would be “robbed” of their right to enforce the law locally. Two months later, Thompson charged an NYPD officer with second-degree manslaughter over the fatal shooting of Akai Gurley , an unarmed black man, in the stairwell of a residential tower.
Other attempted reforms across the country are meeting resistance from prosecutors wary of ceding their territory or accepting that they could be skewed in favour of police.
Rackauckas, the DA in Orange County, California, insisted that special prosecutors would not silence claims of bias. “I don’t think there’s any investigative body that’s not subject to that same kind of criticism,” he said in an interview. “People could say, ‘Well that investigator is in the pocket of the police’.”
Several efforts are also under way to prevent local police officers from carrying out the inquiries into shootings by their colleagues. In Wisconsin, a law passed last year requires outside investigators to examine all officer-involved deaths before handing their findings to the local DA. These investigators typically come from the state’s department of justice. If no charges are brought by the DA, the full investigation file must be made available to the public.
Maine law also gives “exclusive responsibility” for investigating police killings to officers in the state attorney general’s office. States such as Connecticut, Florida, Georgia New Hampshire, Rhode Island, South Dakota, Texas and Vermont, also typically refer cases to independent or state-level investigators as a matter of practice. While legislators in 14 states have this year proposed laws demanding outside investigators, just two, in Utah and Colorado , have passed so far.
Indeed, while dozens of state legislatures have discussed reforms of the system since the unrest in Ferguson, the debate has not translated into many new laws. According to a Guardian review of state legislation proposed in 2015, representatives in 15 state legislatures introduced bills that would see special prosecutors handle officer involved killings in some, if not all, cases. But none has passed into law, with most remaining at the committee stage.
But the use of outside authorities has not silenced claims of bias and inaction over killings by police. For instance no case involving Wisconsin’s special investigators has so far resulted in a prosecution, and Wisconsin has seen no charges brought in any of the 12 officer-involved deaths in 2015.
In the state’s most controversial killing this year, the case of 19-year-old Tony Robinson in Madison, Wisconsin, the Guardian disclosed that one of the lead DCI investigators was a former Madison officer. This drew criticism from the family of Robinson, who was unarmed and African American. They requested a federal investigation into the shooting. Following the April 2014 fatal shooting of Dontre Hamilton by Milwaukee police, it similarly emerged that half the DCI investigators were former Milwaukee officers.
Some critics have called for a more radical overhaul. Levine, of New York University, favours an “outsider-prosecution” system. A special oversight board within each jurisdiction, manned by retired prosecutors, civil rights attorneys, and other expert figures, would investigate officer-involved deaths. They would have subpoena power and the authority to bring charges. If charges were brought, a judge would appoint a private attorney. “I don’t see any legitimate reason why this couldn’t be done,” said Levine.
Joy, of Washington University, said a simpler device could push prosecutors to step aside from cases involving police in their own jurisdictions: the American Bar Association’s (ABA) rules on ethics for attorneys, which state that a conflict of interest exists when attorneys face a “significant risk” that their work will be affected by other responsibilities or loyalties.
Prosecutors, as attorneys themselves, are subject to this rule like any other, according to Joy. Yet DAs appear untroubled by it and the ABA’s 55-page standards manual on criminal prosecutions does not deal with potential conflicts of interest when investigating law enforcement officers.
An expanded rule, according to Joy, would result in some prosecutors voluntarily complying and in state ethics boards issuing similar guidance. “It’s not binding, no,” said Joy, “but it does create a presumption that this is the proper way to proceed.” A spokesman for the ABA said no one could comment on the record.
In 2010, when he testified to the Nebraska legislature’s judiciary committee in favour of abolishing the law that stopped him handling the cases of local police officers who had killed someone, county prosecutor Don Kleine was pressed by a state senator on how he would be sure to avoid bias.
“If there was a definite conflict of interest, then I’d have to declare that I had a conflict of interest, and we could get a special prosecutor,” Kleine said.
“His argument was: ‘You can trust us because we’re the government’,” according to Amy Miller, the legal director of the ACLU in Nebraska, which fought the abolition of the law. “That selling point works very well only if you’re confident that human beings never give way to favouritism or prejudice,” said Miller. “It is very worrisome.”
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