Steve Russell (Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas) has a good article up at ICTMN. I’m just going to include a few points here. Click over to read the full, two page article.
2. When the officer is the perpetrator of the homicide, he or she is almost never interviewed in the same circumstances as other persons accused of homicide.
A civilian person of interest in a homicide may be interviewed without even a chance to change out of bloody clothes, and investigators will conduct the interview without a defense lawyer present, if possible. A spokesman for the Baton Rouge Police Department told The New York Times that the officers involved in the shooting of Alton Sterling were not interviewed the day of the incident because “we give officers normally a day or two to go home and think about it.”
Taking a human life unleashes powerful feelings even when doing so was necessary. Considering that, a police officer involved in a shooting will often be sent home right away and only returned to duty in a desk job. By union contract or by custom, the officer will have a lawyer provided and plenty of opportunity to talk to that lawyer before giving a statement for the record.
When the system finally does get around to recording the officer’s statement, the officer knows what’s on the video (if there is one, and there so often is now with phones and body-cams prevalent), and so is unlikely to give a statement that conflicts with it.
3. The normal burden of proof is reversed.
In normal circumstances, the homicide investigator is looking for facts to show probable cause to believe that an unjustified criminal homicide took place and the person of interest committed it.
Studies of how innocent people get convicted show a lot of “confirmation bias.” That is, investigators start with a theory of what happened and they minimize or disregard evidence that does not support their preferred theory.
When a police officer has deployed deadly force, the bias of every police investigator is to believe that the use of force was justified. Nobody wants to charge a fellow officer with a crime for coming down on the wrong side of a line around which they have had to dance. Rookie officers don’t get assigned to investigate other officers.
8. The prosecutor needs the police department and vice versa.
Should prosecutors and police start urinating on each other’s shoes, there is no practical limit to how bad each can make the other look in court, and in the court of public opinion.
For this reason, the investigation and prosecution of all officer-involved shootings need to be taken away from the department for which the accused officer works. The choices are a prosecutor from some other jurisdiction (complicated), a special prosecutor (expensive), or a prosecutor from the state Attorney General’s office (possible conflict of interest if the AG has to defend a civil suit from the same incident).
The final way to mitigate the team spirit between prosecutors and police officers is to go to a federal agency. To do this routinely would require legislation, because every officer involved shooting does not contain a federal issue.
Are the feds more competent and honest than the state police? Indians on reservations have strong opinions from watching Major Crimes Act cases.
We’ve come a long way since Indians could not testify against white people in court, but most of those rules came from states. The federal government has been better than that, the modern federal government lionized for honesty in the face of temptation in The Untouchables.
The FBI reported that between 1993 and early 2011, their agents killed 70 people and wounded 80 others. All 150 incidents were internally investigated by the agency that claims to be incorruptible and the source of forensic science that is state of the art for the entire world. How many FBI shootings out of 150 were found to be legally justified?
One hundred and fifty.