Every U.S. prosecutor should expect that an officer-involved shooting or death will occur “at some point” during her tenure, and have in place a plan to deal with it fairly and transparently, says Roy L. Austin, Jr. a former Deputy Assistant Attorney General at the Department of Justice.
The plan should take the form of a ”thoughtful protocol” that lays out each step of the investigative process in a way that is visible to both the community and law enforcement, said Austin, who also served as a White House adviser on urban policy before returning to private practice with a Washington, DC law firm.
“The prosecutor needs to make a very clear statement to the public that the incident is not going to be pre-judged in any direction, that a full and comprehensive investigation is going to be done, and that when the prosecutor can be transparent about it, they will be transparent about it,” Austin said.
His comments were quoted in a paper published this week by the Institute for Innovation in Prosecution (IIP) at John Jay College as part of a series of executive sessions examining the changing role of prosecutors in American life.
Austin was one of three people interviewed by IIP policy advisor Allison Goldberg about their experiences and recommendations in dealing with tragedies involving the deaths of civilians at the hands of police.
The others were Valerie Bell, whose son Sean died in a hail of 50 police bullets outside a New York City nightclub in Nov. 25, 2006 in the early morning of his wedding day; and John Choi, the chief prosecutor of Ramsey County (MN), who spearheaded the case against a police officer who shot Philando Castile during a traffic stop in a St. Paul, MN suburb on July 3, 2016.
Both victims were young black men, like most of the police-involved fatalities that have sparked national protests—a fact that all three interviewees said made it especially important to be aware of the racial issues distorting the strategies of modern law enforcement as well as the U.S. legal system.
“I’m not prejudiced, “ said Bell. “But…they don’t kill the white people who have guns. Dylan Roof [who massacred nine parishioners at an African-American church in Charleston, SC in 2015), for example. But, they kill our people, our black people, young boys, young men who don’t have guns most of the time.”
Later evidence revealed that Castile had been a frequent target of police racial profiling. He had been stopped more than 50 times for low-level traffic offenses before his shooting, a fact that was said by relatives quoted in the paper increasing the “probability” that a tragic incident could occur.
Ironically, Castile had participated in a driving diversion course established by prosecutor Choi to relieve the burden of traffic fines and fees disproportionally imposed on residents of the Minneapolis-St. Paul community.
Choi recalled that he felt a special obligation to demonstrate to anxious and angry African Americans in the Twin Cities region that Jeronimo Yanez, the officer who shot Castile in front of his girlfriend and their four-year-old daughter, would be held accountable for his actions in a court of law.
That was why, he said, he rejected calls for a special prosecutor to investigate the case, explaining it “would have been irresponsible, because whoever I would have given it to would not have been elected, so they’re not accountable to the public.”
But Yanez was found not guilty of second-degree manslaughter and two counts of dangerous discharge of a firearm, a verdict that Choi recalled hit his team “like a ton of bricks.”
“We were not ready for that outcome, and obviously, the Castile family was not either,” Choi said. ”I will never forget that day. People were counting on us to deliver justice through the court system and we felt like we had let them down.”
All three interviewees said that whatever the causes or behavior that led to the tragedies of civilians dying at the hands of police, the legal system—embodied in the prosecutor—had too often abandoned any pretense of even-handedness in the investigation of questionable police behavior.
According to figures cited in the paper, approximately 1,000 people are killed every year at the hands of law enforcement. But in the decade between 2005 and 2015, only 54 police officers faced criminal charges for fatally shooting someone in the line of duty, and nearly half of those cases resulted in acquittal or dismissal.
Austin said that while he could sympathize as a former assistant district attorney in Washington, DC, with the intense pressures faced by a prosecutor when a law enforcement officer was in the docket, it was important to remember the victims and their families.
“A prosecutor needs to be in immediate touch, and consistent touch, with the victim’s family, providing them with any mental health needs while the investigation is ongoing,” Austin said. “Similarly, the prosecutor needs to be in touch with the officer and the officer’s family, and say the same thing to them.
“(The prosecutor should recognize) that this is a traumatic experience for everyone involved, and while we’re not going to pre-judge this in any way, shape, or form, if there is any assistance that (a [police officer) needs, professional assistance will be provided while we’re conducting the investigation.”
The title of the IIP paper, “Prosecutors and Officer-Involved Fatalities: A Forced Evolution from Tragedy to Advocacy,” implicitly suggested the need for a cultural shift in prosecutors’ mindset from self-appointed defender of law enforcement.
“What these prosecutors fail to understand – and that’s because they aren’t putting themselves in the shoes of the victim, or the victim’s family – is that the prosecutors haven’t lost anybody,” said Austin.
”They haven’t lost a loved one. And every single day for anyone who has lost a loved one, and anyone especially who has lost a loved one in this way, every single day is a nightmare.”
But the conversations also underlined the importance of changing the way police relate to at-risk communities, said Camden County NJ Police Chief J. Scott Thomson, who wrote the introduction to the paper.
“When I truly started to hear (my) community’s concerns and desires, I realized that being a community-builder first resulted in greater neighborhood safety than by solely being a crime-fighter,” Thomson wrote.
He added that the “human narratives” contained in the paper’s personal accounts of police shootings were critical for authorities responsible for justice in their communities to hear, if they hoped to avoid future tragedies.
“As I think about how hearing these stories earlier would have affected my own journey on the force, I imagine the power this paper could have on the field,” wrote Thomson.
Editor’s Note: John Choi and other members of the IIP working group participated earlier this month in a panel called by a statewide working group on officer-involved fatalities in Minneapolis, MN.
The complete paper can be downloaded here.