Bar News - March 19, 2014
Morning Mail: Bar Members Uniquely Equipped to Discuss Police Shooting Review
By: Charles Putnam
Editor’s Note: This is an extended version of a letter Charles Putnam submitted regarding a pair of articles published in the criminal law section of the Jan. 15, 2014, edition of Bar News. To comment on this or other articles and letters published in Bar News, please email email@example.com.
Due to space constraints, the Bar News needed to condense this piece for print. I greatly appreciate the invitation from Dan Wise and Kristen Senz to post the full version here, on the off chance that a few readers may find the additional analysis useful.
Both sides argued their positions well in the Bar News feature, “Debate: Should NH Create a Citizens’ Review Board?” As a former prosecutor who conducted and oversaw a number of investigations under RSA 627:5, I write to offer some additional questions that members of our profession are uniquely well equipped to consider.
Who will decide 5th Amendment issues?
The purpose of the investigation into an officer involved use of deadly force [the investigation] is to find out if the officer had a reasonable belief that deadly force was necessary to defend the officer or a third party from the imminent use of deadly force. That reasonable belief triggers the privilege under RSA 627:5, II. If there is no such belief, or if the belief is not reasonable, there is an active legal presumption that the officer, as a citizen, may face one or more criminal charges such as assault or homicide. Thus, the officer is always the most important (and sometimes the only) witness to the relevant event, because the statute defines the privilege in terms of the officer’s perceptions and whether the officer’s belief at the moment of the shooting was reasonable.
An officer’s voluntary waiver of Fifth Amendment protections can have an enormous impact on the public’s confidence in the investigation. The officer’s uncompelled statement is often the best information about what happened in the moments just before the shooting and is usually better evidence of the officer’s thought process than the conjecture of investigators acting at a physical and temporal distance from the event. Officers, however, are still citizens, with Fifth Amendment rights against self-incrimination. Just as the public needs to trust the investigative process, the officer needs to trust it even more, because, as criminal defense attorneys often tell us, no “smart” target of a criminal investigation ever waives the Fifth Amendment privilege without a compelling reason. In helping officers reach the momentous personal and public policy decision to waive (or not) those rights, or to immunize (or almost always not) statements made by the officer, sensitive legal and professional considerations come into play.
In the investigations I worked on, these considerations were addressed in conversations and negotiations with officers’ legal and union representatives and police commanders before the officer made a statement. Is a citizen board well-equipped to engage in these nuanced conversations in ways that will best serve the public’s need to know, the officer’s legal and personal interest and the shared interests of law enforcement officers and the public generally to assure that officers’ legal privilege continues to serve its intended purpose?
How will labor law and internal affairs issues be treated?
Most police officers are members of unions. Union officials have a legal duty of fair representation to their members. As advocates for officers, it is frequently reasonable for union officials to say, at least initially, “public interest be damned” and insist that an officer invoke the Fifth Amendment privilege or to insist that the officer be immunized from prosecution before giving a statement. Both of these results can seriously undermine public confidence in the resulting investigation for reasons described above.
Similarly, police commanders have a duty to enforce the employer’s internal use of force policies and to conduct internal inquiries that may have dramatic occupational impacts on the officer regardless of the outcome of the investigation under the statute. Like union representatives, commanders may have a strong interest in the short term goal of completing the internal affairs inquiry. As a result, commanders may have at least a theoretical interest in giving a “Reverse Miranda,” compelling the officer to make a statement at risk of losing employment, but thereby immunizing the compelled statement from use in a criminal prosecution to facilitate the internal inquiry. If the officer’s compelled statement yields evidence that a crime was committed, but cannot be used to prosecute that crime, public confidence in the investigation may be undermined. Like Fifth Amendment balancing, these professional and legal issues require careful conversations among prosecutors, union representatives, police commanders and officers’ attorneys to reconcile and sequence these interests. As a matter of public policy, one would hope that all of these conversations take place with the broader public interest in preserving public confidence in law enforcement officers’ ability to protect us safely and well. It is fair to assume that a citizen board will have that public interest at heart, but will it be well-equipped to manage the subtleties of those conversations?
Who will charge?
If the statutory privilege does not apply, a grand jury indictment is the likely next step. Who will present that charge in the wake of the citizen board’s decision? Will the board have charging authority, and if so, who will prosecute the case? Should the Attorney General (or another prosecuting authority) be bound by the board’s decision? What if the decision under the statute is a close call? What if the AG finds no merit to the board’s decision and exercises his or her prosecutorial discretion not to bring a charge, on the grounds that a jury would likely exonerate the officer? How would any resulting conflict between the board and the Attorney General affect public confidence in the investigation?
Who will pay?
I strongly disagree with the notion that a citizen shoot review board would be “free.” Gathering the facts takes substantial amounts of time and sophisticated investigative skill that laypersons generally do not possess. Administering a complex investigative process like a shoot review almost certainly requires paid help, to compile reports, produce final reports and respond to the inevitable requests for public documents after the investigation is finished. In addition, resolving the delicate legal and procedural questions described above requires sustained, knowledgeable efforts by capable counsel who cannot be compelled to volunteer their professional services. Remember, too, that if the purpose of establishing the board is to eliminate the expected institutional bias of public prosecutors, neither the Attorney General nor county attorneys could provide that counsel. Granting that the public’s interest in the review of officers’ use of deadly force is very important, is the public’s confidence in – and willingness to pay for – this important investigative function more important than the public’s interest in funding other justice functions, such as the courts, public defenders, public prosecutors and reasonably priced law enforcement training?
What’s the problem here?
Are we focusing on a New Hampshire problem? Are we seriously concerned that the generations of Attorney Generals and Assistant Attorney Generals who have worked on New Hampshire cases have sold out the public interest in assuring that law enforcement officers’ statutory privilege is used in accordance with law? What is the evidence of tainted judgment, and is that evidence drawn from a careful, disinterested review of the body of publicly available investigative files, or is it based on initial press reports of a few incidents and long-nursed grievances about the exercise of prosecutorial discretion in particular past cases? In those cases where reasonable people disagree with the Attorney General’s finding (and these disagreements certainly do exist), is it fair or even reasonable to say that the Attorney General abused his or her discretion to such an extent that statutory framework for these investigations should change?
Where will “sunshine” do the most good?
One of the best lessons I learned as a member of the Attorney General’s Office was the value of “sunshine:” the notion that transparency and public involvement are crucial for public confidence in the justice system. Sunshine is especially needed in close cases, tragic cases and disputed cases. It cannot be seriously denied that deadly force cases not infrequently meet all three of these criteria, and, at least in my experience, always involve a tragedy for the victim, the officer and both of their families. How can we best avert these tragedies? Will it be with after-the-fact reviews or by (a) careful selection, training and supervision of officers, (b) good policy development at the local level and (c) careful attention to public controls on police “culture”? City and town councils, town meetings, boards of selectmen, and police commissions have vast authority over all three of these areas. At the state level, the Legislature, Executive Council, Attorney General and Governor all have important roles to play as outside checks on state police culture. Would New Hampshire be better served by promoting transparency and public input into these other processes rather than delegate the “sunshine task” to a state panel after the fact?
If policymakers were to answer all of these questions in ways consistent with reforming the process for administering the statute, they might consider whether a “third way” would be better than establishing a shooting review board. It might be more sensible to consider establishing an institutional check and balance on the Attorney General’s discretion rather than to create an entirely new institution. Perhaps representative delegates from the police command, police union and criminal defense communities, together with well-qualified public representatives, would perform a confidential review of the Attorney General’s investigation before it is publicly released. That group might offer comments and could even have the power to “dissent” from the Attorney General’s decision, while leaving the fundamental – and sensitive – investigative and prosecutorial functions in place. Such a process would be less costly than a citizen board delegated to undertake both the investigation and the reporting function. That process might also be expected to be less disruptive to the initial investigation and any subsequent prosecution, even in disputed or close cases.
Finally, I believe that compared to the number of interactions or even to the number of dangerous interactions that officers have with the public on a daily basis, law enforcement officers’ use of deadly force in New Hampshire is exceptionally infrequent. As both a practical and a policy matter, I believe that investigations of officers’ infrequent use of deadly force are qualitatively different than investigation of reported crimes. Whether my reader agrees with me or not on that point, we probably do agree that public confidence in our procedures for investigating officers’ use of deadly force should matter greatly.
The process of reviewing officer-involved shootings, though, is laced with conflict. Police can be justifiably worried that outsiders may be unable to resist an invitation to second-guess an officer’s judgment, and they correctly argue that these cases arise from intense, ambiguous, life-or-death situations where split seconds matter. On the other hand, observers of police culture can justifiably worry that for a very few undertrained, poorly prepared officers, the compelling human desire to go home to loved ones at the end of a work day may cause an officer to discount the equal interest and lawful claim to life possessed by a citizen that he or she encounters. The public justifiably wants its servants and institutions to strike the “right” balance among these competing interests inherent in officers’ use of deadly force. Regardless of our individual answers to these questions, members of the New Hampshire Bar are uniquely well situated to promote thoughtful discussion of the questions posed here and to help the people of this state craft sensible responses to the conflicts and paradoxes inherent in these difficult, tragic situations.