Sometimes, as in the newly adopted procedure to examine cop-involved shootings, new doesn’t mean improved. An argument for openness and citizen involvement.
In acting to disband the coroner’s inquest system in favor of a “police fatality review process,” the Clark County Commission has managed the remarkable feat of not only throwing the baby out with the bathwater, but throwing the tub on the trash heap as well. It’s a stunning regression in the guise of reform.
No doubt the old inquest system needed improvements. But now, following two years of pubic input into a revised inquest system, and after fighting state troopers and the Metro police union all the way up to the Nevada Supreme Court, the County Commisresion ditched a revised inquest process it fought hard to get implemented (and spent taxpayers dollars to defend legally) — and went with a completely new system that none of the people who fought for the reforms endorse.
There’s been precious little explanation about why the revised system was scrapped before it was used, but I’m sure the majority of the commission had no stomach to actually compel officers to testify at a proceeding the cops felt would be adversarial, and in which they would essentially be cross-examined by an ombudsman appointed to the families of the deceased.
Whatever the reason, the commission’s action begs the question: If you fix something that’s broken, why not give the fix a chance to work? What we’re left with is what you get when too many well-intentioned but not necessarily well-informed cooks set out together to make soup.
Not that I was a big fan of the old process; I conservatively estimate I covered at least five dozen inquests during my 20-plus years as a television reporter here in Las Vegas, and I, too, had serious questions about the system. It seemed the deputy district attorneys who guided the process often asked softball questions of the officers who testified, and sometimes posed leading questions seemingly designed to prompt answers that would result in a verdict of “justified.” (Indeed, over the years, the process delivered a nearly unbroken string of justified verdicts.) And because inquests were only conducted when the DA’s office had already determined there was no criminal wrongdoing in the death, it raised the specter of the DA’s office using the inquest process to justify to the pubic a decision that had already been made.
But flawed and imperfect as the old system was, it had significant advantages over the new, and not-so-improved, method. Let me count the ways:
1.) In every inquest I covered, every single one, the person(s) who pulled the trigger(s) ultimately testified. Under oath. It’s impossible to overstate how important it is to hear directly — under penalty of perjury — from the person or people who made the decision to take a citizen’s life. It baffles me that anyone would think a system that eliminates this element is somehow an improvement.
Under the new system, officers involved in a citizen’s death will not be subpoenaed, but may be “invited” to testify. Attendance will not be compulsory. And we have a pretty good idea how many officers will accept such an “invitation.” The state’s largest police union, the Police Protective Association (PPA, representing Metro’s rank-and-file officers), has already advised its members not to testify.
2.) The old system employed a “coroner’s jury” that heard all the evidence and rendered a verdict of “justified,” “excusable” or “criminal.” I acknowledge that the jury’s “verdict” in this proceeding was simply an opinion and not binding. But at least it brought local people from all walks of life into the process. And citizens selected for the jury could pose their own questions to any or all of the witnesses.
Under the old system, citizens in the audience could also ask questions, but they had to be submitted in writing to the hearing officer, who decided whether to ask them. From experience, I know that hearing officers often elected not to ask questions posed from the audience or by representatives of the deceased family. But the coroner’s jury was empowered to ask any questions jurors thought were relevant without being screened by the hearing officer first. We have now lost that aspect of public participation and the unfettered ability by average citizens to question witnesses.
3.) Thoroughness. The old system was nothing if not thorough. Cops who were directly involved in the death were called to testify. Civilian witnesses who saw what happened were called to testify. Family members of the deceased were either subpoenaed or invited to testify. Medical examiners gave their opinion. 911 calls were played. Surveillance videos were shown if any existed.
The outcome of any given inquest might have been as predictable as an episode of CSI: Miami (another theatrical presentation where the cops are never wrong), but few stones were left unturned. After 40 years of use, the mechanisms of the coroner’s inquest were well understood and the inquiry far more open than in many other localities, where police-involved deaths are reviewed solely by the local district attorney, often behind closed doors or in secret grand jury proceedings.
So, I guess I come here not to bury the now-dead inquest system, but to (guardedly) praise it.
This is not to say there haven’t been highly questionable police-involved deaths in Clark County. There are at least three cases I investigated as a reporter that I still have doubts about, and I think anyone who watched the inquest into the death of Travon Cole has to have serious reservations about what happened in that incident.
But, again, these cases were reviewed by the district attorney prior to the respective inquests, and decisions were made by the DA not to prosecute the officers. The inquest was simply a mechanism for getting the facts of the case before the public. Deciding whether to file charges is — and has always been — the DA’s job.
So if you have concerns about justice not being done in specific cases, then look not at the inquest system, but at the public officials who review the cases for potential crimes: the DA and the sheriff. In terms of people-versus-process, a parable might be: Don’t blame surgery for surgical deaths — but make sure the guys holding the scalpels are doing all they can to keep the death toll down.
This is not necessarily meant as a criticism of District Attorney Steve Wolfson or Sheriff Doug Gillespie. I just want to make the point that people may be more important than process here. And bear in mind that the burden of proof in bringing a criminal charge against an officer performing his duty is considerable.
But my experience tells me that even the deaths that remain “questionable” after an inquest are far less likely to be a result of criminal intent than accident, incompetence, poor communications, confusing rules of engagement or deficiencies in the training necessary to diffuse a deadly situation. Those things are not crimes. But they are things the sheriff can address by revising policies, implementing new ones or firing cops who are too quick on the trigger. Based on what I’ve been reading in the news lately, it appears Mr. Gillespie has been doing that.
I think it’s probable that technology will soon give the public greater insight into police use of deadly force, regardless of what fact-finding process is used. Dash-mounted cameras in police cars, and cameras worn by the officers themselves, can shed light on what happens during a lethal encounter. If deadly force is justified, video will support the officers’ actions. But if not, the video will tell a tale a dead man cannot. I’m told Metro is already experimenting with these types of camera systems. If they come to pass, it will certainly aid the fact-finding process, though it would have done the same under the old system.
The new process does retain a significant aspect of the revised inquest system the commission abandoned: An ombudsman will be appointed to assist families of the deceased, and the ombudsman is supposed to have access to police reports and interviews. Of course, the ombudsman won’t be able to question officers involved in a death if the officers don’t show up, and even the sheriff has said he doubts they will.
There are a lot of unanswered questions about the new process. How will ombudsmen be selected? What qualifications will be required? Will everyone be “invited” to testify or will some people be subpoenaed? If someone refuses to testify, is there some mechanism to compel their testimony? Will the same information provided to the families of those killed be made public as well?
I’m sure all questions will be answered in good time, but I remain skeptical that the new process represents an improvement over the previous system. The inquest has new clothes — but it remains to be seen whether the finery has any substance.
Glen A. Meek is a former investigative reporter and the recipient of seven regional Emmy awards. He’s is a staff investigator for the federal public defender of Nevada. The opinions expressed here are his and do not represent the views of the office of the federal public defender.