Whenever I pick a jury in a criminal case, one of the questions I ask prospective jurors is, "Do you think you should evaluate a police officer's testimony the same as any other witness?" I'm looking for jurors who thinks it's necessary to scrutinize a police officer's testimony rather than accept it without question. Most people agree that officers make mistakes just like everyone else. But very few believe police officers would intentionally lie.
Recent events around the nation, most recently the shooting of an unarmed man in South Carolina by Officer Michael Slager, are challenging this belief. Slager not only hit Walter Scott in the back five times, ultimately killing him, but in the aftermath of the shooting he appears to have planted his Taser on Scott. Had this incident not been captured on video, his clumsy evidence tampering probably would have worked. I doubt Slager would have been charged with any crime, in part because police internal investigations, like most juries, operate on the assumption that police officers don't lie.
Just this past Monday, an audio of Micheal Slager conferring with another officer just after the fatal shooting was released. In it, an unidentified officer talks to Slager about how he will be treated by investigators in his department: "Once they get here, it'll be real quick. They're gonna tell you, you're gonna be off for a couple days and we'll come back and interview you then. They're not gonna ask you any type of questions right now. They're gonna take your weapon," the officer says. "It'd probably be a good idea to jot down your thoughts about whatever happened ... once the adrenaline stops pumping."
The officer is telling Slager that he is not going to be subjected to an on-scene interview while his emotions are still running high and may influence what he has to say, or before he's had a change to put his story together. Instead, he gets to go home, think about what happened, make notes, talk to family, talk to a lawyer and then -- when he's rested, calm and ready -- give a statement to investigators.
Lest you think this just happens in South Carolina, let me describe the procedures used by the Anchorage Police Department when there is an officer-involved shooting. According to APD's Policy and Procedures Manual, an officer who has just killed another person should only be asked to "give an on-scene briefing to detectives in order to ensure that the scene is processed properly." But this request will only be made if "there are insufficient civilian or witness officers to ensure that the scene is processed properly, all evidence is located, and suspects are properly identified and charged."
After being released from the scene, "the involved officer will be provided time to discuss the incident with their immediate supervisor, union representative, and/or private attorney." According to a study by the UAA Justice Center of officer-involved shootings from 1993 to 2013, "in recent years, interviews with officers often occur within 24-48 hours after the incident."
Now let me tell you what happens to everyone else.
A non-police officer suspected of a homicide would be handcuffed and interviewed at the scene at least once, more likely twice. It doesn't matter if the person is hysterical, high or hurt. From the scene, the non-officer would be taken to APD's main station and put directly into an interview room.
These rooms are intentionally barren: an uncomfortable chair, a table and nothing on the walls. A camera records everything and allows police and prosecutors to observe the person's actions from the moment they walk in the room. The non-police officer is intentionally isolated, locked in this room sometimes for hours before detectives, at least two of them, come in to begin the interrogation. These detectives are trained in methods to extract confessions and will employ these methods regardless of the physical and mental condition of the non-officer. I've had clients interrogated after having no sleep for 24 hours, others interviewed while high on pain killers after being shot, dressed in their underwear, or in the midst of a psychotic breakdown.
Police officers would argue that these harsh tactics are important to uncover the truth. But if that's true, why aren't officers who have just used lethal force subject to the same methods? Why are they given the time and opportunity to construct an effective lie?
By raising these questions, I don't mean to attack the integrity of police officers in general. Most are honest, dedicated public servants. But there have been enough instances of officers committing serious crimes in this state that we need to at least acknowledge and accommodate for the fact that police officers do not investigate themselves with the same vigor as they do the rest of us.
In fact, as I write this, another video of police use of excessive force has just surfaced in Bethel. This one, from a store camera, shows former Bethel Police Officer Andrew Reid slamming a man to the ground nine times. The victim of this use of excessive force, Wassillie Gregory, was charged with a crime, but the officer was not. Because the video was not released to Gregory as part of his criminal case, he pled guilty to harassing the officer.
The mayor of North Charleston has responded to Officer Michael Slager's shooting and attempted cover-up by pledging to have police in his city wear video cameras on their bodies. This is a good idea for police everywhere. Cell phones with video cameras have become ubiquitous. But people who are victimized by police shouldn't have to stake their chances for justice on a witness happening by at the right time or an attack fortuitously occurring in front of a store cameras. Even better than catching lawless police, as tireless recorders of the truth, body cameras might actually prevent these incidents from happening in the first place.
Marcelle McDannel has been working in criminal law for almost two decades, both as a prosecutor and as a criminal defense attorney. She currently practices criminal defense statewide. Contact her at marcelle(at)alaskadispatch.com.
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