Where is the accountability when police kill people?

Recently prosecutors led a grand jury down the path of yet-again not charging a police officer who killed an innocent person with any sort of charges.

In that particular case, police were trying to serve a warrant and went to the wrong house. While there, they shot the man's dogs. They allege the man then pointed a gun through a crack in the door at them, and they had to shoot him. However, the bullet hole was in the back of the man's head. He was also found in another room near the door, but not by the door. Only one officer shot the police, despite a number of them being there to serve the warrant.

In another case, police killed a kid who was backing his vini-man out of his parents' garage. Video can be viewed here and here.

In another case, police shot the home owners instead of the intruders.

When you look at the numbers, out of 162,000 cases in which grand jury indictments were sought, only 11 grand juries did not indict. So, roughly 161,989 did result in indictments. However, when the topic becomes indicting police officers, those numbers almost flip. Out of 81 possible police indictments between 2008 and 2012 in Harris County, Texas, there was only one indictment. 

There is a disconnect here and police are getting special treatment. This special treatment is not going to cause any positive change or cause the police to think twice before firing multiple times into a slow moving mini-van. The private law suits for damages against the police forces do nothing to the individual officers, who usually just get paid time-off. When it comes down to it, these law suits are more likely to be ultimately funded by tax-payer dollars.

There needs to be real and lasting consequences when someone is killed or maimed. Otherwise, it will simply continue to happen.

What is Brady and why is it important?

Brady evidence comes from the case of Brady v. Maryland, 373 U.S. 83 (1963), which held that due process requires that material, exculpatory evidence be provided to the defense.

To show materiality, the defense must show that if the evidence had been disclosed, that the result of the proceeding would have been different. This has been stated in another way: whether there is a "reasonable probability" that the defendant received a fair trial without the evidence or the suppression of the evidence undermined confidence in the outcome of the trial.

There is no Brady violation if the defense could have obtained the evidence through reasonable diligence. 

Brady is important because in most, if not all cases, the government does the initial investigation and "controls the crime scene." They get the first crack at the evidence, decide what to collect, what not to collect, who to talk to, what to photograph, what to test, etc. The defense may not get access to these materials for weeks or months. For some of these cases, time may be of the essence as memories fade, evidence degrades, automated surveillance video is recorded over, or any number of things that happen due to the passage of time. 

Brady, when done properly, will prevent the government from hiding evidence. One common form of evidence that is helpful to the defense is called impeachment evidence. That is evidence that shows the witness has been dishonest in the past. Of particular importance in most criminal cases is when a police officer in most has been dishonest.

In a recent LA Times article, the authors depict how one officer's act of dishonesty was kept hidden and how that impacted numerous cases.

Some prosecutors' offices have "Brady lists" which are lists of police with known issues that can be used as impeachment evidence. However, getting accurate Brady lists can be more difficult than one may imagine due to the secrecy around officers' disciplinary records. The police are generally in charge of policing themselves when it comes to allegations of misconduct. The problems with such a system of trusting any organization to police themselves should be understood, but they may be especially problematic if the particular agency has an "us" vs. "them" (them being normal people) attitude or act as a para-militaristic organization as opposed to an agency that is there to protect you (the normal person). 

Also, inherent in the "police yourself" problem is the tit-for-tat, if you scratch my back, I'll scratch yours, which breeds self-dealing and corruption. There is also a fear of retaliation for speaking up.

So, because only certain classes of misconduct will be reported and only if the misconduct is established beyond a certain threshold, will the information qualify to make it onto a Brady list. 

The spirit of Brady is in the right place, but, like many aspects of the justice system, the way it plays out in the real world may not be so righteous.  

Kottkamp & Yedinak's firm website

You can see out firm website here: http://wenatcheelaw.com/

A brief bio for me, Sean Esworthy, can be found here: http://wenatcheelaw.com/our-attorneys.html

If I live outside of Washington, can I do a deferred prosecution?

The scenario presented here is if you live outside of Washington, but received a DUI or Physical Control charge while in Washington, say on vacation, can you do an RCW 10.05 deferred prosecution?

First, for a brief overview of what a deferred prosecution is, see my blog post here.

So, what makes this issue complicated? The complicating factor is that a deferred prosecution requires the person seeking it to do two years of treatment followed and an additional three years of probation.

The statute makes reference that the treatment must be done in an "approved substance use disorder treatment program as designated in chapter 71.24 RCW." RCW 71.24 states that an "'[a]pproved substance use disorder treatment program' means a program for persons with a substance use disorder provided by a treatment program licensed or certified by the department [of Social and Health Services] as meeting standards adopted under this chapter." The qualifications for DSHS approval are somewhat onerous.

Normally, this would mean that someone who lived in Connecticut and got a DUI in Washington who wanted to pursue a deferred prosecution in Washington would have to do their treatment at a DSHS approved facility. DSHS will only approve facilities in Washington. So, effectively, the out-of-state person would have to move to Washington for two years to do their treatment. The problem should be obvious: that someone who lives in Connecticut should not be deprived of the ability to pursue a deferred prosecution due to the fact that they live in Connecticut.

Okay, so what next? Well, if you look at RCW 10.05.150, you will see that it states that "[a]ll treatment within the purview of this section shall occur within or be approved by a state-approved substance use disorder treatment program as described in [chapter 71.24 RCW]." The bolded language is key. You may have a state-approved agency approve the out-of-state treatment agencies plan. So, the person in Connecticut would seek out a treatment agency in Connecticut, and have the an approved Washington agency review and approve the plan.

If you need help defending your Washington State DUI or Physical Control case, or even seeking assistance in pursuing a deferred prosecution, give us a call at Kottkamp & Yedinak, PLLC at (509) 667-8667.

If they were charged, they must have done something wrong, right?

Recently, it came out that a police department in Florida was looking for random black people to pin unsolved crimes on. Whistleblowers have outed the practice, but how much harm has already been done?

In another case, an officer from California was found to be taking bribes and obstructing justice.

Often, when examining potential jurors who may be selected to serve over a criminal case, several will answer that the defendant in the case must have done something wrong or he would not be there and be charged with a crime. They expect that there must be evidence against him, and even if it is not presented to them during the trial, some will believe that it was withheld due to lawyers (usually the defense) outside of their presence.

The examples from Florida and California here show that sometimes this is not the case. The sole reason for pinning these crimes on innocent people was to boost the department's stats. This was the justification for blaming people for crimes that they did not commit. These innocent people were being charged with serious offenses, which could have lasting impacts on their freedom, financial obligations, could require probation, could cost them certain rights (voting, firearms), and cause many other very harsh and very serious consequences.

In order for the justice system to work properly, not only must police and police investigations be held to some higher accountability and jurors must be more open-minded to the very real problems with the criminal justice system.