In Part 79, Judge Mader examines the political pressures surrounding investigations of officer-involved shootings, drawing on her time as the Inspector General of the Los Angeles Police Department.
You can find links to all installments of Inside the Robe here.
Today was my regular lunch with several judges with whom, as a deputy district attorney, I prosecuted police officers and public officials when I was in the DA’s office. We formed a merry band and are still friends twenty years later. Sitting around a lunch table and discussing each other’s careers without a hint of guardedness and with genuine trust and affection made me feel so fortunate. Another judge this morning told me how lonely he feels as a judge. “My wife gave me a sound system to listen to music in chambers or I would go crazy from lack of contact.”
A domestic violence trial arrived in my court today. The case, in which the defendant risks nine years in prison, has not been properly investigated by either side. The prosecutor and defense attorney say that the case was a “handoff,” meaning they were each assigned the case at the last minute. What sort of professional offices assign cases with such serious potential consequences to attorneys without time to properly prepare?
The defense attorney claims that the victim previously made false complaints against the defendant. No one has checked this out. I gave the attorneys the noon hour to find the earlier reports. Sure enough, they found two prior reports, but neither reflected the victim making up a story. They each include a 911 tape in which the victim shouts she’s been slugged or pushed to the ground by the defendant. When the police arrive, however, she explains her injuries in other ways and doesn’t want to come to court. Neither of these earlier cases went to court.
Tattoos cover the victim as well as the defendant. Not millennial “hope,” “love,” or tattoos of flowers, but angry gang-related tattoos. The prosecutor has offered four years in state prison. I have offered three. The prosecutor has returned to her computer system to look for more police reports because the defense attorney claims the ex has made more reports against different men.
Hallelujah! The defense has accepted my offer of three years in state prison, and the case is settled. It would not have settled, however, without me insisting that the prosecutor take the time to find the additional reports.
“Black Lives Matter” street demonstrations dominate the news. We are in election season, and accusations of police officers shooting unarmed African American suspects have become politicized. For three years, my unit in the District Attorney’s Office evaluated every Los Angeles County officer-involved shooting. I then reviewed every LAPD shooting for the Police Commission for close to three years when I was inspector general.
A “rollout” program was a feature of my unit. Initiated by former District Attorney Gil Garcetti, a prosecutor and investigator were dispatched immediately to the scene of every shooting of a civilian by a police officer. On many nights, I drove at 2:00 a.m. to shooting sites without a cell phone and GPS to guide me, only a paper map. Freaking out on occasion, I drove in circles in unfamiliar neighborhoods, stopping at pay phones in closed gas stations trying to find my investigator, also traveling to the shooting scene. Messages could only be relayed through a third party at the DA Command Center.
Arriving at the shooting sites, we were unwelcome. The old, crusty, LAPD police commander always tried to keep prosecutors and their investigators behind the yellow tape, and we always insisted we get closer. LAPD then took the shooting witnesses back to the police station to interview them, and then ushered them out the back door. They knew we were waiting for the witnesses in the front lobby to conduct our own interviews. It was unnecessarily hostile.
Our investigations were nearly meaningless, especially if we had no direct access to witnesses. We waited for arrest reports to be delivered and read them as best we could to determine whether the shooting was justified. Often officers claimed to have seen “a furtive movement as though the suspect was reaching for a gun.” Sometimes the “gun” turned out to be a set of keys or a wallet. How were we to figure out the state of mind of the police officer without interviewing him or her? Did the officer honestly feel their life was in danger? Of course, the police union would never allow an officer to be interviewed by the DA’s office. Most shooting investigations were closed without further action, not because sometimes we didn’t have a hunch that something was not right, but because we didn’t have the evidence to prove a crime beyond a reasonable doubt.
We tried to be objective, recognizing that the DA’s office rarely, if ever, filed a criminal case against a police officer for an on-duty shooting. Today, body and dashboard cameras are becoming more routine, and that will be helpful to investigations. We also almost never had photos taken by onlookers. I view these cameras the same way as I do DNA. They make it easier to convict as well as exonerate. While video may not be clear, it’s a lot better than making decisions without it. In my experience, eyewitnesses often get confused and can be inaccurate, and eyewitnesses to police shootings, whether police or civilian, have inherent biases.
Police officers making split-second decisions when confronting danger are often as scared as the suspects. No police officer begins a shift deciding they’re going to shoot someone that day. The aftermath of a shooting is traumatic to the police officers as well. It can scar them for life, even if the shooting was justified.
As I’ve explained that judges are people, police officers are people, too. They may be more or less competent in assessing danger. Their temperaments may be too jittery or too laid back. Some may be more impulsive than others. Prosecuting police officers for making the wrong shooting decision has a cascading effect upon the behavior of other officers, too. They may become reluctant to engage in dangerous situations when their job requires that they put themselves at risk. Do we want police officers who are so afraid of a prosecutor looking over their shoulder that they turn away from danger when we need protection?
As inspector general, I evaluated LAPD shootings and recommended to the Police Commission whether the shooting was in or out of policy. This was an even more cursory investigation than I did at the DA’s office. Unlike rolling out to the scene as a DA, as inspector general, I did not go to the scene and had no investigators. I merely reviewed reports prepared by the LAPD, and the Police Commission usually rubber-stamped the LAPD’s findings. To do otherwise was politically dangerous for commissioners, especially if it was contrary to the wishes of the Chief of Police or the mayor. In one notorious case, one police commissioner out of five found a shooting “out of policy” and was soon bumped off the Police Commission.
It will be difficult to find a jury for the high-speed chase and shooting trial that arrived in my court today. The prospective jurors not only need to be quizzed about gangs and guns, but the defense in this case is alleging that the fleeing defendant did not have a gun, that it was planted by the police. That may be difficult to sell; there is supposedly a dashboard camera showing the defendant displaying a gun to the crowd of people shortly before the chase. Nonetheless, there will be discussion during jury selection about the credibility of the police in these types of situations, and “Black Lives Matter” will surely come up. The two defendants are African American. The persons who were threatened and called the police, however, are also African American and will be called to testify.