Step Off! Magazine

Several weeks ago, we embarked on a two-part series exploring the highly contentious and problematic relationship that prosecutors, district attorneys, and police departments currently have between one another in this country. All too often these highly compromising relationships work in unison with one another to protect problematic, negligent and downright abusive cops, as well as the departments that hire them, rather than seek justice for victims and their families. Last time, we explored how often times local prosecutors work in collusion with police departments to purposely derail cases against officers via the grand jury system before they even go to trial, selectively stacking the odds in their favor. Likewise, we also looked to the state of California which not only requires that district attorneys now be required to weigh evidence against police officers themselves and decide whether or not to file criminal charges but also, outright banned the use of secretive grand juries to weigh in on cases involving excessive or deadly force by law enforcement. As we said before, while policies like this and others similar to those passed in California sound like progressive forward-thinking ideas, that in theory should lead to more objectivity as well as transparency when considering to potentially press charges against officers who acted negligently or maliciously, they are by no stretch of the imagination bulletproof means to ensure impartiality, nor that justice will ultimately be served. In fact, just like with many local prosecutors, leaving prosecution solely in the hands of district attorneys is highly problematic in its own right and has had its own long extensive list of problems as well. Just like with many prosecutors, the incestuous relationship district attorney’s offices have to police departments are a clear conflict of interest that all too often impedes and derails justice. While the banning of grand juries in states like California for cases involving excessive and deadly force by law enforcement may sound progressive, the fact is that even prior to California’s Governor Jerry Brown signing SB227, grand juries were already seldom-used throughout California in regards to excessive and deadly use of force cases by law enforcement officers in the state. The measure just simply banned their use throughout the state and officially put the law on the state’s books. Now, in California where there is an officer-involved shooting and/or misconduct, the district attorney will conduct their own investigation and when the district attorney has completed their review of a case, they will write a letter laying out their decision whether or not to charge the officer involved with a crime. So even before this, district attorneys were already by in large doing what SB227 now officially requires them to, and the results haven’t exactly been stellar by any stretch of the imagination either.

First and foremost, let’s set the record straight in regards to district attorneys and the purpose they serve. District attorneys are not infallible, nor necessarily impartial figures that are uniquely set apart or by nature just more virtuous than regular prosecutors at the local level. The fact of the matter is that police and district attorneys already work extremely close with one another on a practically constant regular basis, perhaps more so than almost anyone else in the justice system. District attorneys, by the very nature of their job, work so incredibly close with the police one might even call their relationship compromising. District attorneys rely, trust and depend on the cooperation of police departments and investigators who are constantly in their office reviewing and examining evidence that will eventually be used in preparation to go to trial for criminal cases. Now traditionally, in many criminal cases, this potentially compromising and unusually close cooperation between the two has been the norm and expected. However, over the past couple of years given the acceleration of technology and the increased awareness and frequency of incidents capturing police officers taking part in grossly unjustified shootings, brutalizing citizens or other forms of vile misconduct, the stakes in the public eye have been raised significantly higher. At this point in many states, the tables are now turned, where many district attorneys are now tasked with the responsibility of whether or not to pursue criminal charges against police officers in departments that they regularly cooperate with. This can not only get very complicated and incredibly awkward for district attorneys to go after cops that they work with, but raise serious, valid doubts and concerns from the public about how impartial DA’s can truly be given their damn near smothering closeness and relationship they have with one another and the internal politics that exist between the two. This concern is a serious sentiment that has not only been echoed by the public across the state of California but all throughout the rest of the country as well, again casting doubt on the integrity and impartially of the U.S. justice system when prosecuting police misconduct.

To further illustrate this damning conflict of interest on a more intimate level, let’s take a look at my hometown, San Diego, California. Allow me to introduce you to three-term district attorney Bonnie Dumanis, who has served as San Diego’s district attorney since 2003. Bonnie Dumanis, aside from being accused of receiving $10,000 in illegally laundered money from Mexican businessman José Susumo Azano Matsura during her failed mayoral campaign in 2012, as well as attempting to charge a local San Diego rapper Brandon “Tiny Doo” Duncan along with 14 other San Diego men with conspiracy, a felony charge using an obscure law that had not been previously tested anywhere in the state of California (and was eventually dropped by a judge after citing prosecutors didn’t present enough evidence to prove that some of the defendants willfully benefited from the violent crimes alleged) has been accused of being a rather shrewd DA for the county. Dumanis has not come without her fair share of criticism over the past 13 years aside from the aforementioned incidents. As one might imagine, Dumanis is a republican with a long history of staunch support for local enforcement and hasn’t been very supportive of SB227 being set in place in the state of California. She has even voiced her displeasure of the measure in a 2015 interview with the San Diego Union-Tribune stating, “SB227 was at best unnecessary and at worst reactive. Simply put, it’s a ‘fix’ for a problem that didn’t exist”. It is blasé, dismissive attitudes like this from stubborn, out of touch officials such as Dumanis that just go to show exactly why there is not only such an immense chasm of distrust between the general public and police, but likewise a deep distrust between the public and representatives tasked with the duty of prosecuting them and are supposed to be responsible for holding them accountable when they act inappropriately and break the law. Dumanis also went on to further voice her dissent on the measure stating “SB227 will undoubtedly lead to an explicitly unfair process for those who dedicate their careers to protecting and serving our communities as sworn peace officers. SB 227 is a knee-jerk response to perceived deficiencies of grand jury systems in other states. It’s unfortunate that the conversation leading up to its passage in California perpetuated a false narrative about the integrity of prosecutors and undermined the relationship between district attorneys and the communities we serve”. By Dumanis own words, she has already more than cemented her position that in her eyes the system is not broken and that everything is working just fine in spite of the countless cases that have resulted either in acquittals or all-out dismissed before they could even go to trial following senseless, horrific killings by police that we have seen time and time again across the country. On top of ignoring the fact that the justice system is already vastly, disproportionately stacked in the favor of the police, Dumanis is being purposely ignorant to the variety of changes states across the country (as well as her own state) which have been enacted in the wake these high profile killings by police. It is overwhelmingly obvious that something is very, very wrong in the country’s justice system. The horrific executions, countless protests, and mounting legislation we have seen take place and enacted across the country is quite literally the living, breathing proof of these flaws that have been neglected and ignored for far too long. Again, however, I must reiterate, this is the common sentiment and attitude amongst far too many officials across the state of California, and throughout the rest of the country. Despite the countless excuses, luxuries, privileges, and benefit of the doubt that is practically universally bestowed by the justice system upon even the most obviously crooked and guilty in law enforcement, they still believe that there are absolutely no problems whatsoever, and if anything they, along with police officers, are the ones being targeted and treated unfairly by the system. We all know that nothing could possibly be farther from the truth.

However, if words and rhetoric aren’t enough to suffice then Dumanis’ own record during her tenor as the San Diego DA speaks for itself. According to a database compiled by inewsource, out of 155 officer-involved shootings that have occurred in San Diego County between 2005 and 2015, Dumanis did not find a single instance in any of these investigations that warranted a police officer being criminally charged. These numbers are highly suspect, given that even if 99% of those shootings were justified between 2005 to 2015, there is still that 1% therefore, it’s highly likely at least 2 were not justified and should have gone to court. This is made even more evident by the fact that a wrongful death lawsuit against SDPD officer Jonathan McCarthy has been allowed to move forward in the 2012 shooting of Victor Ortega citing “material inconsistencies that could lead a reasonable jury to find in favor of the plaintiffs”.

On top of Dumanis’ long track record of vindicating officers across San Diego County, she along with the SDPD, up until very recently haven’t exactly been very forthcoming when it comes to the practice of releasing body-cam, surveillance and eyewitness cell phone footage of police shootings in the past either. Take for example, back on April 30th, 2015 following the fatal shooting of 42-year-old Fridoon Rawshan Nehad, a mentally-ill immigrant from Afghanistan who had a long struggle with PTSD and a documented history of schizophrenia and bipolar disorder. He was shot and killed in an alleyway in the Midway District by SDPD officer Neal Browder. According to NBC San Diego, Browder shot and killed Nehad 32 seconds after arriving in the alleyway and confronting him behind the Hi-Lite Adult Bookstore. Browder, who was responding to the call alone, suspected Nehad was in possession of a knife and intended to stab him when he approached the officer. Following the fatal shooting, it turned out Nehad was simply in possession of a ballpoint pen, and despite an exhaustive search no knife was ever recovered at or around the scene of the shooting. Nehad was approximately 17 feet away when he was fatally shot by Browder. Browder told investigators he didn’t recall issuing any sort of commands to Nehad and when asked if he considered using other less-lethal options on Nehad before discharging his gun, Browder said “It happened that quick. I didn’t have a chance to use any other force options.” And “He was going to stab me. There’s no doubt in my mind that he was going to stab me”. Browder who was also equipped with a body-camera failed to activate his, even though he was well aware he was responding to a potentially dangerous situation with an individual that was possibly armed. In a sworn deposition in the civil case brought by Nehad’s family, obtained by Voice of San Diego, it was revealed Browder did not face any discipline following the shooting. He was put on administrative duty, working at a desk instead of on patrol for a few weeks, but was back on patrol within a month of the shooting. Browder did not undergo any additional training or receive any written reprimand. None of his supervisors told him he had made any tactical mistakes, in fact, it didn’t even come up in his performance review for that year.

The whole shooting was captured by a surveillance camera from a nearby business that was promptly confiscated by the police as evidence and not released to the public until after Dumanis announced the DA’s office would not be pressing charges against Browder in November of 2015. Following the shooting, it took an 8 month long battle by local San Diego news outlets such as the San Diego Union-Tribune, KPBS, KGTV, Voice of San Diego and inewsource in federal court to allow Nehad’s family to make video footage of the shooting (that was captured by a security camera at a nearby business) publicly available. In December of 2015 Judge William Q. Hayes ruled in favor of the Nehad family and media. The ruling did not force Dumanis and the DA’s office to finally release the footage to the public but ruled that Nehad’s family was no longer prohibited by the court from making the video public. Hayes also ruled that officials could not block the video’s release, rebuking Dumanis, SDPD Chief Shelley Zimmerman and an attorney for Browder who argued against releasing the video.

In fact, at one point, Dumanis had a policy in place to only to release videos of police shootings after they appeared as evidence in court (a step we have already concluded rarely happens). Dumanis would later reverse her position on the matter and release more videos publicly stating “The position represents a major departure from historical practices, but we recognize the times have changed.” However, the release of this footage does come with some terms and restrictions, not all of them exactly positive either. For example, on a positive note the DA’s office said it would edit the videos to blur the faces of victims who had been shot, and witnesses in the background. But, the officer’s faces would also be blurred and videos would be stopped at the point shooting stops; so officers’ further actions such as approaching the wounded person, as well as resuscitation (if made at all) and other further treatment would not be shown. Likewise, the district attorney’s office stated that the release of any footage from shootings will only happen after the office has completed its investigation, and after it had notified the department of the officer-involved shooting. Once this process has been completed by the district attorney’s office, only then would pieces of the investigation deemed relevant by the DA be released. This doesn’t bode particularly well for officials who claim they don’t want eyewitness video and footage to be taken out of context, yet are purposely allowing themselves to potentially edit and frame any incident in whatever manner they see fit. This is extremely troubling because as the Voice of San Diego stated in an article from September 2016 in regards to the shooting of Nehad, “What is deemed “relevant” by the DA will ultimately shape how the public understands the case. When Dumanis released video of the April 2015 shooting – again, after being compelled to do so by a court – she also included information she deemed relevant to understanding that shooting. That included YouTube videos of people handling so-called butterfly knives, though the victim in the shooting was not carrying a knife when he was killed.” Unilateral actions such as feeding misleading and unnecessary information to public and press on butterfly knives even though Nehad was not carrying a butterfly knife or any knife at all when he was killed, goes to show just how deep in bed many district attorneys are with police departments that they work with. It is one thing for district attorneys not to prosecute a case; not all shootings are bad, some may even be justified. But, when district attorneys begin to include extracurricular and supplemental material completely unrelated and irrelevant to an investigation to manipulate public perception and create false narratives to justify their decisions not to prosecute negligent and abusive officers, they cease to be upholders of the law, and begin to start functioning as biased PR managers and spokesmen for police departments.

Needless to say, prosecutions of police officers in San Diego County have been exceedingly rare. In fact, according to the San Diego Union-Tribune, only six out of hundreds of police shootings in the county since 1980 have ever been prosecuted. According to United Against Police Terror San Diego, a local watchdog group and advocate for victims of excessive force and police misconduct, has logged 816 individuals that have been killed by San Diego law enforcement since 1980. This means out of 816 fatalities since the ’80s, only 0.7% were deemed unjustified and were prosecuted; that’s less than a percent over a 30+ year time period. Last year in 2015 alone, at least 1,210 people were killed by cops in the U.S. Even if only 1% of those shootings were unjustified at least 12 cops should have been prosecuted. But they weren’t. To date, 0 officers have been convicted of murder or manslaughter charges related to on-duty shootings in 2015. Even seemingly, outrageously open-and-shut cases such as the murder of Sam Dubose by Ray Tensing, a former University of Cincinnati officer who executed Dubose during a traffic stop or Michael Slager, a North Charleston police officer who was caught on a bystander’s cell phone video shooting a fleeing, unarmed, and non-combative motorist Walter Scott 8 times in the back from 18 feet away and planting a taser on his corpse following the shooting have both resulted in mistrials.

Cases like this and countless others that were sabotaged by police, prosecutors and DA’s are a damning indictment of just how foul and broken our justice system is here in this country, especially in regards to holding law enforcement accountable. To believe that absolutely zero cops were guilty of being reckless and/or negligent in 2015 is absolutely bonkers. Not only is it virtually damn near a mathematical and statistical implausibility to believe that absolutely no cops took part in any negligence or wrongdoing in 2015, but to believe so is to believe that cops are batting 1,000 and telling the truth 100% of the time. That is not true. We all know that this can’t be true. Cops get caught all the time lying in less serious offenses to avoid jail time and punishment, in fact, there have been numerous well-documented cases where cops would rather take their own lives than face the prospect of going to prison. I would say we can only imagine to what lengths some police go to worm their way out of accountability and avoid being held responsible for their actions, as well as the lengths the system will bend over backward to defend them tooth and nail, but the truth is we’ve already seen it. We’re currently witnessing it happen right before our very eyes and will continue to do so until we demand a clear, defined and non-negotiable separation between law enforcement and those who are tasked with holding them accountable.

So what is the solution? If not grand juries headed by local prosecutors or charges brought directly from the district attorney’s office who work side by side with the police, then where should we place our trust in to seek justice when police negligence or malice unjustifiably hurt and kill people? Well, the change may already be taking place, and fortunately, some progress is slowly but surely being made. According to the American Civil Liberties Union of New Jersey, in October of 2016, the New Jersey state Senate passed S2469, a bill requiring independent investigations when someone dies at the hands of law enforcement and independent prosecutors for police killings. The New Jersey ACLU also issued a statement applauding the new measure with cautious optimism stating “This bill establishes that, as a baseline standard, investigations will not be tainted by a conflict of interest or the perception of one. The public deserves the security of knowing that an investigation into the most serious action officers could take is conducted as impartially as possible. This bill marks an important step in creating police accountability in New Jersey – but we need to go even further. Police misconduct does not have to result in death to create a tragedy, and investigations must be independent whenever serious injuries during police interactions occur. For the sake of the living victims and those who bear the scars of police abuse, more must be done. The yes vote in the Senate today is a promising start.” While by no means a guarantee of justice, independent prosecutors free of any potentially compromising relationships with police and their departments seem to the public’s best bet for justice when cops engage in misconduct and brutalize and murder with impunity. It is irresponsible and a disservice of the highest degree to victims and their families of police violence and the public at large that we continue to allow prosecutors and district attorneys with such damning and conflicting close ties to the police to investigate them. It is an obvious blatant, conflict of interest that all too often leads to miscarriages of justice in the most egregious form and fashion and allows dangerous, problematic cops to continually shirk the system and allow their string of abuse and violence to proceed unchecked. Could you imagine if we let fast-food chains conduct their own health inspection checks? Or scientists verify their own result without outside peer reviews? Or auto manufactures dictate their own safety standards? Of course not! It would be a gross, blatant conflict of interests that no person in their right mind would allow or be comfortable to allow to continue unabated. This would never happen because oversight is important. Allowing police departments and those closest to them to practically investigate and vindicate themselves in regards to misconduct and abuse not only erodes trust, it endangers the public by potentially allowing problematic cops to fall through the cracks and remain on the job further endangering the communities they’re supposedly tasked with the duty to “protect & serve”.

Photo Courtesy: Roberto Camacho Justice for Alfred Olango March San Diego, CA October 1, 2016