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 Experts: Criminal charges against officers unlikely
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The
shooting of Sgt. Cornel Young Jr.
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2.8.2000 07:03:09
Experts: Criminal charges against officers unlikely
 But legal scholars say it is possible that Sgt. Cornel Young Jr.'s family could file a civil lawsuit based on wrongful death or civil rights claims.
By TRACY BRETON
Journal Staff Writer
PROVIDENCE —- Legal scholars say they agree with local ministers that an independent prosecutor should look into the fatal shooting of Sgt. Cornel Young Jr. by two fellow police officers.
But they also say that based on what the evidence is thus far, they believe it unlikely that either of the two police officers would be indicted for killing Young.
They say, however, that the City of Providence and the officers who killed Young could be sued by Young's family for monetary damages based on wrongful death or civil rights claims. The likelihood of success in the civil arena is unknown, but the burden of proof is much lower than in a criminal case.
Harvard Law School Prof. Alan M. Dershowitz said he believes the Young family "should get some money without regard to who was at fault; if it's not judicial, it should be legislative," he said in an interview. "But that doesn't mean anyone should go to jail."
Law professors interviewed by The Providence Journal during the last week could not recall one case in which a police officer had been convicted of killing a fellow officer where the defense of mistaken identity in a crisis situation had been raised.
And the newspaper has found that even when killings were not the result of a split-second decision, grand juries have been loathe to indict police officers for killings.
In 1994, for example, an Orange County, Calif., grand jury rejected a district attorney's recommendation to indict a sheriff's deputy for manslaughter after he pointed a loaded handgun at the face of a fellow officer during a Christmas Day training session and accidentally killed him. The district attorney found that Brian Patrick Scanlan's use of a loaded gun during training met the legal standard of "aggravated, reckless and gross negligence."
That case has some similarities to the Cornel Young Jr. case. The victim, Deputy Darryn Leroy Robins, was black; the deputy who killed him was white; minority groups voiced fears that the death of a black deputy would not be probed fairly in a county where grand juries are overwhelmingly white.
The U.S. Justice Department later investigated the case. But it, too, declined to prosecute Scanlan, concluding the shooting was accidental and not motivated by race.
Another case -- even more similar to Young's -- occurred in Washington, D.C., on Feb. 7, 1995. James Madison McGee Jr., a black police officer, was off duty and in civilian clothes when he jumped out of a sports car with gun in hand and tried to stop a taxi robbery in progress. Officer Michael Baker, who was on duty and in a patrol car, happened upon the robbery and "in the darkness and heat of the moment, the officers did not recognize each other or hear one another's yells," the Washington Post reported. Baker, who is white, shot McGee twice. McGee died.
A subsequent investigation cleared Baker. Prosecutors also determined that the armed holdup had ended by the time the shooting occurred and there wasn't enough of a link to warrant felony murder charges against the robber.
While the hurdle for prosecution remains very high, The Journal has found a willingness on the part of municipalities to compensate families of police officers who are slain by fellow officers.
The City of Dallas has spent more than $1 million in out-of-court settlements and legal fees resulting from the 1991 slaying of an undercover narcotics detective who was accidentally shot and killed by other officers during a botched drug bust.
An internal investigation found that three officers violated the Police Department's shooting policy by firing their weapons at a target they couldn't clearly see through the car's tinted windows. The chief of police overruled departmental investigators and cleared the three officers but upheld another finding that another detective and the sergeant in charge of the bust had erred.
Dershowitz, of Harvard Law School, says that it has only been within the last decade or so that cases of interracial police killings have been reviewed by grand juries.
"Historically, whenever policemen claimed they acted reasonably, prosecutors chose not to further investigate. But now, in virtually every case involving an interracial killing, where the alleged perpetrator is a policeman, they have to do a grand jury investigation. Politically, they just can't not do them anymore," Dershowitz said.
Dershowitz says that one question raised by the Young case is: Can a police officer's racial perceptions be taken into account in deciding whether he acted reasonably?
An off-duty black police officer who is not in uniform "stands statistically more likely to be shot than a white police officer," Dershowitz said.
"A white police officer sees a black person not in uniform and doesn't recognize him and the black person has a gun in his hand. We're talking instinctive action. You can't expect refined sociological calculation when you're in a crisis situation," Dershowitz said.
From what he's seen thus far, the Young shooting doesn't appear to be anything willful, Dershowitz said, but "a horrible, terrible mistake."
Prof. Michael Avery, of Suffolk University School of Law, says that it's premature to determine whether the police officers who shot Young should be indicted. "What justice demands here," he said, "depends very much on what the facts are. There are two essential questions" that need to be addressed, Avery said: "Was it reasonable for these officers to think Officer Young posed a threat to the life or safety of another person and was it reasonable for them not to know that he was a fellow police officer. The first question depends a lot on where he was standing and where he had his gun pointed and how much time they gave him to drop the gun after giving the order to drop the gun, which shot was the fatal shot and how much time there was between the shots."
Avery said that "there's [also] a big question of whether race played a factor and was the officers' perception that Officer Young posed a danger influenced by race, and if so, how much . . .
"Are the officers assuming a person is more dangerous because he's black and is this a conscious or unconscious assumption? These are subtle questions," Avery says, "and it would be very hard to address them in a criminal prosecution unless there's blatant evidence that race played a factor here."
Yesterday, Atty. Gen. Sheldon Whitehouse rebuffed demands from local ministers to relinquish control of the grand jury investigation or disqualify Providence police officers from participating in the probe of their own officers' actions. Whitehouse named six Providence police officers to be members of the criminal investigative team that will be sworn in as agents of the grand jury. Two state police officers, as well as a special agent of the U.S. Department of Alcohol, Tobacco and Firearms, were also named to the team.
IN RHODE ISLAND,
most criminal cases are brought to court by a process known as information charging -- where a police officer brings evidence to a prosecutor for review and then the prosecutor alone makes the decision as to whether to bring someone to trial.
But if the crime under investigation is a capital offense -- one punishable by up to life in prison -- the case must be presented to a grand jury. Prosecutors also have the option of presenting any other case to a grand jury -- instead of using the information-charging process -- and this has historically been done in high-profile cases.
In the case involving the death of Sergeant Young, Attorney General Whitehouse has no choice: he must present the case to a grand jury for review because one man, Aldrin Diaz, has already been charged by the police with felony murder, a crime that carries a potential sentence of life in prison.
The grand jury would also have to decide whether any criminal charges should be brought against the two police officers who shot and killed Young. The police say that in the early morning hours of Jan. 28, Young, who was off duty, emerged from Fidas Restaurant on Valley Street -- with gun drawn -- to assist the two patrolmen quell a disturbance. But after Diaz dropped his gun, the officers fired at Young, thinking he was a suspect as well. Police said Young was ordered to drop his gun, but didn't.
ACCORDING TO
legal experts, the potential charges a grand jury could consider against the two officers, Patrolmen Carlos A. Saraiva and Michael Solitro III, include voluntary manslaughter and murder. First-degree murder carries a mandatory life sentence; second-degree murder carries a sentence of 10 years to life; manslaughter carries a sentence of up to 30 years' imprisonment.
However, the grand jurors could vote not to indict the officers on any charges if they determine that the officers acted either in self-defense or to protect the lives of others.
The grand jury is a body of people whose primary function is to determine whether to bring a formal criminal charge, known as an indictment, against someone. The grand jury consists of not more than 23 nor less than 13 people -- people who are 18 or older and who are chosen by lottery from the state's voting and motor-vehicle records.
The Young case could be heard by the Providence County grand jury, where the jurors serve for six weeks. Or it could be heard by a statewide grand jury, comprised of people who sit for a period of six months but whose terms can be extended for a total of 18 months.
The grand jury process is a one-sided affair conducted in secrecy. A prosecutor presents evidence and witnesses, and advises the grand jurors on the law to be applied to their deliberations. The grand jurors must decide by majority vote -- usually without hearing from the target of the investigation -- whether they believe sufficient evidence has been presented to return a "true bill" against a defendant. The prosecutor is never present when the grand jury deliberates.
If a true bill is returned, the attorney general must then return a formal criminal charge or charges against a defendant in the form of an indictment in Superior Court. The grand jury may vote to indict on some charges and not others but legal experts say that in the vast majority of cases, grand jurors vote to indict on whatever offenses the prosecutor presents to them.
In the past in Rhode Island, attorneys general have infrequently granted a request from a defendant to testify before the grand jury, but this is not a matter of right and usually, prosecutors do not honor such requests.
If the grand jury decides by majority vote that there is insufficient evidence to charge someone, it returns a "no-true-bill" and no charge is brought against a defendant. But if the police later gather new evidence, a grand jury could look at the same case again.
Depending on the amount of evidence and the complexity of the case, grand juries can hear evidence within a few days. But many grand jury investigations take weeks and occasionally, years. Three different grand juries heard the case against former Rhode Island Gov. Edward D. DiPrete and his son, Dennis L, DiPrete, over three years before issuing a multi-count racketeering, bribery and extortion indictment against the pair.
In order to determine whether Patrolmen Saraiva and Solitro did anything wrong, former Atty. Gen. Jeffrey B. Pine said there will have to be a painstaking analysis.
Pine said last Friday on CNN's
Burden of Proof
that "what we need to do is embark on an investigation by finding out frame by frame and piece by piece what happened in those crucial seconds when Sergeant Young lost his life. We need to find out in an almost millisecond kind of way," Pine said.
Dershowitz and Prof. Andrew Horowitz, of the Ralph Papitto School of Law at Roger Williams University, say it is a mistake for Whitehouse to hang onto the investigation in the face of public concerns about his impartiality.
"Sheldon Whitehouse has lost most, if not all, of his credibility in the minority and civil rights community here," Horowitz said.
Dershowitz -- who has represented such celebrities as Claus vonBulow, O.J. Simpson and Leona Helmsley -- says that an independent counsel/investigator is essential to ensure public faith in the system.
"In Rhode Island, nobody knows whether anything's ever straight," Dershowitz said, harkening back to a chapter in a book he wrote about the vonBulow trial in which he criticized Rhode Island as having a too-cozy system of justice.
Dershowitz said that the way a prosecutor presents the case to a grand jury will probably determine whether indictments result. "You can get a grand jury to indict a ham sandwich," he says.
Dershowitz said that usually, if police officers are given an opportunity to testify before a grand jury that is investigating a shooting they say is accidental, "they walk because people understand there are two nightmares police have: 1) they believe they are shooting at an enemy and the enemy turns out to be a friend and 2) they assume someone is a friend and they end up getting shot.
"I, for one, find it hard to second-guess police in these crisis situations," Dershowitz said.
And, he says, that "unless you can show this is an out-and-out racist killing and that there was some prior animus toward Young and that they recognized him -- and there's no evidence of these things at this point -- it sounds to me like it ought not to be an indictable case."
But Dershowitz and other legal experts say that other action -- short of criminal prosecution -- could be taken against the police officers who shot Young.
It's possible they could be fired if there was evidence they were negligent, Dershowitz said.
But in 1983, the 1st Circuit Court of Appeals in Boston ruled that police officers were not liable for wrongful death because the force they used in attempting to stop the person who died was justified under the circumstances.
Prof. Karen Blum, of Suffolk University School of Law, says she sees no basis at this point for firing Saraiva or Solitro. "They were doing their job. If they felt this guy was threatening the other people with a gun, their job is to protect people from the threat of harm," she said.
But Blum says Young's family could pursue a lawsuit under Rhode Island's wrongful death statute or in the federal court, as a Fourth Amendment civil rights unlawful "seizure" case.
For a federal suit, "the test would be whether the officers' conduct was objectively reasonable given the totality of the circumstances confronting the officers at the time. In deciding whether a reasonable, properly trained officer would have responded as these officers did, the factors to consider would include the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers or others, and whether the suspect was actively resisting arrest or attempting to flee. The 'suspect' in this case would be Young," Blum said.
"The objective reasonableness test should be applied from the perspective of the officers at the time, taking into account the need for split-second judgments in tense, rapidly developing situations," Blum said.
She said a full investigation of the facts is necessary in the Young case because, from what she has read thus far, "it appears that the officers who did the shooting believed that Young was threatening the young women who were in the car" and that his gun was pointed at the car's occupants.
Unless new evidence emerges, she said, "there's no question in my mind that these officers would not be held liable for anything here." In looking at the issue of excessive force, police officers are provided "a double layer of protection. Even if a jury decides that his conduct was in fact objectively unreasonable, the court could determine that a reasonable officer, in these circumstances, could have believed that his conduct was objectively reasonable," she said.
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