Objectivity Questioned in Shootings Probe
Washington Post Staff Writer
Thursday, March 11, 1999; Page A1
Lawyers who sue the D.C. police in shooting cases are questioning the objectivity of an unprecedented Justice Department review of police shootings in the District because it is headed by the man responsible for many of the original investigations.
That man, Deputy Attorney General Eric H. Holder Jr., was the District's chief prosecutor from 1993 to 1997, a period when police shootings in the city rose sharply.
"When I heard who was conducting the review, I could just feel my blood boiling because you've got the hen guarding the foxes," said Michael Morgenstern, the attorney for a couple who collected $150,000 from the District after their son was shot and killed by a police officer in 1995. "He had the opportunity to do this when he was there, and now all of a sudden, they're sending him back to do the same job he didn't do while he was there."
The initiative marks the first time a police department has asked Justice for a comprehensive review of its use-of-force policies. But the compliments are undercut by complaints from lawyers like Morgenstern who believe Holder is essentially reviewing himself.
Responding to written questions from The Post, Holder's office said no conflict existed: "Deputy Attorney General Holder's oversight of the review signifies the importance of this endeavor to the Department of Justice. . . . The prosecutive decisions made in specific individual cases by the U.S. Attorney's Office differ fundamentally from the current civil review, which more broadly assesses [D.C. police] policies, procedures and practices."
Carried out by Justice's civil rights division, the review will focus on weaknesses in training, supervision and investigation, rather than individual shootings. Criminal referrals could be made if the evidence warrants, a Justice spokeswoman said.
Holder's defenders say it is nonsense to question his objectivity. David Schertler, who was chief of the homicide section in the U.S. attorney's office during Holder's tenure as U.S. attorney, supervised fatal police shooting investigations and says all were thoroughly examined. Now in private practice, Schertler said the U.S. attorney's office regularly consulted with Justice's civil rights division on tough cases and predicted the current review will trip over some of the same cases.
"I find it hard to believe they would come to a different conclusion after such a thorough investigation by the U.S. attorney's office and the Department," Schertler said. "These cases were reviewed, not just by one but by many supervisors, all the way up, in many cases, to Eric Holder."
A closer look at the role of Holder and the U.S. attorney's office shows the difficulty that arises when law enforcement investigates itself. It also shows that legal obstacles may prevent prosecutors from bringing criminal cases against police officers, even when officers shoot people improperly.
Police defenders say officers must make snap decisions that are difficult to question. "These are very, very difficult cases to investigate because they involved second-guessing officers about split-second decisions in which their lives may be at risk," said Joseph diGenova, who was the District's U.S. attorney in the late 1980s.
But plaintiffs' attorneys and longtime observers of the D.C. police contend prosecutors lack the will to pursue cases aggressively.
"The U.S. attorney's office depends on cops, needs their cooperation and doesn't like to indict cops. I think anybody in that position is going to be predisposed not to indict," said Geoff Allen, a lawyer who recently negotiated a $250,000 settlement from the District for the police shooting death of 18-year-old Eric Anderson.
Holder's tenure as U.S. attorney coincided with a sharp rise in police shootings in the District in 1993. By 1995, police shootings had doubled over 1988 and a record 16 civilians were killed by officers.
During that period, Holder's office charged two officers with lying about their roles in a fatal 1994 shooting. But in an interview with The Post last September, Holder said he did not detect a pattern of problematic police shootings and could not recall the specifics of cases he personally reviewed.
"I can't honestly say I saw anything that was excessive," Holder said.
The Post series found that several of the shootings were ruled unjustified and others contained evidence contradicting officers' accounts. It also revealed that more than 50 officers over five years had shot at unarmed drivers in cars. Officers generally are prohibited from firing at vehicles. Holder and other top former prosecutors said they did not see a troublesome pattern in the car shootings.
Both Holder and the U.S. attorney's office refused to answer questions about the handling of specific cases, citing concerns about privacy and grand jury secrecy.
Officials who have reviewed fatal police shootings in the U.S. attorney's office stress how tough the job is. Under the law, if an officer had a reasonable belief that he or she was in danger, a shooting is justified – even if the belief turns out to be wrong, Schertler said.
"If there is some threat to an officer, it's difficult to make the case that he was acting recklessly," he said.
An officer cannot be criminally charged for failing to use good police tactics or for exercising poor judgment, prosecutors say.
A shooting may fail to meet the high standard of a criminal case yet still result in a successful civil case, with a lower standard of proof, prosecutors say. A shooting by an officer who escapes criminal charges may still be found unjustified and the officer may be fired for violating department standards.
"There is a gap between what a department may regard as unjustified and improper conduct on the part of an officer and what a prosecutor may regard as criminal conduct," Schertler said.
In some cases, Schertler said, "there were questions about the propriety of the conduct," but "we just didn't have sufficient evidence to prove that the officer committed a crime. . . . It might have been bad judgment, it might have been a mistake. There is a gray area there."
Attorneys for the survivors of police shooting victims say that prosecutors have not diligently patrolled that gray area.
The lowest felony charge that an officer may face in a fatal shooting is involuntary manslaughter, which requires "a gross deviation from a reasonable standard of care," the law says. In other words, officers who make deadly mistakes may be charged with a crime – if the mistake is egregious enough.
"Reckless behavior on behalf of a police officer could constitute manslaughter," Schertler said.
In its eight-month investigation, The Post found several cases in which evidence contradicted officer accounts. In some, the shootings were found to be unjustified but no criminal charges were brought:
During a June 9, 1996, traffic stop, then-D.C. police officer Terrence Shepherd shot and killed Eric Anderson, 18, an unarmed driver, with a single bullet. Shepherd walked up behind a police lieutenant who had stopped Anderson's car and asked for identification. The lieutenant later said he did not know Shepherd was behind him until the shot was fired.
A police captain on the scene later testified that Shepherd told him that he touched his gun's trigger and it "went off." Shepherd gave no interview to detectives that night. He gave a statement to the U.S. attorney's office seven months later.
Shepherd said he fired because Anderson posed a threat by rummaging inside his car's console as if to find a weapon. Anderson's car was in gear and could have run the officers down, he said. None of the other officers on the scene saw the same threat, and Shepherd's account was contradicted by physical evidence.
In December 1997 – 18 months after the shooting – the U.S. attorney's office declined to prosecute Shepherd. In the administrative review two months later, a police lieutenant classified the shooting as unjustified and recommended that Shepherd be cited for "using unnecessary and wanton force" and making false statements. The district commander approved the unnecessary force citation but rejected the lying citation. Shepherd was fired last fall.
The District paid $250,000 to settle a lawsuit brought by Anderson's parents.
On May 15, 1995, then-D.C. police officer Vernell Tanner shot and killed Kedemah Dorsey, an unarmed 16-year-old, at a traffic stop. Tanner was standing next to the driver's-side window of Dorsey's car when Dorsey turned the car suddenly to the left.
Tanner fired a bullet into Dorsey's chest, and as witnesses watched, ran alongside the car and fired a second bullet into Dorsey's back. Tanner said he feared that Dorsey was going to crush his leg when the car lurched.
Witness Doug Sparks, a lawyer who handles civil cases involving allegations of excessive police force, said he thought he was witnessing a drug murder. "That boy did not have to die," he said.
Police department investigators ultimately ruled that Tanner's first shot was justified because he feared for his life. The second shot was ruled unjustified. The District paid $150,000 to settle a civil case brought by the youth's parents.
In the criminal review, Assistant U.S. Attorney Kenneth Wainstein questioned Sparks and Dorsey's parents and left them with the impression that his office would prosecute.
"My distinct impression was that he wanted to have the case indicted, that he thought it was an appropriately indictable case and he was pushing to have it indicted," said Sparks, a partner in a law firm with Geoff Allen that specializes in excessive force cases involving police.
Morgenstern, Dorsey's lawyer, also said Wainstein was extremely disturbed by the case.
"The [assistant U.S. attorney], after asking Mr. Dorsey questions, shared with us that the Dorsey case, in his opinion, was the worst case that he had seen, number one, the absolute worst case that he had seen," Morgenstern said.
The office ultimately declined to prosecute. Wainstein refused to comment on the case. "I can tell you that your thumbnail sketch is not accurate," Wainstein said of Sparks's version of events.
Schertler would not discuss the case beyond saying, "A lot of times you are in a tough position of trying to reconcile very different versions of the events from several witnesses." He said the case was carefully reviewed, both within Holder's office and by the Justice Department.
In some jurisdictions, the evidence gathered in a police shooting investigation is presented to a grand jury made up of citizens from the community, which votes on whether an officer should be indicted. In the District, even highly controversial cases have not been presented to grand juries.
One such case involved the 1994 police shooting of Terrence Hicks, who was holding his mother at knife point when six officers burst in and fired 23 times, killing him. The department ruled the shooting justified.
Greg Lattimer, the attorney for Hicks's family, said that evidence showed one officer shot Hicks four times in the back while he was on the ground, unarmed. The officer was never interviewed by the U.S. attorney's office or called before a grand jury, Lattimer said.
"A guy is admitting to you, 'I shot him in the back, four times, on his hands and knees, while he was unarmed, until he stopped moving,' " Lattimer said. "And you don't even interview him?"
Last spring, a D.C. Superior Court jury awarded a $6.1 million judgment against the District in the shooting. The District is appealing.
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