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VICTIMS' FAMILIES DESERVE A VOICE IN INQUEST PROCEEDINGS
Many police shootings are, indeed, fully justified. No one wants an environment in which an officer needs to seriously worry about losing his career or going to jail because he or she had to make a split-second decision to bring down an armed assailant who appeared ready to kill again.
And the Clark County coroner’s inquest system is actually more open and transparent than those used in many jurisdictions, where closed-door reviews of fatal police shootings can create the impression that police killings are systematically whitewashed.
In Southern Nevada, any police officer who has killed someone is subjected to a coroner’s inquest, at which a citizen jury hears testimony from police officers, eyewitnesses and the coroner. These inquests have the appearance of legitimacy -- they take place in a courtroom that’s open to the press. A robed hearing master presides over the inquiry, and a prosecutor questions witnesses.
But any semblance of objectivity ends there.
Though authorities contend these hearings are “open to the public,” no dictionary bearing their definition of that phrase can be found outside of “1984.” What county authorities mean by “open to the public” is that armed bailiffs physically block any entrance to the hearing room by members of the general public who wish to attend unless those citizens wear a badge or can otherwise prove they’re “invited guests of the coroner’s office” -- even when empty seats remain in the courtroom.
Needless to say, this makes a mockery of the hearing officer’s subsequent call for “anyone here who has any information that would be relevant to this case ... to come forward.”
Family members of the deceased are allowed to attend, but are not allowed any discovery, meaning neither they nor their legal representatives can get an advance look at evidence, sworn statements, or a list of witnesses. Although anyone attending an inquest (see above) is supposedly allowed to submit questions, they must be sent to the hearing master in writing, and the hearing master rarely asks them. No one representing the victim is allowed to cross-examine anyone.
For instance, the family of the late John Perrin, a pedestrian armed only with a basketball, at whom Officer Bruce Gentner emptied his full 14-round clip of .40 S&W in April of 1999 (hitting with six), wanted the hearing officer to ask Officer Gentner if he’d been using steroids or other drugs on the night of the shooting. But that question was never asked.
The hearing master begins by informing prospective jurors they may sit on the case only if they agree in advance to “render a vote” based on “the instructions that I will give you” -- a demand in direct defiance of such higher-court rulings as U.S. vs. Moylan, 1969 (“We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge,”) and U.S. vs. Dougherty, 1972 (“The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions from the judge.”)
Then -- after invariably conciliatory questioning of police by the district attorney -- the hearing officer instructs jurors that they must exonerate if the officer believed there was a threat to his life or the life of others.
In the Perrin inquest, for example, the foreman of the coroner’s jury that cleared Officer Gentner said the jury tried to attach to that verdict a statement advising police not to return the officer to the streets -- to no avail.
Officer Gentner went too far when he shot Mr. Perrin, jury foreman Mark LePage said at the time. “We all had reservations about what had happened,” he said, but the judge’s instructions led jurors to believe “we couldn’t convict him. ... The way the system is now, the cop always walks. I think you need to change the law, because it is wrong.”
Gary Peck, executive director of the American Civil Liberties Union of Nevada, agrees. Following U.S. District Judge Roger Hunt’s 2001 decision to allow a civil suit to proceed in the Perrin death (since “Metro was on constructive notice that Gentner was not only a potential threat to public safety, but that he regularly flaunted constitutional safeguards intended to protect citizens against the use of excessive force,”) Mr. Peck said Judge Hunt’s ruling “makes plain what a travesty the coroner’s inquest system is and how badly it needs to be reformed to allow for meaningful challenges to official police versions of events by those who have reason to be skeptical.”
An attempt at such reform is finally underway. In a closed session Monday, a committee including outgoing Sheriff Bill Young and representatives of the ACLU finally issued its recommendations for reform.
The recommendations would replace representatives of the district attorney’s office -- who work with Metro police on a daily basis -- with lawyers from the state attorney general’s office. The group also recommends replacing the current hearing officers with local justices of the peace -- chosen at random -- and allowing family members of shooting victims to ask questions in open court.
Those sound like considerable improvements, and worth a try -- except for a provision that the justice of the peace would still retain a power of prior restraint over what questions are asked.
That hardly sounds like a “cross examination.” Obviously, any judge can and will halt questioning which strays to subjects not at issue. But if no one is given any opportunity to aggressively challenge apparent contradictions or undocumented assertions “in real time,” citizens can rightly ask whether this call to “allow questions” is just another word game.
Clark County District Attorney David Roger warns that an adversarial hearing could scare police away.
But -- especially in cases where police have killed someone who was handcuffed and/or unarmed -- submitting to a few minutes of “hard questioning” hardly seems too much to ask. (It certainly would have been elucidating to see Metro officials cross-examined about why they never did their promised chemical tests on both men’s clothing after Officer George Pease shot Henry Rowe in 1996, offering up an odd tale of the homeless man taking away the officer’s gun, firing it four times, and missing with all four shots. The chemical tests would have told whether the cop was lying ... but they were never done.)
And police officers who decline to participate in this procedure can still be disarmed, charged, and advised to hire a lawyer -- the fate which awaits most “civilians” who shoot an assailant -- if they prefer.
Even Sheriff Young has acknowledged there are problems with the inquest process, and says he now supports the presence of a victim advocate at coroner’s inquests.
“As long as it’s a fair question and a legitimate question, why would a police officer be bothered answering it?” the sheriff asks.