Denver Post
Independent review sought for DA decisions in police shootings
Friday, November 21, 2003 -
An independent panel should be created to automatically review prosecutors' decisions not to charge police officers who shoot suspects, said the former head of a panel that reviewed how cop shootings are investigated.
Such reviews would let the public know how prosecutors made their choices, and that could lend credibility to the oft-criticized review process, former Colorado Supreme Court chief justice William Erickson said Thursday. These decisions are rarely examined now, prosecutors say. But a panel would ensure oversight, Erickson said. "I think it's an idea worth exploring," said Erickson, who in 1997, after the controversial death of Jeffrey Truax, headed a panel that examined how prosecutors reviewed Denver police shootings. Truax was shot 25 times by two off-duty police officers outside a nightclub. The officers were cleared by District Attorney Bill Ritter. "A group that would audit the material presented to prosecutors, to be sure the record was complete, might be useful to alleviate some of the controversy around the decisions not to charge," Erickson said. His idea comes on the heels of another officer's being absolved of criminal wrongdoing following a fatal shooting. Ritter this week decided not to file charges against Westminster officer Karl Scherck after Scherck, while off duty, shot a prowler at his mother's Denver home. Part of the problem, Erickson said, is the public's confusion about the difference between a legal shooting and a justified one. A legal shooting is determined by state laws governing an officer's right to use force. Determination of a justified shooting is largely administrative, dependent on a police department's rules of behavior. "The criminal justice system doesn't determine whether it's a good or righteous shooting," former Denver district attorney Norm Early said. "The goal is to see if it's a case provable to a jury beyond a reasonable doubt, and that's a totally different process." Still, Ritter uncharacteristically chastised Scherck for shooting Sergio Alejandro Medrano on Sept. 22, saying Scherck put himself in harm's way, but not in response to a call for help. Ritter refused to call the shooting justified. Some question whether prosecutors are reluctant to charge officers because juries are not sympathetic to victims who are shot while committing crimes. For example, in September 1992, Denver police officer Michael Blake killed Steven Gant, who had a history of problems with police. Blake was charged with second-degree murder but was later acquitted. That was the last time a Denver officer was charged in an on-duty killing. Since then, the Denver district attorney's office has investigated - and cleared - officers involved in 79 other shootings. "'Beyond a reasonable doubt' is a pretty high standard," said attorney Joseph Mellon, who sued the city on behalf of DeShawn Hollis, a teen whom police shot in the back as he fled from a house in January 1998. The district attorney cleared the officer who shot Hollis, but the city paid Hollis $1.2 million to avoid a civil trial. Colorado law, like other states, says officers can use deadly force if they reasonably fear their or anyone else's life is in danger. Prosecutors not only have to be convinced they can convict an officer, but also that the officer cannot prove one of several defenses. The defenses include the officer's saying he feared for his life, saying he was arresting or preventing the escape of someone he believed to have committed a felony involving a weapon, or saying he believed the suspect was likely to endanger someone else if he got away. "The law for officers is clearly different," Early said. "They can shoot fleeing felons. Ordinary citizens can't do that. Officers clearly have greater latitude, and the law gives them that because that's the way we as citizens want it." Citizens in other states like it that way, too. Idaho, Massachusetts, Connecticut and Ohio all have similar laws regarding use of deadly force by police. Most are based on a 1985 U.S. Supreme Court decision that said police no longer could use any force necessary merely to achieve an arrest. They now needed to have a reason to fire. Ritter said he understood this week's decision would not be a popular one, especially since Scherck was wearing shorts, sneakers and a T-shirt that read "Police Officer." Because he is a sworn officer, Scherck is considered a peace officer 24 hours a day, regardless of dress, and he need not even identify himself before firing, Ritter said. Had Scherck been a citizen, the outcome might have been the same. Although Ritter would not discuss the concept, citizen-involved shootings must meet several criteria to be considered legally justified. To use deadly force, one must reasonably believe that a lesser degree of force, such as defending oneself with fists, would be inadequate. Shooters must believe their life is in danger. Or they must believe that the person they shoot is about to use force against someone else during a burglary. A citizen can also break up a kidnapping, robbery or sexual assault with deadly force. Erickson's commission found little wrong with how Denver police and the district attorney evaluate officer-involved shootings. It made a few recommendations, mostly procedural, but offered little substantive advice, since it believed the system to be fair and impartial. The commission even agreed that a grand jury investigation into each police shooting is not a panacea for controversy. Ritter has said he prefers to avoid grand juries because, as a secretive process, they would not allow all pieces of evidence to be made available for public review. Although state laws enacted in 1997 allow grand juries to issue reports about why they opted not to indict someone, it is still a restrictive process, Ritter said. Now, anyone can review Ritter's work, including the investigative files of the Police Department. To date, however, no one has asked to review the public file of the investigation into Scherck's shooting, Ritter said. That's been true of every decision Ritter and his predecessors have made since 1973. More important, if anyone disagrees with Ritter's decision, a judge can be petitioned to review the matter. Only a judge can overturn Ritter's decision not to file charges. But that's never happened, either. |