State urged to take lead in probing police-custody deaths

Demonstrators protesting police conduct at a gathering in Capitol Park, Sacramento, October 2014. (Photo: Rachael Towne)

Prompted by police incidents across the country, an effort is under way to make California the first state in the nation to have its top law enforcement officer independently investigate deaths in police custody, bypassing the prosecutors in California’s 58 counties.

Under the plan, the state attorney general would appoint a special prosecutor to direct an investigation when a civilian dies as a result of deadly physical force by a peace officer. The bill, AB 86, is authored by Assemblyman Kevin McCarty, a Sacramento Democrat.

Harris, a former district attorney in San Francisco, has does not support taking prosecutorial discretion away from locally elected district attorneys.

The issue could prove to be politically volatile for state Attorney General Kamala Harris, a Democrat running for the U.S. Senate next year.

“We haven’t heard from her one way or the other,” McCarty said. “But just three weeks ago in her report it did talk about the need for an independent review and more transparency in the process and having select independent review on high profile cases. So we view that as a step in the right direction,” McCarty said.

In the earlier report, Harris directed her office’s Division of Law Enforcement to conduct a review of state special agent forces. One of their key findings – and one on which they are taking action — is a new process intended to enhance transparency after one of their state-level officers is involved in a lethal incident.

That internal process would apply only state special agents, not to local police forces.

Harris, a former district attorney in San Francisco, has not taken a position on McCarty’s bill. But she does not support the idea of taking prosecutorial discretion away from locally elected district attorneys.

She has said the current process of investigating civilian deaths by local law enforcement is effective enough. She also has said that the local district attorneys should have the authority to investigate officer-involved shootings, in part because they are elected by — and held accountable to –local constituents.

“I don’t think there’s an inherent conflict,” Harris said in an interview with The Chronicle back in December. “Where there are abuses, we have designed the system to address them.”

Under current law, if the attorney general believes a peace officer acted in an unlawful way, he or she has the authority to investigate and prosecute such a case. But Harris hasn’t flexed this authority since she was elected – and her predecessors did so only rarely. McCarty’s bill would require that the attorney general get involved in the case.

The bill is in the Assembly, held at least temporarily in the Appropriations Committee, which is examining its price tag.

Fifty of these investigations a year would cost the Department of Justice, the agency that would be responsible for exploring such incidents, in excess of $1 million, according to a committee analysis.

Several high profile deaths at the hands of law enforcement in recent years have catalyzed a national public desire for some type of changes in police-linked prosecutions.

That price tag stopped the bill in its tracks at a recent committee hearing, and it’s currently sitting in the committee’s suspense file. It will be voted on later this month. If it ultimately emerges from the Legislature, to become law it will require the signature of Gov. Jerry Brown – a former attorney general.

McCarty’s bill is not the only legislation prompted by police-linked deaths.

A bill by Sen. Holly Mitchell, D-Los Angeles, would prohibit the use of  criminal grand juries in police-involved shootings or in cases where the alleged use of excessive force by an officer results in the death of a suspect. The 40-member Senate approved the bill 23-12, largely along party lines, and sent it to the the Assembly.

“Criminal grand jury proceedings are secret, not conducted by judges, allow no objections and the evidence presented is chosen only by the prosecutor,” Mitchell said earlier in a written statement distributed by her office. “That process can’t be trusted to indict wrongdoers, to vindicate victims wrongfully killed or to publicly exonerate officers who acted in good faith.”

The million-dollar price-tag for McCarty’s bill may hurt its chances of moving out of the Assembly’s fiscal committee. But it also faces a backlash from law enforcement groups who believe it’s unnecessary and could infringe on their right to equal prosecutions under the law.

Several high profile deaths at the hands of law enforcement in recent years have catalyzed a national public desire for some type of changes in police-linked prosecutions.

“To account for that and to alleviate public concerns… we have seen in Wisconsin and here in our home state that Legislatures have enacted or proposed statutes that seek to provide a degree of independence in either the investigation or the prosecutorial process,” said Chauncee Smith, a racial justice advocate for the American Civil Liberties Union of California, which supports McCarty’s bill.

Wisconsin was actually the trailblazer for independent police investigations by approving a law that moved such cases out of the area of jurisdiction where the incident occurred. Under this law, district attorneys still have the final say in whether or not to pursue charges against an officer, and they have yet to do so.

“You can have an official with law enforcement do the review,” McCarty said, “but maybe you should bring about some real distance from where the incident happened so you can bring more public trust in the process.”

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