By Gavin Ellis & Michael Harrison,
Assistant District Attorneys, and
Tony Rose
District Attorney Investigator, in Harris County
Prosecutors do not get to decide when and where officer-involved shootings occur. We can only decide how we respond to them. As prosecutors, we often have the final say in the way these cases are reviewed, presented to grand juries, and, at times, charged and prosecuted. With such great responsibility, the onus is on us to be familiar with shooting incidents and how they are investigated.
The Washington Post newspaper maintains a database of officer-involved shootings (OISes) occurring nationally.[1] This database indicates that, from 2015 to 2020, Texas accounted for 526 of the 5,950 officer-involved shootings across the country, which is a population-commensurate 8.84-percent of all OIS incidents. The majority do not result in criminal charges against police. These shootings are not, however, immune to the understandable scrutiny and criticism that often accompanies grief and frustration. By default, as prosecutors and investigators, we are not exempt from the scrutiny or the responsibility of navigating these legal minefields with professional poise and ethical grace. The police we work alongside may look at us with skepticism, advocates may question our pace and motivation, and our fellow prosecutors may even question our discretion. Our greatest allies in handling these complex investigations come from the guiding hands of an objective approach, an open code book (from our friends at TDCAA), and an evidence-based review and presentation of the facts.
The investigations related to the killings of Laquan McDonald, Daniel Shaver, Breonna Taylor, and numerous others have shed even more light on the importance of conducting complete and objective investigations of police shootings. These complete and objective investigations must begin on the scene, immediately after the incident occurs.
Interacting with police
One of the most difficult tightropes to walk during these investigations comes from navigating the balance of being law enforcement while also investigating law enforcement. This balance becomes particularly difficult when approached with the Venn diagram of two separate but related investigations that arise from the same incident and share much of the same evidentiary content. When at all possible, it is prudent to have different attorneys handle the officer-involved shooting investigation and the investigation into any separate criminal suspects (when applicable). Having the same attorney simultaneously investigate a potential suspect who was shot and the police officer who shot him can invite questions about impartiality and bias. It is not uncommon for police to ask on-scene ADAs to draft search warrants or accept charges against civilian suspects while investigating OIS scenes, but doing so can create complicated dilemmas for on-scene prosecutors. One prosecutor accepting charges against a suspect on-scene while simultaneously investigating an officer may create unintentional implications regarding a prosecutor’s opinions of the legality of the officer involved shooting, the immediate necessity of force, or the prosecutor’s ability to judge the actions of either party impartially. Further, these decisions are sometimes made before body cameras have been reviewed and the OIS investigation has been completed.
Consider the awkward possibility at trial of trying a case against an officer and sponsoring the testimony of the victim you, personally, charged with a felony while on the scene. Maintaining a cordial and respectful relationship with the parties on scene, being conscious of the laws related to these incidents, and gathering enough information to kick off an investigation can be a laborious set of tasks. Having different attorneys handle separate arenas of the investigation allows prosecutors to narrow their legal focus and analysis, while also avoiding certain questions of prejudice and self-service.
It bears noting that we are not naïve to the realities of working in a resource-strapped, personnel-limited profession. We recognize that making every scene and having separate attorneys handle distinct arenas is not always a practical possibility for every office, especially some of the smaller offices in the state. This does not mean, however, that prosecutors are relieved of their responsibility to be consciously and logistically prepared for these situations when the necessity arises.
Walkthroughs
The on-scene investigation will likely involve a “walkthrough” with the shooting officer(s). Walkthroughs involve the officers providing a spoken explanation of the events that led up to the shooting, how and where the shooting occurred, and why the officer discharged his weapon. In most cases, walkthroughs are unsworn. Assistant DAs, DA investigators, homicide detectives, Internal Affairs officers, and tactics officers are often present to observe the walkthrough, but the group will vary from scene to scene and agency to agency. More on walkthroughs in a bit.
Determining whether the walkthough will be recorded is usually up to the officer and his attorney, as well as the practices of the investigating agency. Some DA’s offices may have agreements by which they conduct parallel investigations separate from the investigating police agency, while others will review the investigation conducted by the police agency, then supplement the investigation where necessary.
Officer statements
Voluntary sworn statements are generally conducted after the on-scene investigation. Much like a walkthrough, these statements are voluntary and provide detail and explanation of the shooting incident. A voluntary statement can generally be used as an evidentiary basis for prosecution. In contrast to the on-scene walkthrough, these statements are most commonly written and sworn. A 48-hour rule may be in effect in your county. Such rules allow officers to review evidence and wait 48 hours before providing a statement.
If an officer provides a statement that is involuntary and as a condition of the officer’s employment, it will be considered a Garrity statement and therefore inadmissible as evidence.[2] Understanding Garrity v. New Jersey plays a very important role in avoiding prosecutorial pitfalls with officer statements. The impact of Garrity goes beyond preventing the admission of the evidence. Kastigar v. U.S. states that prosecutors cannot rely upon Garrity material as a basis of the case they are bringing,[3] nor can the State make “derivative use” of the material. The intention of the Kastigar opinion is to leave prosecutors in the same position as they would have been without the statement.
Be sure to review your office policy on handling Garrity material, and reach out to fellow prosecutors to make sure it is handled or excluded properly in your cases.
Reporting to office leadership
Communication with your superiors and office leaders after making the scene of a shooting is imperative. Officer-involved shooting incidents often garner a high level of media and public attention. Your elected DA or immediate supervisor may need to respond to questions about the incident and the investigation. Providing them with a synopsis of the current state of the investigation and what happened on scene can help them provide answers to their constituents and the media. This can be done personally or by email. These synopses can also help with refreshing your own recollection of the case while reviewing the investigation or before presenting the case to a grand jury. In these communications, it is important to not make or convey conclusions about the legality of a shooting before the full investigation has been completed. Like most other aspects of prosecution, accurate documentation, effective communication, and complete, evidence-based review prove invaluable through the span of an investigation.
The DA investigator’s perspective
DA investigators can play a crucial role in the review and investigation of officer-involved shootings. Like many investigators within police agencies, investigators in our office’s Civil Rights Division rotate as primary on-call for one week and on-call as secondary (back-up) for an additional week. There have been times when there were two separate officer-involved shootings at the same time but at different locations in Harris County, requiring two teams of attorneys and investigators.
DA investigators are tasked with responding to the scene and assisting the ADA and local law enforcement agency with investigating and reviewing the shooting. When the phone rings at 2 a.m. from the scene of an officer-involved shooting, where do you, as the DA investigator, begin?
Upon arrival at the scene, make contact with the ADA and lead investigator for the LE agency, and begin gathering preliminary information: what happened, who was involved, and case numbers. Obtain the names of all officers involved, their attorneys, and the injured or deceased person who was shot. Did the involved officer(s) have body worn cameras (BWCs) that recorded the incident? Are the BWCs available for viewing at the scene? Contact the Crime Scene Unit (CSU) and advise that you will need to be present for the charting of weapons. While you and the ADA wait for the agency to finish speaking with witnesses and collecting evidence, take photographs of the scene.
A walkthrough of the incident by the shooting officer is an important step in the investigation and assists with locating additional evidence, such as spent cartridge casings, bullet trajectories, distance, and surveillance videos. At the start of the walkthrough, everyone participating should introduce themselves. This is a good opportunity to ascertain if the officer has been involved in any other OISes, how long he has been an officer, and what assignment he had during the shooting (patrol, undercover, off-duty, etc.). Take notes on what the officer describes during the walkthrough. Keep in mind that only criminal investigators should be asking questions during the walkthrough, usually the lead investigator and the DA investigator; generally speaking, Internal Affairs investigators should not ask questions at this time. Given that Internal Affairs are administrative investigators on policies and procedures as it pertains to employment, any answers to questions these officers ask could be viewed as Garrity statements. If an on-scene prosecutor has questions or needs clarification, such questions can be asked through the DA investigator.
Upon completion of the walkthrough, the officer’s weapon(s) should be charted at the scene, as should any weapons used by the injured or deceased suspect. Weapon charting is the process of cataloging the firearms used, along with the remaining ammunition. Prior to charting, obtain photographs of the officer as he presented at the time of the shooting; this is to show how the officer appeared during the incident (whether he’s in uniform, in tactical or raid gear, wearing civilian clothes, etc.). CSU will usually chart the weapons as investigators observe while taking notes and photos. While no two scenes are identical, the general procedure is as follows: Photograph the officer’s weapon on all sides and obtain the serial number. Make note of any attachments or modifications to the firearm. As CSU ejects the seated magazine and any chambered cartridges, note the chambered cartridge’s make and caliber. As the cartridges are removed from the magazine, it is important to note the make and caliber of each cartridge in the order it was removed. Note the magazine capacity, and take photographs along the way. Do the same for each additional magazine and any backup weapons the officer possessed during the shooting.
Additionally, ensure CSU obtains DNA swabs of the suspect’s weapon and chart it using the same technique as the officers. The weapon charting is compared to the spent cartridge casings at the scene. Ensure the caliber and number of spent cartridges align with the weapon charting. In a shooting incident where multiple officers discharge, the spent cartridge casings and recovered projectiles can be compared to the weapons to determine who fired which shot. Photograph all sides of the officers and any injuries they may have sustained. If there was a struggle for an officer’s weapon, make sure it is swabbed for DNA prior to charting.
Determine whether the person who was shot is at the hospital or deceased on the scene. If injured and at the hospital, have the lead investigator provide the Medical Reference Number (MRN) from the hospital, which will be a big help in obtaining a grand jury subpoena for medical records. If this person is deceased on the scene, wait for the medical examiner and obtain her information and medical case number.
After the investigating agency has completed its investigation, obtain a complete copy of the case file, and review it in its entirety to prepare an internal report for the ADA to review. Ensure that the videos, evidence, and witness statements match the officer’s walkthrough and statement.
Presenting to grand juries
Many jurisdictions are moving toward requiring that all officer-involved shootings be presented to grand juries. As officer-involved shooting cases become a growing concern for the public, the need for transparency and community involvement has also grown. Grand juries are meant to represent the will of the community. As such, presenting these cases to grand juries can instill a greater degree of trust in the process than having a single prosecutor close a case by memo based solely upon his own perspective.
Supplementing the agency’s investigation
An officer-involved shooting investigation will likely have been reviewed by several police investigators by the time it makes its way to the prosecutor’s desk in preparation for grand jury presentation. However, it is very important for the ADA to thoroughly review the whole investigation for a few reasons. First, investigators are primarily concerned with fact-gathering. Prior to a prosecutor’s review, the facts of the case have likely not been viewed critically through a legal lens. Legal context separates important facts from inconsequential details. The investigating agency, as well as the DA investigator, may reach a conclusion in the investigation, but the investigator’s conclusion alone is not a sufficient substitute for the attorney’s legal evaluation. It is the attorney’s duty to comb through the investigation and apply the law to the facts.
Furthermore, it is not unusual for a police investigator’s description of use-of-force to be slightly slanted in favor of the fellow officer’s conduct. For instance, an investigator’s report may describe what he sees in a video of the incident thusly: “The officer guided the belligerent, handcuffed suspect to a resting position on the ground,” when in reality, the BWC video shows a handcuffed man being shoved face-first into the concrete after mouthing off to the officer—hence the broken nose. So while an investigator’s point of view is certainly valuable, it does not replace the attorney’s independent review of the investigation.
The second reason is closely related to the first: After conducting a legal analysis of the facts, it may be determined that additional investigation is needed. For example, a prosecutor may listen to a recorded witness statement and find that a key question was not asked or a detail was left out that changes his legal analysis. These are situations that all prosecutors are accustomed to when evaluating cases. A key distinction, however, is that the investigations reviewed by most prosecutors have already resulted in charges and probable cause, whereas in most officer-involved shooting investigations, the question of probable cause is generally left to a grand jury, which requires all of the relevant facts to reach its decision.
Third, a prosecutor’s familiarity with grand juries will very often result in tracking down additional information. We have all been there: A grand juror asks whether anyone has checked if the high rises across the street from the crime scene (that can be seen in crime scene photos) had surveillance cameras. You pause while thinking of a graceful way to say “no.” Looking at an investigation with a future grand jury presentation in mind will almost always help identify potentially important questions for which you do not currently have an answer. Anticipating grand jury inquiries and arming yourself with the details goes a long way in establishing the credibility of the prosecutor and the investigation. Also, I don’t think any attorney likes not having the right answer locked and loaded, if for no other reason than to save face with grand jurors.
Communicating with family members
Communicating with the family of a decedent in an officer-involved shooting case can sometimes be a sensitive subject. Depending on the particular facts of a case, the decedent may have been committing a crime at the time of the shooting. Furthermore, some families may have already retained counsel. Pair these factors with the potential media fallout from a mishandled conversation with a family member, and it can prove crucial to consult your office leadership regarding how and when to reach out or respond to family members. Follow your office’s policy on communicating with crime victims and their kin, including enlisting the help of your office’s victim services division.
A few words of advice: First, lead with compassion. Regardless of the circumstances, this family is dealing with the loss of a loved one. It is possible to be compassionate toward a person’s suffering and still remain realistic and unequivocal regarding the state of affairs. Second, navigate with wisdom. Steer clear of promises, comments, or commitments that could potentially be taken out of context. While it is generally fine to explain the process of the investigation, there is no shame in letting a family member know that you need to consult with your office prior to answering more specific questions.
What is the State’s position?
If officer-involved shooting cases are truly to be decided by the community, prosecutors must ensure that the grand jury is well-informed and that the State remains impartial. While “run-away” grand juries can be a reality, grand juries that are presented with all of the facts and a complete and comprehensive explanation of the governing law usually come to the right conclusion.
Moreover, when dealing with officer-involved shootings, answering the question of reasonableness as it relates to an officer’s use of force is a question reserved for a group of reasonable people—the very purpose of a grand jury. While the notion that a prosecutor can “indict a ham sandwich” is a gross mischaracterization of the grand jury process, it is based in an element of truth. We as prosecutors—and more broadly, as human beings—naturally bring our beliefs and biases into any room that we enter. Grand juries often yield to our experience, training, and status as attorneys when deciding what to think about a case. However, it is vital to check our personal position on the matter at the door, present all perspectives equally, and devote energy to ensuring that the grand jury understands how to appropriately apply the law. The advocacy that happens in the grand jury is advocacy on behalf of the law. This will certainly require that prosecutors challenge incorrect applications of the law and educate the grand jury regarding the scope of its legal analysis. Remaining neutral may be unnerving as it requires giving up a degree of control over the process—but that’s the entire point.
Endnotes
[1] https://www.washingtonpost.com/graphics/ investigations/police-shootings-database.
[2] Garrity v. New Jersey, 385 U.S. 493 (1967).
[3] Kastigar v. U.S., 406 U.S. 441 (1972).