Friday, February 26, 2010

Excuse by Inquest

The long-awaited "inquest" into the tragic death of 17-year old Victor Steen got underway yesterday in a Pensacola courtroom. PNJ reporter Kris Wernowsky filed two articles.

The first article anticipated the day's events by giving some background on the unusual "inquest" procedure. ["Inquest Weighs Charges in Death of Teenager"]. The second follows up with a spare 770-word summary of the day's evidence. ["Steen Video Played in Court"]

At last glance, some 300 or more brilliant Perry Mason imitators have infected the readers' comment sections at the end of those two articles. Unlike them, we have no idea at this point whether the inquest evidence, when it is all in, will meet the legal standard of "probable cause" to believe a crime was committed and Pensacola Police patrol officer Jerrold Ard committed it.

It does seem odd, though, that the law would have a salaried county judge making that decision when there are so many on-line newspaper readers ready to do it for free, even before all the evidence has been presented. Come to that, it's likely that a mob of internet commentators would have reached a decision well before the inquest began, thus saving everyone the time and trouble of producing any evidence or providing troublesome due process for all involved.

Predictably, the public comments appended to the newspaper articles reveal an intense interest in deciding who was at fault. Most seem to see the case as a kind of "Whodunnit?" A brutal cop? A delinquent kid? Or, the Pensacola Police Department's administrative policies -- which for years have given a green light to nearly every lethal use of Taser guns and high-speed pursuits regardless of the danger to public safety, disproportionate risk of harm, or alternative opportunities to peaceably detain the suspect?

We didn't sleep in a Holiday Inn last night. Consequently, unlike the commentators hanging around the PNJ, we can't decide such grave questions in the absence of all the evidence.

We do have strong views, however, on who should be the decision-maker. As it happens, that's the one superordinate issue of public importance posed by this case insofar as the citizenry at large is concerned.

To put it starkly, the question everyone should be asking is, Why is the decision to charge, or not, being made by a county judge? County judges typically handle civil traffic, eviction, and misdemeanor cases -- not felony trials. While county judges surely are many floors higher-up than the crank commentator crowd, since when do homicide cases get evaluated for possible criminality by a single county judge instead of a grand jury?

In Pensacola, apparently the answer is: whenever someone is badly injured or dies at the hands of a cop. As Wernowsky's earlier report reveals, it's something of a local prosecutorial tradition around here:
The State Attorney's Office's policy of holding a coroner's inquest in any officer-involved incident involving a death was enacted more than 15 years ago under previous State Attorney Curtis Golden.
Does it have to be this way? Assuredly not.
Willie Meggs, state attorney in Florida's 2nd Judicial Circuit in Tallahassee, said he discontinued the use of the coroner's inquest 25 years ago when he was first elected to office.

"I adopted a policy when I got elected that I present all police shootings to the grand jury," Meggs said. "I don't think they're corruptible. They don't ask to be there. I tell them what I know, and they tell me what they think."
Why, then, does the First Judicial Circuit state's attorney routinely rely on county judges? Attorney Ben Stevenson of the A.C.L.U. explains:
If the State Attorney's Office were to present the coroner's inquest and the judge decides the death wasn't the result of a criminal act, the state attorney would have a political shield in the judge's ruling," said the ACLU's Ben Stevenson.
In other words, the decision to hold an "inquest" was a political decision, not one dictated by law or basic concepts of fairness.

To be sure, the state's attorney's office in Pensacola claims that a county judge is "preferable" to another option of "deciding on its own whether to file charges." Says Greg Marcille, acting as a spokesperson for state's attorney Bill Eddins, "the coroner's inquest was chosen as the process because it was a public proceeding and the general public and the media can see the evidence as it's unfolded."

There is a slight smidgen of truth to that; just enough to make it sound plausible. But it doesn't really explain why the "inquest policy" is used locally as it is.

Over the past three decades the terrific growth in prosecutorial discretion and its potential abuse has begun to worry a lot of judges, legal scholars, and lawyers who work within our criminal justice system. Deals are made, charges filed or dropped, and sentences bargained over like so many loafs of bread at a country market, all without much, if any, public awareness -- and with near-zero public accountability.

But the truth is, that kind of stuff goes on right now in the First District state's attorney office, just as it does elsewhere. It happens every hour, every day, in every case -- except in Pensacola when a police officer might be potentially criminally responsible.

Furthermore, if the state's attorney office chooses "on its own" to charge someone with a crime -- as Marcille hypothesizes -- under the Constitution and statutes of Florida, then a defendant is entitled to a public preliminary hearing -- where (unlike an inquest) his own lawyers can be present to test the evidence presented. Alternatively, as happens in the vast majority of cases, the prosecutor can seek an indictment by a grand jury drawn from an unbiased list of hundreds of veniremen.

Either of those proceedings, as the Tallahassee state's attorney inferentially points out, ultimately would hold the prosecutor's office far more accountable as a public servant and officer of the court than does a mere "inquest" presided over by a single county judge.

The local state's attorney custom of using the Twelfth Century "inquest" system in officer-involved cases -- and essentially none other -- is the equivalent of giving a free pass for everyone on the thin blue line, good and bad. It's not mere happenstance, as Marcille estimates, that in the Pensacola area "there have been 10 to 15 inquests, none resulting in charges against an officer."

In fact, law officers have never been charged with a crime "as a result of the coroner's inquest," he told PNJ reporter Wernowsky.

Excuse-by-inquest is a custom that was started by a former state's attorney long ago. It can be stopped -- and, in the name of equal justice for all, it should be. All it takes is a state's attorney to exercise his discretion openly by declaring it's over. Everyone from then on would be treated exactly the same. Not because police officers are invariably good or bad. Because they, too, are citizens entitled to justice without fear -- or favor.

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