Prosecutors In 2 Maryland Counties To Swap Each Other’s Police-Shooting Cases

The top prosecutors of two Maryland counties are set to announce Monday that they will review fatal shootings by police in each other’s jurisdictions, a swap designed to curb growing concerns that prosecutors are too close to officers in their own counties to handle such cases.

The agreement between Montgomery and Howard counties, which also covers in-custody deaths, is believed to be the first of its kind in Maryland.

“If the public is demanding greater independence and transparency, we’re obligated to give them that,” said Montgomery State’s Attorney John McCarthy.

His approach is one example of how law enforcement agencies nationwide are reacting to public concern over a series of high-profile police shootings in places like Ferguson, Mo., Cleveland and North Charleston, S.C., and to the death of Freddie Gray, who suffered a severe injury while in Baltimore police custody.

The discussions among authorities and lawmakers include two key questions: whether police agencies should handle investigations into officers from their own agencies and whether prosecutors who work alongside those officers in other cases should be the ones to review their investigations and make the ultimate decisions on charges.

In Georgia, so many local police and sheriff’s departments are referring police-shooting cases to a state agency — the Georgia Bureau of Investigation — that the bureau has asked the governor for funds to set up a specialized unit.

In Maryland and Virginia, police departments are discussing regional task forces, in which detectives from different departments join together to handle each other’s cases.

And in Salt Lake City, the top prosecutor is proposing that the U.S. Justice Department conduct random audits around the nation of how police and prosecutors handle such cases. That, he said, would help ensure agencies perform detailed, transparent investigations.

“Too often, we’ve been reactive to crises,” said Salt Lake County District Attorney Sim Gill, speaking of law enforcement in general.

Under the current structures, it’s rare that officers are charged in connection with a fatal shooting. Over a 10-year period, that happened 54 times, according to an analysis published in April by The Washington Post and researchers at Bowling Green State University.

Changing structures and procedures is hardly simple, particularly given the wide variety of sizes and capabilities among law enforcement agencies.

If a large police department were to bring in another agency, for instance, would detectives and forensic teams get to the scene in the crucial, opening moments? Would people inclined to doubt police independence see much difference anyway?

As for prosectors, they don’t universally support swaps like the one arranged by Montgomery and Howard counties. Some worry it would create less accountability, because prosecutors, many of whom are elected, might not be pressed on issues with cases in their own jurisdictions.

In Salt Lake City, Gill said he tries to garner public confidence by releasing detailed reports of the cases his office reviews. “We need to reassert the independence of the public prosecutor’s office,” he said.

McCarthy — and his counterpart in Howard, Dario Broccolino — said that in past cases, their own prosecutors have been independent enough to handle them fairly. But that’s not necessarily how people see it.

“Clearly, the events of the last few months have shaken the confidence of many people,” Broccolino said.

“It doesn’t matter what I think,” McCarthy said. “That’s not where the question and answer end. It’s a broader question: ‘What steps can we take to build public confidence?’?”

Montgomery and Howard are both relatively affluent counties north of Washington.

Howard is home to about 310,000 residents. The county police force has 472 sworn officers. Last year, officers killed two men described as suicidal, who were armed with knives, in the span of a week.

Montgomery has a population just over 1 million, with 1,200 sworn officers. In 2014, officers shot and killed two residents — an armed man attacking his mother and another man inside a bank armed with a knife. Both incidents were ruled as justified, according to the department’s annual use of force report, published in April.

McCarthy said that over the past year, when speaking to civic groups, he has asked for a show of hands to gauge how many people think prosecutors in general are too close to police. About half the hands, he said, typically go up. “It’s probably closer to 70 percent,” he said, “I’m getting a
20 percent bump of people being polite.”

Late last year, McCarthy said, he began talking about a possible swap with his Maryland counterparts.
Last month, President Obama’s Task Force on 21st Century Policing issued its recommendations, calling for independent or outside police investigations and prosecutions of police use-of-force fatalities.

In interviews, the co-chairs of the president’s commission, Charles Ramsey and Laurie Robinson — who each have ties to the Washington area — stressed they were addressing perceptions as much as reality.

Because local prosecutors and police work together every day, “from the outside, there is an assumption they are part of the same family,” said Robinson, a George Mason University criminology professor and former assistant attorney general in Washington.

“Perception is reality, and we have to deal with the reality,” said Ramsey, the police commissioner in Philadelphia and D.C. police chief from 1998 to 2007.

Many police agencies are looking to the state of Wisconsin. Last year, it enacted a law mandating that local police departments set up policies by which two investigators, including the lead detective, come in from an outside agency to probe fatal police shootings. Departments have started using the arrangements for nonfatal shootings as well, even though that is not required.

“We think it’s working very well,” said Jim Palmer, executive director of the Wisconsin Professional Police Association, a labor organization for officers that also is involved in policy work.

For years in Georgia, smaller, rural sheriff’s departments have asked the Georgia Bureau of Investigation to handle their use-of-force fatalities. A big reason was simple need: The departments don’t have the capabilities.

Increasingly, though, big local police agencies in and around Atlanta also are calling in the bureau, according to its director, Vernon Keenan. These agencies can do the work, but they want to assure people the probe is independent.

“There is intense public scrutiny of these investigations,” Keenan said.

And that is stretching his agency, which now is initiating one or two use-of-force investigations a week. He has 265 investigators across the state, who handle plenty of other cases as well involving civilians — some 300 homicide and death investigations annually. Keenan said he is seeking funding for at least 12 more investigators.

He recently met with counterparts in 11 Southern states — and all expressed concern about how they will fullfil the increased number of requests they are receiving from local departments for use-of-force investigations.

“It’s our number one issue,” he said.

In Maryland, state police investigators probe use-of-force fatalities in smaller counties. But with a limited number of homicide investigators, the agency isn’t set up to do such work for bigger jurisdictions.

That has local police departments discussing regional task forces. In such an arrangement, one or two detectives from a collection of several jurisdictions would be assigned to a collective unit. If a fatal shooting happened in one of their jurisdictions, investigators from the unit — and not from the jurisdiction of the shooting — would handle or supervise the case.

“It’s a matter under consideration, absolutely,” said Montgomery County Police Chief J. Thomas Manger.

But setting up such arrangements isn’t easy. There are labor and jurisdictional issues, to say nothing of the question of what agency would handle forensic and ballistics testing — which, in such cases, can be crucial.

On the ground, some detectives worry that altering structures won’t change perceptions. If people believe officers protect each other in their own departments, the thinking goes, that perception would extend to all police.

“When the investigative conclusion is the same, the dissenters will say that we’re protecting our brother officers. What then?” said an investigator who spoke on the condition of anonymity because he didn’t have permission to discuss policy issues. “The patch makes no difference; they only see the badge.”

Ramsey, the co-chair of the president’s task force, acknowledges the challenges. He is trying to work through them for his own department in Philadelphia, having opened up discussions with state police in Pennsylvania.

“It’s not like you can do this overnight,” he said.

From The Washington Post