The shooting of Michael Brown in Ferguson, Missouri and the continuing actions of Ferguson and St. Louis County officials are providing a textbook case study in avoiding accountability.
First, you have a culture that treats every complaint as an isolated event, so that patterns of behavior cannot be tracked. In Ferguson, prior to 2011, this was the standard police department practice.
The department’s standard operating procedure came out during depositions from a case involving Henry Davis. In September 2009, Ferguson police charged Davis with destruction of property for bleeding on their uniforms. Civil rights attorney Jim Schottel filed suit claiming four officers beat up his client while he was handcuffed in the Ferguson jail.
The chief at the time was Thomas Moonier, who testified how excessive use of force complaints were handled.
“The officer himself could complete it and give it to the supervisor for his approval,” Moonier said in a deposition taken last September.
Documents revealed a copy of the report was never placed in an officer’s personnel file.
“How do we know these officers haven’t used excessive use of force over and over again, that they haven’t shot people or tazed people or kicked people or injured other people?” Schottel said.
In the deposition, Schottel asked who was in charge of the officers’ personnel files.
“I have no idea,” Moonier said. “I believe city hall, but I don’t know.”
Schottel: “Was there any way to identify any officers that were subject of one or more citizens’ complaints?”
“Not to my knowledge,” Moonier said.
Chief executive officers cannot be expected to know details of day-to-day work in the low levels of their organizations, but they absolutely ought to know big picture things and corporate procedures. A CEO who says “I have no idea” and “Not to my knowledge” in a deposition like this is further evidence of a culture of non-accountability. If you don’t track something, you and those beneath you can’t be held accountable for it, right?
Second, if you are looking to avoid accountability, individuals are allowed to disguise, hide, or remove their own individual agency from the discussion. Christy Lopez, a DOJ deputy counsel in the Civil Rights division, spoke at an open community forum on Wednesday, and noted the importance of patterns of behavior. Sadly, she also noted how some Ferguson officers and possibly officers from other jurisdictions are fighting against accountability on an individual level:
“We are here to address patterns or practices of police misconduct,” Lopez said. She said investigators are looking at “whether people’s constitutional rights are being violated on a regular basis.” . . .
One complaint that has come up frequently is that Ferguson police officers don’t regularly wear name tags while on duty — a violation of the department’s written policy.
“We wrote a letter to the chief yesterday,” Lopez said. “The chief assured us that recommendation will be immediately implemented.”
Unknown to Lopez at the time was yet another way in which unknown officers were resisting accountability and making matters worse: wearing “I am Darren Wilson” bracelets while in uniform on duty. And yes, there is a picture of this, taken on Tuesday night. When she learned of it, Lopez was not at all amused, and made her lack of amusement known.
On Thursday, yet another piece of the culture of non-accountability came out, courtesy of Yahoo News:
Police in Ferguson, Mo., have violated their own reporting standards since last month’s controversial fatal shooting of Michael Brown by Officer Darren Wilson.
Ferguson Police Department protocol requires that a use-of-force report be submitted after all such incidents — lethal, nonlethal and even when barehanded physical force is used.
A written directive signed by Chief Thomas Jackson in 2010 states “early and accurate reporting helps establish agency credibility.”
But there is no use-of-force report for the Aug. 9 shooting death of Brown, an unarmed 18-year-old who was shot multiple times in broad daylight in the middle of a residential street.
Yahoo News requested the report under Missouri’s public records laws. Ferguson City Clerk Megan Asikainen, who manages all municipal records, said multiple times that the document doesn’t exist.
I can understand why Wilson’s lawyer might direct him not to file a use-of-force report, as it would certainly become part of the evidence used to consider charges against him. “If you lie and get found out, it will make things worse. If you tell the truth, it will likely not help at all and might make things worse. If you don’t file it at all, it can’t be used against you.” This is a classic Fifth Amendment kind of argument — you don’t have to testify against yourself.
But you do have to do your job, and if your job requires to you account for your behavior and you fail to do so, you are in danger of having your job terminated. Of course, this danger is diminished if your bosses have created a culture of non-accountability.
Meanwhile, on the same day that Lopez was meeting with St. Louis area residents, St. Louis County prosecutor Robert McCulloch did an interview with Kimberly Kindy of the Washington Post, and yet another part of the picture of non-accountability emerged in the very first exchanges.
Kimberly Kindy: It’s unusual for you to have a grand jury hear all of the evidence in a case. Why did you choose to do it this way?
McCulloch: “Because of the interest that this case has generated and the concern it has generated in the community. Rather than have the lead investigator testify and a witness here and there, we are giving them everything.”
Kindy: Some people in the community are accusing you of taking this tack to avoid responsibility if Officer [Darren] Wilson isn’t charged. How do you respond to that?
McCulloch: “I don’t know how that is dodging anything. They are getting direct testimony from witnesses to the event…There are some people regardless of the outcome who will not be happy. That just comes with the territory.”
Kindy’s first question goes to McCulloch’s stated position that instead of having his staff sift through all the evidence, all the witnesses, and all the legal positions and then distilling that into a coherent presentation to a grand jury, prosecutors will present everything to the grand jury and let them do the sifting.
Sorry, but that doesn’t just “come with the territory.”
I’m not a lawyer, but I’ve been a juror on multiple occasions. Yes, juries are to sift through the facts and evidence, but it is the job of the attorneys — prosecutors and defense attorneys alike — to present an argument that puts the evidence in order and provides appropriate context. If a lawyer tries to introduce extraneous materials, the judge rules this to be out of order. Here, however, McCulloch is directing his staff to do precisely that: give the grand jury not merely what they need to make their decision, but to swamp them with everything that’s in the files.
This is what you do if you are trying to (a) hide something important in a very large pile of files, (b) tire out a grand jury with repetitive testimony and documentation, and (c) make it harder to follow the flow of the case. What should take a few weeks will now stretch out for months, and McCulluch acknowledges that in 24 years in office, he’s never extended a grand jury’s tenure in the way he has done here. All in all, giving a grand jury every file, every video, and every witness makes it more likely that the grand jury will throw up their hands and say “we can’t make heads or tails of this, so we decline to indict”.
And it gets worse. Again from the interview:
Kindy: You started presenting evidence to the grand jury while the FBI and county police were in the middle of their investigations. How close are they now to wrapping things up?
McCulloch: “For the most part, they are pretty much done. No one has written a report yet though. And normally, we wouldn’t even present to a grand jury until the report was done.”
[I wonder: is the grand jury being told that the Ferguson police do not have a use of force report on file for the shooting?]
Let me be clear: I’m not saying that the grand jury won’t indict Wilson for shooting Michael Brown. I’m not saying that the two assistant prosecutors who are doing the actual presentations are trying to tank the case. I’m not saying that McCulloch is actively working to prevent an indictment. What I am saying is that McCulluch’s actions are precisely in keeping with someone who lives in and works hard to create and sustain a culture of non-accountability.
Which brings us to the last element of this culture of non-accountability: it’s not for everyone. Darren Wilson held Michael Brown accountable. Protesters were and continue to be arrested and held accountable. The protection granted by a culture of non-accountability is only for those in power.
In a discussion of the over-militarization of policing exemplified by Ferguson yesterday [Aug 14], on MSNBC, one of the local St.L. media noted that, as a matter of policy promulgated by the same prosecutor’s office, for over a year every search warrant has been served by the SWAT team.
Every search warrant. By SWAT.
So, the thuggery and racism at the core of this mess has its beating heart right in the middle of the prosecutor’s office.
I’ll say it again: the protection granted by a culture of non-accountability is only for those in power.
Photo h/t: Digital Sextant and used under Creative Commons Attribution-ShareAlike 2.0 Generic license.