Mimesis Law
25 September 2017

Georgia’s Special Perk For Cops Who Kill Citizens

Oct. 13, 2015 (Mimesis Law) — As the Atlanta Journal Constitution reports, the system really can work. A grand jury heard evidence that a police officer subdued a man who had attacked him with a box cutter, and that, as the man lay on the ground, the officer shot him in the back of the head. Because the other officer had already holstered his firearm, the grand jury decided an indictment for involuntary manslaughter made sense.

This is particularly remarkable because, as one grand juror (illegally?) recounts, the district attorney told him there would be no trial “regardless of how we voted.”

And true to his word, hours after the indictment was returned, District Attorney Scott Ballard requested that the charges be dropped.

“I don’t know, with the benefit of hindsight, (that) it was necessary to shoot that man in the back of the head,” Ballard said, but “I would have prosecuted if I thought there was proof beyond a reasonable doubt.”

Perhaps Ballard should not have given up his indictment so lightly. Although Georgia officers have killed 171 people in the past five years, his office was the first to successfully (if accidentally) secure an indictment for the death.

There are a few reasons for this. For one, prosecutors are reluctant to seek an indictment against officers whose cooperation they depend on. When Walton County officers were caught using a confidential informant to plant drugs in a woman’s car, the District Attorney said that they committed no crime. When officers burst into a family’s home looking for drugs and threw an explosive device into a baby’s crib, no indictment followed.

Sometimes, prosecutors seek an extra excuse not to prosecute by assembling a “civil grand jury” to determine if the officer’s actions were justified or unjustified.

In one case, a police officer shot a teenager to death for coming to his front door holding a Wii video game controller. A civil grand jury found the shooting unjustified, at which point, the case was shunted off to a second grand jury. That grand jury refused to return an indictment.

Why, you might ask? Because the prosecutor called an expert who testified that the officer’s actions were lawful. Then, they played a video of another officer being shot to death at a traffic stop… from 1998.

Neither Mann nor Greene believe the video prejudiced the Bartow grand jury and they don’t think they drew any conclusions about the Roupe case from seeing it.

If the prosecutor and the expert witness did not think the video would affect the grand jury’s deliberations, then why play it? Is there a tradition of playing gruesome shooting videos for kicks when seeking an indictment? We’ll never know, because Georgia shrouds its grand jury proceedings in the utmost secrecy.

And here’s a particularly telling quote from the DA in question:

I would not say I was seeking an indictment,” Greene said. “I don’t know that I would say that about any case that I have. That’s not my job. My job is to make sure justice is served.

Yes, yes, it is difficult for prosecutors to deal with a grand jury’s legendary skepticism. But presumably, a prosecutor who routinely failed to get indictments for drug charges, burglaries, and child molestations would not last long in the job. For good or for ill, prosecutors are not generally expected to simply shrug their shoulders at a loss and say that justice has been served.

And there’s another wrinkle. Georgia, unlike other states, allows police officers to give an unrebutted statement to the grand jury at the end of every grand jury proceeding. If an officer is not given that opportunity, the indictment is thrown out and he has to be retried. No cross-examination or scrutiny of any kind is allowed. Here’s the law:

The accused [police officer] shall have the right to appear before the grand jury to make such sworn statement as he or she shall desire at the conclusion of the presentation of the state’s evidence. The accused shall not be subject to examination, either direct or cross, and shall not have the right individually or through his or her counsel to examine the state’s witnesses. The accused and his or her counsel shall have the right to be present during the presentation of all evidence and alleged statements of the accused on the proposed indictment, presentment, or accusation, after which the accused and his or her counsel shall retire instanter from the grand jury room to permit the grand jury to deliberate upon the indictment.

If a police officer is not given this privilege, his conviction is reversed and he must be retried, even when prosecutors call the privilege “manifestly unfair.

So even when Georgia prosecutors do seriously seek indictments against police officers for killing citizens, they often run into problems. Paul Howard, the District Attorney for a large chunk of Atlanta, sought to indict an officer for “fatally shooting an unarmed black teenager twice in the back.” But because the officer got the last word, Howard said, he just had no way to rebut the officer’s emotional testimony.

Officers claim this is necessary to ward off frivolous indictments. And this might make sense, if private citizens were allowed to pursue claims due to a grudge.

But generally speaking, the only person in Georgia who is going to indict an officer is the District Attorney who works closely with that police department in every case. To keep their numbers up, DAs need police officers to show up to trial on time, to present the most favorable version of their testimony, and to avoid speaking with defense attorneys before trial.

All that potentially goes out the window when indictments are sought for conduct that the police department thinks is justified, or at least forgivable.

This is not to say that lenity in our justice system is a bad thing. It might be a very good idea to let people view grand jury proceedings to make sure that they’re fair, and to present their version of events before the grand jury decides.

What makes much less sense is creating a two-track system: one for police officers, who are given every benefit of the doubt, and one for ordinary citizens, who typically find out about their indictment when it’s handed to them at the local jail.

When we create special privileges for public officials, shielding them from scrutiny on the basis of their status, we abandon an important part of our national heritage. Maybe there are good policy reasons for giving officers the benefit of the doubt, but in a country premised on the hope of equality, there are even better reasons to ensure that such protections adhere to everyone.

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