It’s been almost eight months since the fatal shooting of Dontre Hamilton and Milwaukee County District Attorney John Chisholm still hasn’t announced if he will charge Milwaukee Police Officer Christopher Manney, who fired his gun more than a dozen times while he encountered Hamilton in Red Arrow Park on the afternoon of April 30.
The delay has caused frustration among Hamilton’s supporters and critics of police tactics that have resulted in the deaths of unarmed African American men such as Hamilton in Ferguson, Mo., New York, Cleveland and elsewhere.
Last week, District Attorney Chisholm visited the Shepherd’s offices to talk about the Hamilton shooting, why he hasn’t yet made a decision on charging Manney and whether the local and national protests against police shootings have any impact on him. Here’s an excerpt from our discussion.
When are you going to make a decision about whether or not to charge MPD Officer Christopher Manney for shooting Dontre Hamilton?
John Chisholm: It’s going to be very soon.
What’s “very soon”?
JC: I certainly will get it done before the start of the coming year. And I anticipate even sooner than that. I’d very much like to have resolution of this matter.
What’s taking so long?
JC: It stems from the legislative change requiring that after any officer-involved death that there be an independent lead investigative agency.
So the lead investigative agency is the state Department of Justice’s Department of Criminal Investigation [DCI]. What is their role?
JC: As the lead investigative agency they are responsible for directing the investigation, in effect. They did so. They arrived on scene. They had seven or eight agents there relatively soon. They have an office in Milwaukee. We had access to them right away. They were on scene almost as quickly as my investigators were on it. You had some others, but those were the primary ones. They were overseeing the collection of evidence on scene. They assisted in the identification of citizen witnesses, police officer witnesses. And from that point on they took over the control of the investigation. But there was no question that the Milwaukee Police Department still did a substantial amount of the collection of evidence and the identification of witnesses.
|
|
Then from that point on DCI had to go over literally every piece of the investigation in detail. They had to listen to every recording. They had to do follow up on any of the witnesses if they felt that there were any other matters that needed to be reviewed. Certainly they were present for the autopsy, as I was. I personally remain on call 24 hours a day to respond to any officer-involved shootings; I have been since the day that I was elected. And I have always shown up with my own investigators to those scenes, usually within a very short time afterwards.
DCI already submitted its report to you, in August. What more is needed for you to make a charging decision?
JC: Fundamental to any officer-involved shooting is an assessment of why the officer fired, if it involves the discharge of a firearm, what were the circumstances that led the officer to discharge the firearm, and was the decision-making in that incident consistent with their training and their authority.
What’s unique about police officer-involved fatality is that if it’s done in the line of duty, if they’re going about it in the course of their responsibilities, you have to assess that independently with regards to how they’ve actually been trained in how to use force. The only way you can do that is to bring an independent expert in. So what I would traditionally do in a case like this is I would consult with the DCI and I would ask them to independently look at the investigation that was done and then render an opinion on whether or not the use of force was privileged and whether it was consistent with Wisconsin law enforcement training standards on the use of force.
On this particular case it was absolutely critical that that be done. What you have is a fairly classic incident of an escalation of the use of force during a contact with a citizen. You have resistance. That resistance is met with a certain reaction by a police officer. That has to be a trained and appropriate response. If that doesn’t achieve the goal of getting compliance then you have to escalate it in a reasonable way, what they would call an intermediate level of force, which could be a compliance device like [pepper] spray, a baton, or if they are so equipped, an electronic control device. Those would be the options potentially available to them. If that didn’t work, then you’d have to assess whether they had appropriately escalated to the highest level of force and whether it was appropriate for them to do so.
Keep in mind my responsibility is to determine whether or not a crime occurred and whether I can prove it beyond a reasonable doubt. In the context of an officer-involved shooting you will always—always—have to bring an expert in there to assess whether the use of force was appropriate and whether it was trained or not. I say that because if you don’t do that a defense attorney will. They will.
Will you make the charging decision?
JC: Yes.
So you won’t call a public inquest, as you have in the past?
JC: My experience, and I think the office’s experience, with the inquest process is that it is an inadequate or dissatisfying approach to making a determination of whether or not a crime occurred for one simple reason: an inquest verdict is simply advisory. It’s based on probable cause, which is the lowest standard [of proof]. That’s the same standard a police officer would use to decide whether he or she could arrest somebody. It does not inform the ultimate issue of whether or not you can prove a case or not. We did 40 years’ worth of inquests and only once was there a recommendation for charges [under Chisholm’s predecessor, E. Michael McCann] that was then dismissed at the preliminary stage.
I requested a special prosecutor and an inquest for the Derek Williams matter. There are times when it’s appropriate. The reason why it was appropriate in that case is that I had already made a decision based on the evidence that I had and after I made that decision the medical examiner changed the conclusion on what he believed the manner of death was, not the cause of death. I felt that if I then re-reviewed it and came to the same conclusion, there would be too many questions. So I thought it was appropriate to take it to a public inquest and let people look at it. I did an open John Doe for the case involving Corey Stingley in West Allis. I wanted people to see publicly the evidence that was available in that case.
But my practice has generally been not to do those because it creates an expectation in the public’s mind. When you do an inquest, people believe it’s the same as a jury trial. And so there’s inevitably disappointment when the recommendation comes back not to support charges. It’s my fundamental obligation as a prosecutor to make a determination about whether I can prove a case beyond a reasonable doubt. If I can’t prove a case beyond a reasonable doubt, an advisory verdict based on probable cause isn’t helpful. It doesn’t really serve the purposes it was intended to.
Don’t you think that allowing the evidence to become public serves a purpose? Shouldn’t the public know the facts of the case?
JC: It will be [made public]. After every police shooting that I’ve done I’ve generated a public report that is sent to the police chief and the Fire and Police Commission detailing my reasoning behind whether or not I thought it was appropriate for charges to go forward. I’m certainly going to do so in this case as well.
No matter what your decision is?
JC: No matter what my decision is. I will do a very detailed public report one way or another, if it’s a recommendation for charges then the public report would be a criminal complaint and if it’s a decision not to charge there will be a detailed report highlighting all of the facts and the reasoning behind it and you’ll get the expert’s entire report. Now, pursuant to the new law, all of the reports related to it are released as well.
Since charging someone with a crime isn’t declaring someone guilty, wouldn’t it be wise in a controversial, high-profile case such as this to charge the officer and give him a fair trial where he can put on a strong defense and allow the public to get all of the facts in the case?
JC: There’s a distinction between controversy and evidence that would actually support a finding of guilt. That’s the distinction right there. That is my fundamental core obligation. It’s an ethical obligation, which makes me distinct from any other elected official. I don’t get to do what would be popular. I don’t get to do what people would call practical. What would be practical is to just air it all out there in the format of a trial and let the jury decide.
If I or any other prosecutor took that approach you would be fundamentally undermining the integrity of the criminal justice system because you could easily imagine, if you took that same approach in a different context, and say that the standard of charging everybody ought to be probable cause and not beyond a reasonable doubt. That means that every time a person is arrested by a police officer they could be charged and they should be charged and you let the system work it out.
We don’t believe that. We have never believed that. Because there would be deep injustices that would occur if prosecutors didn’t perform that fundamental gatekeeping role of making sure that we do not charge people, even if we personally may believe that yes they are guilty, but if there isn’t enough evidence to prove that beyond a reasonable doubt. As difficult as that obligation can be in controversial situations, that’s what we’re hired to do.
Are you concerned about blowback or retaliation from police officers if you decide to charge Manney? After all, your office relies heavily on their expertise and cooperation in investigations.
JC: No. Anytime we charge police officers, those particular police officers aren’t happy. Oftentimes many of their friends and associates aren’t happy. When we charged the individuals involved in the improper strip searches we had a lot of people who were very unhappy with us. But we’ve charged police officers more than 100 times in the past 10 years. That depends oftentimes on really good police work, even from people who are in that same organization. Whatever expressions of dissatisfaction we get, that’s nothing compared to what the people in internal affairs get when they are doing their job. That’s the toughest job. That’s why my investigators are often involved and we bring the FBI in on a regular basis and bring DCI in on a regular basis, to lend that element of independence.
Conversely, if you don’t charge Manney, are you concerned about the public reaction? Do you watch the protests locally and in Ferguson and New York and elsewhere and take that into consideration? Your home was the site of a protest the other day. Does that affect you?
JC: At the end of the day, it is my job to make these kinds of decisions. The reality is that the very nature of being a prosecutor in the United States means that every decision you make makes somebody unhappy, whether it’s a retail theft or a homicide. If I charge somebody, that person is generally not too pleased with it. If I don’t charge somebody, the victim is generally displeased with that. That’s where we have to go back to closely looking at the facts, looking at the applicable law, and then applying our ethical obligation to only charge when we believe we can prove it beyond a reasonable doubt.
That’s the mechanical approach. It goes beyond that. I am not insensitive to the issues of trying to improve our criminal justice system—it’s the exact opposite. So even though on a case-by-case basis you have to apply that process that doesn’t stop us from looking at the system as a whole and saying aren’t there ways that we can improve this system significantly and reduce the racial disparity in the city, reduce the amount of violence, reduce the disproportionate impact on victims, and just to address some of those fundamental tensions that exist between the community and people that are serving that community?
Why does it seem to be so difficult to charge or convict police officers of misconduct or other crimes? Not just in Milwaukee, but around the country, we see these incidents of what appear to be terrible brutality, but the police officers never seem to be held accountable for their actions.
JC: Keep in mind that there is no more difficult case to prove than police misconduct. There just isn’t. In the Red Arrow Park case, as difficult as it is to believe, in Downtown Milwaukee in late afternoon there was no video evidence. There was a camera that could have caught it but it was panning in the other direction and came back just as you see the police officers converge on that scene. So there is no video evidence.
But in the past year we have tried officers for police misconduct, one for the abuse of a prisoner that was caught on videotape. Caught on videotape. Guess what the verdict was. Not guilty of the abuse of that prisoner. Even though the camera catches that person slamming the prisoner against the wall. He was eventually convicted of misconduct. But he was acquitted of the actual battery of the prisoner aspect.
It’s extremely important in the context of a police case. Why ultimately was that person acquitted? Because the defense came forward with experts that simply said that what that officer did in that instance was actually a trained technique. It’s called the wall stun. And if he’s with a noncompliant prisoner, he’s entitled to do that. Well, we strongly disagreed with that. We brought in our own experts to testify that it’s not consistent with trained techniques and it was excessive. But that’s what you have to do in every single case like this.
Do you think that juries or prosecutors are too deferential to police?
JC: No. Speaking simply from my own experience, in the past 10 years we’ve prosecuted over 100 police officers for some type of criminal misconduct. I don’t give undue deference to police officers if they engage in criminal acts. I don’t think juries do either.
What’s unique in the context of a use of force situation is that there’s usually some dynamic there that has placed the officer and the citizen at some degree of risk. There’s usually some level of underlying activity that has brought the police officer to that time and place. It’s not just happenstance that they’re there. They have received some kind of complaint that some sort of activity is taking place that they want the police to intervene. And the police have an obligation to intervene. How they intervene makes all the difference in the world. But they are there because they have to be there.
This is worth a very robust and long-term and open discussion. It’s consistent with the very effective but now being closely examined strategy of broken-windows policing, for example. The philosophy behind it is that if officers intervene in low-level public disorder cases that they can actually prevent the dynamics that take place that lead to at least the perception and the reality of widespread crime in the community.
It’s been very effective but like any strategy it has its downsides. How you do community policing can make all the difference in the world. If it turns into well, we just stop and frisk everybody, that’s not the true spirit of community policing or broken windows. But if your mandate is to be a strong and visible presence in public spaces and to respond to citizens’ concerns about low-level, medium, high-level problems, by definition you’re going to be exposed to threats on a regular basis.
Now I’m going to make very, very clear that I’m not raising this as a diversionary tactic or red herring because I think that happens far too often. It becomes a binary conversation, that police officers use force in crime-impacted areas at a higher rate and it’s against African American men because that’s where all the crime is. I want to be careful about how I say this. You hear that [statement] all too often as a way to not have that difficult discussion about the impact of police use of force incidents on a community and the historical memories that people have that are implicated by police use of force. So the critical concern that people have is that when a police officer shoots a young African American man, that brings to mind a very real and historical relationship with law enforcement agencies throughout the country where force was used indiscriminately and inappropriately.
That being said, there is a connection and it’s a very real connection in the sense that we simply cannot ignore the fact that, for example, in Milwaukee this year we will have 500 nonfatal shootings, that we will have anywhere between 80 and 90 homicides and that those are oftentimes concentrated in the same geographical areas that have the highest levels of poverty and social disorder and crime. And that police are called there disproportionately by victims of crimes in those areas and they’re expected to respond to those calls. As a consequence, if there’s a real potential threat when they intervene to provide public safety services that they’re going to encounter somebody who is armed and dangerous then that goes back to how they’re trained and how they respond to certain circumstances. That’s the connection.
I’m not saying that all police use of force is justified because there’s a lot of crime in that area. But what it does say is that there’s a very real premium placed on keeping themselves safe while they’re encountering people who very well could be armed under certain circumstances.
