Thousands dead, few prosecuted

clevelandcar
An evidence photo shows a Chevy Malibu that Cleveland police officers riddled with bullets after a chase that ended in the deaths of an unarmed man and woman. Officer Michael Brelo, who investigators say fired 34 shots at the car and then climbed on the hood and fired 15 more through the windshield, is on trial on two counts of voluntary manslaughter.
Kimberly Kindy, Kimbriell Kelly, April 11, 2015

Among the thousands of fatal shootings at the hands of police since 2005, only 54 officers have been charged, a Post analysis found. Most were cleared or acquitted in the cases that have been resolved.

On a rainy night five years ago, Officer Coleman “Duke” Brackney set off in pursuit of a suspected drunk driver, chasing his black Mazda Miata down rural Arkansas roads at speeds of nearly 100 miles per hour. When the sports car finally came to rest in a ditch, Brackney opened fire at the rear window and repeatedly struck the driver, 41-year-old James Ahern, in the back. The gunshots killed Ahern.

Prosecutors charged Brackney with felony manslaughter. But he eventually entered a plea to a lesser charge and could ultimately be left with no criminal record.

How the analysis was done: The 54 criminal prosecutions were identified by Bowling Green State University criminologist Philip M. Stinson and The Washington Post. Cases were culled from news reports, grand jury announcements and news releases from prosecutors. For individual cases, reporters obtained and reviewed thousands of pages of court records, police reports, grand jury indictments, witness testimony and video recordings. Dozens of prosecutors and defense attorneys in the cases were interviewed, along with legal experts, officers who were prosecuted and surviving relatives of the shooting victims.

Now, he serves as the police chief in a small community 20 miles from the scene of the shooting.

Brackney is among 54 officers charged over the past decade for fatally shooting someone while on duty, according to an analysis by The Washington Post and researchers at Bowling Green State University. This analysis, based on a wide range of public records and interviews with law enforcement, judicial and other legal experts, sought to identify for the first time every officer who faced charges­ for such shootings since 2005. These represent a small fraction of the thousands of fatal police shootings that have occurred across the country in that time.

In an overwhelming majority of the cases where an officer was charged, the person killed was unarmed. But it usually took more than that.

When prosecutors pressed charges, The Post analysis found, there were typically other factors that made the case exceptional, including: a victim shot in the back, a video recording of the incident, incriminating testimony from other officers or allegations of a coverup.

Forty-three cases involved at least one of these four factors. Nineteen cases involved at least two.

In the most recent incident, officials in North Charleston, S.C., filed a murder charge Tuesday against a white police officer, Michael T. Slager, for gunning down an apparently unarmed black man. A video recording showed Slager repeatedly shooting the man in the back as he was running away.

“To charge an officer in a fatal shooting, it takes something so egregious, so over the top that it cannot be explained in any rational way,” said Philip M. Stinson, a criminologist at Bowling Green who studies arrests of police. “It also has to be a case that prosecutors are willing to hang their reputation on.”

But even in these most extreme instances, the majority of the officers whose cases have been resolved have not been convicted, The Post analysis found.

And when they are convicted or plead guilty, they’ve tended to get little time behind bars, on average four years and sometimes only weeks. Jurors are very reluctant to punish police officers, tending to view them as guardians of order, according to prosecutors and defense lawyers.

The definition of “officers” used in the analysis extends beyond local police to all government law enforcement personnel who are armed, including sheriff’s deputies and corrections officers. The analysis included some shootings that officers described as accidental.

There is no accurate tally of all the cases­ of police shootings across the country, even deadly ones. The FBI maintains a national database of fatal shootings by officers but does not require police departments to keep it updated.

‘As soon as I fired the shot, I knew the threat was done’

Ten years after killing an unarmed man in downtown Detroit, Michigan State Trooper Jay Morningstar remembers the event that changed his life.
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(Whitney Leaming / The Washington Post)

Over the past year, a series of controversial police killings of unarmed victims — including Michael Brown in Ferguson, Mo., Tamir Rice in Cleveland and Eric Garner on Staten Island — has raised questions over what it takes for officers to face criminal ­charges. Often, the public is divided over whether the police went too far. Only in rare cases­ do prosecutors and grand juries decide that the killing cannot be justified.

Such cases include a Michigan state trooper who shot and killed an unarmed homeless man in Detroit as he was shuffling toward him, the man’s pants down past his knees. The incident was captured on video, and the officer, who said he thought the man had a gun, was charged with second-degree murder. A jury accepted the officer’s account and found him not guilty. He remains on the job.

They also include a police officer in Darlington County, S.C., who was charged with murder after he chased an unarmed man wanted for stealing a gas grill and three U-Haul trailers into the woods, shooting him in the back four times. A jury, believing that he feared for his life, found him not guilty.

Two Atlanta plainclothes officers opened fire and killed a 92-year-old woman during a mistaken drug raid on her home. As they pried the bars off her front door, she fired a single warning shot with an old revolver. The police responded by smashing the door down and shooting at her 39 times. One of the officers tried to disguise their error by planting bags of marijuana in her basement. The two officers pleaded guilty and received unusually stiff sentences of six and 10 years in a federal prison.

A rap musician, Killer Mike, wrote a song to memorialize the death of this African American grandmother at the hands of white officers, comparing her killing to “the dream of King when the sniper took his life.”

After the death of Michael Brown last summer, concerns about racism in policing have exploded in public debate, in particular whether white officers use excessive force when dealing with minorities and whether the criminal justice system protects the victims’ rights.

Among the officers charged since 2005 for fatal shootings, more than three-quarters were white. Two-thirds of their victims were minorities, all but two of them black.

Nearly all other cases­ involved black officers who killed black victims. In one other instance, a Latino officer fatally shot a white person and in another an Asian officer killed a black person. There were a total of 49 victims.

Identifying the exact role of race in fatal shootings and prosecutions is difficult. Often, prosecutors pursued charges against a backdrop of protests accusing police of racism. Race was also a factor in court when federal prosecutors stepped in and filed charges­ against officers for allegedly violating the victims’ civil rights. Six officers, all white, faced federal civil rights charges for killing blacks.

In interviews with more than 20 prosecutors across the country, they said that race did not factor into their decisions to bring charges against officers. The prosecutors said they pursued cases­ based on the legal merits.

Coleman ‘Duke’ Brackney
Charged with felony manslaughter in the death of James Ahern. In a deal with prosecutors, he pleaded guilty to a misdemeanor charge of negligent homicide. No conviction was imposed.

But defense lawyer Doug Friesen, who represented a white officer convicted in 2013 for fatally shooting an unarmed black man, said that “it would be naive” for prosecutors to say race isn’t a consideration.

“Anytime you have politicians that have to make charging decisions, realistically that is part of their decision-making process,” Friesen said. “They are asking themselves, ‘Is there going to be rioting out in the streets?’ ”

Both Officer Coleman “Duke” Brackney and his victim James Ahern, shot dead in his Miata, were white.

Brackney, 32, recalled in an interview that he believed Ahern was about to back his car up and run over him. The engine was racing and the backup lights flashed, Brackney said.

A video, captured by a camera mounted on his cruiser’s dashboard, indicated that the sports car was not moving when the officer opened fire. The existence of that video was the key reason why prosecutors decided to bring charges, they said.

“In my mind, it was the third time he tried to run me over,” Brackney said in an interview with The Post. “His right hand came up in this sweeping motion, and I thought he was going for a gun. I don’t know what a jury would have believed — and that’s the problem. There was this risk, so entering a plea, I viewed it as a business decision.”

After pleading to a reduced charge of negligent homicide, a misdemeanor, Brackney served 30 days in jail as part of a plea agreement. The judge deferred the conviction, and if Brackney fulfills the terms of his probation, the case will be dismissed.

“No one wants to take a life, but at the end of the day, I realize that I’m the one who got to go home,” he said, adding, “I wouldn’t change what I did.”

He was fired by the Bella Vista Police Department, where he worked at the time, but was given another chance by the city of Sulphur Springs, Ark. Two years ago, city officials hired him to run the police department, where he manages a force of four officers who spend much of their time patrolling quiet streets and arresting small-time drug dealers.

Most of the police officers were white, most of the victims were black

In three-quarters of the reviewed cases, the race of the charged officer was white. Of those, two-thirds shot and killed a black person. In none of the cases did a black officer fatally shoot a white person.

Most of the time, prosecutors don’t press charges against police — even if there are strong suspicions that an officer has committed a crime. Prosecutors interviewed for this report say it takes compelling proof that at the time of the shooting the victim posed no threat either to the officer or to bystanders.

Jay Hodge, a former South Carolina prosecutor, said the question boils down to this: Can the evidence disprove the officer’s story that he was defending himself or protecting the public. Hodge recounted one case he had prosecuted in which a sheriff’s deputy said he had opened fire on an unarmed suspect who grabbed for his gun. The autopsy report, Hodge said, told a different story.

“You don’t shoot someone in the back four times and then claim self-defense,” he said. “They can’t be going for a gun if they are running away.”

In half the criminal cases­ identified by The Post and researchers at Bowling Green, prosecutors cited forensics and autopsy reports that showed this very thing: unarmed suspects who had been shot in the back.

Not that long ago, police had wide latitude to shoot fleeing felons. But a 1985 Supreme Court decision changed that. In Tennessee v. Garner, the justices ruled that it was not justifiable for officers to shoot simply to prevent a suspect’s escape. The suspect had to pose a significant threat of death or serious harm to either law enforcement or innocent bystanders for the shooting to be legally justified.

In a third of the cases­ where officers faced charges, prosecutors introduced videos into evidence, saying they showed the slain suspects had posed no threat at the moment they were killed. The videos were often shot from cameras mounted on the dashboards of patrol cars, standard equipment for most police departments.

In nearly a quarter of the cases, an officer’s colleagues turned on him, giving statements or testifying that the officer opened fire even though the suspect posed no danger at the time.

Such testimony carries almost unequalled weight with judges and juries because police officers are considered highly credible eyewitnesses as well as experts in the proper use of force, according to prosecutors and defense attorneys. Moreover, because officers so rarely cross the “thin blue line” to testify against a colleague, their evidence can be especially powerful.

And in 10 cases, or about a fifth of the time, prosecutors alleged that officers either planted or destroyed evidence in an attempt to exonerate themselves — a strong indication, prosecutors said, that the officers themselves recognized the shooting was unjustified.

Tim Robertson, left, trains officers at a firing range in Florence, S.C. Now a reserve deputy retired from the Darlington County Sheriff’s Department, Robertson was acquitted in 2006 of a murder charge in the death of a suspect who had been shot in the back four times. (Alice Keeney for The Washington Post)

It was late one South Carolina evening 10 years ago, when Darlington County Sheriff’s Deputy Tim Robertson finally caught up with William Sheffield, a 45-year-old white man wanted for stealing a gas grill and three hauling trailers. Under the dim porch light of a mobile home, Robertson, who is white, urged the man to surrender, forcing him to spread his hands against the cab of his GMC pickup truck.

But as Robertson prepared to put the handcuffs on, the suspect lunged to the right, turned and then tried to grab the deputy’s gun, Robertson recounted in an interview with The Post. Robertson, who said he feared for his life, fired two shots. Sheffield broke away and ran for the woods. Robertson gave chase, opening fire again. According to prosecutors, the deputy gunned down the unarmed suspect in the back.

“There was no threat because there was no one around who could get hurt. There was a trail of shell casings that showed the deputy chased him and shot at him as he ran away,” said J.R. Joyner, the lead prosecutor in the case. “One shot was point-blank — an execution shot.”

Joyner said the forensics evidence was “the strongest of any case in my career.”

Prosecutors successfully indicted Robertson on a murder charge, citing the law that bars an officer from shooting a fleeing suspect in the back.

But at trial, jurors would go on to acquit Robertson, believing his account that he was forced to fire the final, fatal shots because the suspect turned back during the chase, attacked him and grabbed for his gun a second time. Robertson would keep his job at the sheriff’s department and be put in charge of training deputies in firearms and use of force.

Michael Brelo
Charged with two counts of felony voluntary manslaughter in the deaths of Malissa Williams and Timothy Russell.

In Cleveland, Officer Michael Brelo, who is white, was indicted for killing a pair of black suspects after a grand jury reviewed a wide range of evidence, including nearly two dozen video recordings from dashboard cameras, traffic cameras and surveillance cameras mounted at businesses and a school.

The deadly encounter began when the pair, Timothy Russell, 43, and Malissa Williams, 30, drove past the Cleveland police headquarters on a November night in 2012 and their Chevy Malibu fatefully backfired. Officers mistook the sound for gunfire and went in pursuit. Soon, 62 police vehicles were chasing the Chevy through city streets at speeds of up to 110 mph.

The cameras captured the furious pursuit with officers’ Dodge Chargers rocketing past repeated red lights and weaving through traffic at breakneck speed, tires squealing as panicked drivers peeled onto the shoulders.

The suspects, later found to be under the influence of drugs, came to a stop in a middle school parking lot. Eleven officers got out of their cars and formed a semicircle around the Chevy, court records show. Although two police radio broadcasts had reported that the pair was unarmed, according to transmissions compiled by state investigators, the officers opened fire, shooting 139 times.

Brelo himself fired 34 shots at the car and then climbed onto the hood of the Chevy and fired 15 more times “at close range” through the windshield, state investigation records show.

In a statement to investigators with the Ohio attorney general’s office, Brelo did not deny firing the shots but said he believed gunfire was coming from inside the vehicle. “I’ve never been so afraid in my life,” he said. “I thought my partner and I would be shot and that we were going to be killed.”

A grand jury indicted Brelo on two counts of voluntary manslaughter, saying he acted in a “fit of rage” and “under the influence of sudden passion.”

A lawyer for Brelo, whose trial began Monday, declined to comment.

Stinson, the Bowling Green criminologist, said it is often the case that questionable police shootings are an act of passion. Sometimes, he said, the encounters start with something as simple as a traffic stop and escalate when someone fails to obey the officer’s directions.

“They are used to giving commands and people obeying,” said Stinson, who previously worked as a police officer. “They don’t like it when people don’t listen to them, and things can quickly become violent when people don’t follow their orders.”

Cuyahoga County assistant prosecutor Erica Barnhill asks a state witness about details of a crime-scene photo, above left, that shows bullet holes in the windshield of a Chevy Malibu in which two unarmed people, Timothy Russell and Malissa Williams, were killed after a police chase in November 2012. Above right, Cleveland Officer Michael Brelo, left, sits with attorney Tom Shaughnessy during an administrative hearing last month. Brelo’s trial on two counts of voluntary manslaughter in the deaths of Russell and Williams began Monday. (Photos by Associated Press)

Levi Randolph, a black police officer in Gary, Ind., fatally shot a black 16-year-old robbery suspect in the back of the neck after the fleeing teen climbed a fence to escape, court records show.

Prosecutors charged Randolph with reckless homicide.

But when the case went to trial, his attorney told jurors that Randolph had felt threatened by the 6-foot, 200-pound teenager, Vince Smith Jr. Twice during the chase, Randolph said in a deposition, Smith turned around to confront him, both times reaching into the front pocket of his black hooded sweatshirt. He said he thought the teen was going for a gun.

Although Smith turned out to be unarmed, it took jurors only two hours of deliberation to acquit Randolph. Randolph could not be reached for comment.

“Jurors tend to be sympathetic toward police officers,” said Randolph’s attorney, Scott King. “For every movie like ‘Training Day,’ there are 10 movies where cops are underpaid, hard-working, struggling against insurmountable odds and on the side of good.”

The outcome of Randolph’s case is more the rule than the exception and demonstrates the daunting task facing prosecutors in those rare instances when they do charge officers in connection with fatal shootings.

Of the 54 officers who were charged for fatally shooting someone while on duty over the past decade, 35 have had their cases resolved. Of those, a majority — 21 officers — were acquitted or saw their charges dropped.

Jurors usually see the officer as “the good party in the fight,” said David Harris, a University of Pittsburgh law professor and expert in police use of force. “To get them to buy into a story where the officer is the bad guy goes fundamentally against everything they believe.”

Most jurors, experts say, view officers as those who enforce laws, not break them. And unlike civilians, police officers are allowed, even expected, to use force.

“It’s a question of whether it was too much force,” Harris said. “It’s a very flexible standard that has to be interpreted in every case. All this makes it very difficult to convict an officer.”

Most laws that apply to on-duty shootings require jurors to essentially render a verdict on the officer’s state of mind: Was the officer truly afraid for his life or the lives of others when he fired his weapon? Would a reasonable officer have been afraid?

That’s what Clay Rogers says he was asked to do when he served as a juror for the 2009 trial of a Hartford, Conn., narcotics officer charged with fatally shooting a fleeing black suspect.

“It’s difficult to prove an officer is not justified beyond a reasonable doubt, because you almost have to get inside their head to know what he was thinking and feeling,” Rogers said in an interview with The Post.

The officer, Robert Lawlor, who is white, had fired five shots at a car as it sped away. Two bullets struck a passenger, 18-year-old Jashon Bryant, in the back of the head, killing him.

The officer testified before a grand jury that he had initially approached the car, a black Nissan Maxima, because it matched the description of a vehicle used in a homicide. He said he opened fire at the car because he believed that Bryant had a gun and that the vehicle was barreling toward another officer.

Although no weapon was found, Rogers said he and his fellow jurors had to take seriously the officer’s claim that he believed his life and that of his partner were in jeopardy.

Rogers said the jury was also influenced by the tough questions directed at the car’s driver on the witness stand. The officer’s attorney grilled the driver about his criminal past, bringing up the cocaine found in the car and marijuana he had in his jacket on the day of the incident.

“The way the defense made it look was there were these two gangsters out there, riding around, and selling crack,” Rogers recounted. “You had an officer using deadly force, but he was up against dangerous drug dealers. It worked.”

The jury acquitted Lawlor.

His attorney, Michael Georgetti, said in an interview that he worked to build what he sees as a natural alliance between jurors and officers to win the case. “You don’t get people on a jury with a criminal record,” Georgetti said. “If a police officer says stop, they stop. They don’t put their car in drive and speed away.”

As hard as it is for prosecutors to win a conviction or an admission of guilt, it’s even harder to persuade a judge or jury to give an officer significant prison time.

For the nine officers convicted in state prosecutions, sentences ranged from six months to seven years, The Post analysis shows. One of the other cases, the shooting death of the 92-year-old woman in Atlanta, was taken up by federal prosecutors, who added civil rights violations to manslaughter charges and won stiffer sentences, ultimately sending the two convicted officers to prison for six and 10 years.

Six of the officers who faced state prosecutions were convicted after going to trial. On average, they got 3 1/2 years.

But prosecutors were eager at times to dispense with cases without a trial by negotiating a plea agreement. Winning a conviction against an officer is tough. And the cases can come with bruising headlines and strained relations with the very police department that prosecutors rely on daily to help build other criminal ­cases.

In at least six cases, lawyers for the officers were able to get the charges reduced, resulting in lighter sentences. These cases included convictions as well as instances in which judges deferred convictions and put officers on probation for their actions. These officers on average did about 2 1/2 years behind bars.

Antonio Taharka, a former police officer in Savannah, Ga., fatally shot a probation violator as he scrambled over a fence, trying to escape arrest. He ended up spending three months in a county jail.

The grand jury that indicted Taharka on voluntary manslaughter charges, which can bring up to 20 years in prison, said the officer had killed the suspect “while acting solely as the result of a sudden, violent and irresistible passion.”

But members of the local African American community rallied around Taharka, recalled former prosecutor David Lock, who had presented the case to the grand jury. “He was an African American officer and was beloved,” Lock said. “There was more of an outcry about why he was being charged versus why not.” At the same time, Lock said, there was little public sympathy for the 41-year-old victim, Anthony Smashum, a black man who had a long rap sheet, including convictions for rape and assault.

Lock said he believes these factors delayed the prosecution and ultimately contributed to lessening the charge against Taharka.

Chatham County District Attorney Meg Heap, who replaced Lock in the elected post, downgraded the charges from voluntary manslaughter, agreeing that Taharka could plead guilty instead to the less-serious charge of involuntary manslaughter, which carries a maximum of 10 years. Heap said in an interview that the lesser charge was a better fit for the facts of the case. But she said her office made no promises about a reduced sentence, leaving that up to the judge.

At sentencing in 2009, Superior Court Judge John E. Morse Jr. said he had to strike “the most delicate balance.” In assessing the fatal incident, he said, “All I can glean from what I have read and heard up to this particular point is that it was not malicious and ill-wanton.” He told Taharka moments later, “What you have to deal with from a day-to-day basis as an officer of the law, no one can stand in your shoes other than you.”

Morse ordered Taharka to spend three months in jail and nine months confined to his home except when he was working. If he follows the terms of his probation of nine years, his record will be wiped clean.

Messages left for Taharka’s lawyers were not returned, nor were a series of e-mails requesting comment. Taharka resigned from the police department about a year after the 2007 shooting.

Other videos of police shootings

Georgia Ferrell’s daughter is a police officer. Her son was shot dead by one.

“My daughter loves being a police officer, but she knows that the uniform doesn’t make you a good person,” she said.

Officer Randall Kerrick of the Charlotte-Mecklenburg police department is scheduled to face trial this summer on charges of voluntary manslaughter arising from a fatal encounter with Ferrell’s son in September 2013.

It was well after midnight when Jonathan Ferrell, 24, a former Florida A&M football defensive back, crashed his Toyota Camry, rolling it into a ditch, according to the police report. Dazed, he kicked out the rear window, crawled from the vehicle and made his way to a nearby house to seek helps.

But when he started banging on the door, the woman who lived there panicked and called 911. The officers who responded to the call told investigators that they believed that Ferrell was a threat, records show. When Ferrell, who was black, did not follow their orders to get on the ground, Kerrick, who is white, shot him 10 times, police officials said.

After Police Chief Rodney Monroe saw the 15-second dashcam video of the incident, he arrested Kerrick within the day, saying the officer “did not have a lawful right to discharge his weapon during this encounter.”

Kerrick’s attorney Michael Green said the video tells a different story. “Officer Kerrick did his job that night. Although the shooting was a tragedy, it was justified,” Green said. “On the video, you hear the officer telling him multiple times to get down on the ground . . . and at trial, I think you’ll find folks who say [Ferrell] wasn’t necessarily looking for help that evening.”

Georgia Ferrell worries that jurors will believe that account. As someone who has personal reasons to hold most police in high regard, she recognizes how difficult it is to convict and punish an officer.

“Society has put it into our heads that the officer is always right,” she said. “That has to change.”

Alice Crites and Steven Rich contributed to this report.

Kimberly Kindy, Kimbriell Kelly, “Thousands dead, few prosecuted”, April 11, 2015, Washington Post, http://www.washingtonpost.com/sf/investigative/2015/04/11/thousands-dead-few-prosecuted/

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