Click image for book’s page on Starve Monkey Press.
“PROSECUTORIAL DISCRETION” Fictional Story
Barbara LaWall: No Prosecution Despite $3.4 Million Settlement in Jose Guerena Killing
TUCSON (AP) – The family of a former Marine who was killed when a SWAT team raided his Tucson-area home in 2011 has settled a lawsuit with four police agencies for $3.4 million, a newspaper reported Thursday.
If they did nothing wrong, why settle? And since a civil lawsuits’ 51% “preponderance of evidence” is basically a mirror-image of the standard for indictment, why hasn’t Pima County Attorney Barbara LaWall done anything to prosecute the SWAT officers who broke into Guerena’s home without sufficient warning, shot him, and denied paramedics access until after he was dead? The article says:
“The county attorney’s office later cleared the SWAT team officers of any wrongdoing.”
Notice it doesn’t say “a grand jury cleared the SWAT team.” Because if it had been put in front of a grand jury, whose indictment standards are similar to the culpability standards applied in civil cases, then there’s a good chance that someone involved would have been indicted. This should be plain-as-day in light of the fact that Pima County decided to settle rather than let the lawsuit go to trial. So why hasn’t the Pima County Attorney moved to indict anyone for anything?
The Dangers of the (prosecutor-enabled) Two-Track Justice System
The victims’ shot up truck – a “no crime” scene
Remember the LAPD shooting two completely innocent women in a pickup truck during the Chris Dornan manhunt days? Well, the city has decided to settle and pay them over $4 million:
“The women injured when Los Angeles police opened fire on them during the manhunt for ex-cop Christopher Dorner have reached a $4.2-million settlement with the city, sources told The Times.
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Margie Carranza, 47, and her mother, Emma Hernandez, 71, were delivering newspapers in Torrance on Feb. 7 when LAPD officers shot repeatedly at their blue Toyota Tacoma. Hernandez was shot twice in the back, and Carranza was injured by broken glass, an attorney for the women said.”
As a commenter on the article asks, “So what became of the cops that shot up that neighborhood?????”
What became of those cops was that they didn’t get charged with anything, thanks to the conscious, deliberate, and very calculated decision by the Los Angeles County District Attorney Jackie Lacey NOT to put those cops’ (and/or their superiors if they issued some kind of an unlawful see-something-shoot-something kind of order) actions in front of a grand jury. I mean, 4.2 million dollars, two injured people, and a pickup truck destroyed by bullets ought to be some kind of a signal that some serious criminal wrongdoing took place.
- LA County District Attorney Jackie Lacey
When this kind of thing happens – a wrongful police shooting with no prosecution whatsoever – the very dangerous precedent is set that innocent civilians in an American city can be fired on with less restraint than the US military is often required to use when conducting combat operations (battles) in war zones. I would know – I did three tours in Iraq where US Marines were required to give verbal warnings and other signals (hand signals or pyrotechnics) before firing upon “suspicious vehicles.” You couldn’t just shoot up a car because it matched the description; you had to give some kind of warning, an honest attempt to get the driver’s attention – even in an environment where suicide car bombs were a favorite tactic of an enemy that consisted of far more than one man.
Judge Does the Right Thing – Prosecutor Doesn’t
State Attorney Glenn Hess might want to look through some of those books behind him to see what they say about trespassing and destroying evidence
Judge in Florida dismisses case, explaining that police broke the law, trespassing on suspect’s property in order to place a GPS.
Found story via Dennenger via Reason.
Some of the judge’s words:
“…Indeed, it is difficult to imagine a clearer example of this than what happened here; that is, law enforcement destroyed the only relevant GPS data after they obtained the data illegally and fully intended to withhold the data from everyone. Law enforcement clearly intended to cover up the illegal use of the GPS by both withholding and destroying the relevant GPS data from not only the Defendant, but also from the State. This clearly offends the sense of justice and fairness upon which the judicial system relies…”
Destroyed evidence….”illegally obtained”…”illegal use”…”cover up”
What also offends the sense of justice and fairness upon which the judicial system relies is that the prosecutor knows all this – his office has just been notified in the most blunt and obvious manner, verbally and in writing, by a judge – and he decides not to prosecute the cops involved for things like trespassing and destruction of evidence.
Glenn Hess, State Attorney, 14th Judicial Circuit, Florida, has no problem with police illegally trespassing on private property or illegally destroying evidence.
A Proposed Reform
This may not be the cure all for official abuse and look-the-other-way prosecutors, but it beats having one or a handful of individuals deciding who gets a free pass (much thanks to Pete of WRSA for the language below):
A proposed amendment to the state’s criminal procedure law regarding grand jury practice:
A) Whenever an employee or contractor of the state or any political subdivision thereof is
1) terminated for cause; or
2) found to be criminally or civilly responsible based on the results of an official investigation; or
3) whenever actions by that employee or contractor form the basis for any civil settlement or judgment,
the district attorney for the county in which the employee or contractor was employed or acted must bring all evidence from any investigation, civil suit, and any other competent source before the grand jury of that county to determine whether to indict the employee or contractor for criminal charges.
B) The provisions of subdivision A apply whether or not any of the parties in any related litigation have entered non-disclosure agreements.
Cumberland Co, Maine DA, Stephanie Anderson – What are you waiting for??
Capt. Shawn Welch (right, w/ pepper spray) was investigated, fired, re-hired and suspended for this……but never charged with a crime.
What are you waiting for, Stephanie Anderson? Dos this not fall under your jurisdiction? Your website seems to suggest it does:
“…. handles all criminal matters for incidents investigated by the Portland Police Department,…, Maine Department of Corrections, Maine Drug Enforcement Agency, Boston & Maine Railroad Police,…”
Full article here about officials now trying to find out who the whistle blower was who leaked the picture.
Anyway,..
Case is pretty clear cut: perpetrator was investigated and punished in-house, clear evidence exists of his crime, and the DA doesn’t see any need to put the bad guy(s) in front of a grand jury. My guess is this victim will sue, maybe try to press charges. Then, my guess is that, as these things usually go, the perpetrator’s employer will settle. And then the whole business will be over, the message being sent that if you’re an officer at this prison you can pepper spray a completely restrained inmate and the worst that will happen to you is a 30 day suspension.
Contact info and website for the DA who is currently overlooking this:
District Attorney Stephanie Anderson
anderson@cumberlandcounty.org
Cumberland County Gov Facebook page
Something to keep an eye on: apparent look-the-other-way prosecutor now Governor of New Mexico
‘forgotten’ inmate Stephen Slevin before and after being held almost 2 YEARS in solitary confinement – PRE-TRIAL – on a DUI charge
Victim, Slevin, has won a federal lawsuit for $22 million and the county has recently settled a separate lawsuit for $15.5 million.
The jury’s verdict in the federal trial states that they found, by a preponderance of the evidence, that the Dona Ana County Jail’s Administrator, Chris Berela, was liable for “depriving Defendant of his constitutional right to humane conditions of confinement…depriving Defendant of his constitutional right to receive adequate medical attention…(and) depriving Defendant of his procedural due process rights.”
I couldn’t find anything anywhere saying Berela had been fired or otherwise punished. And, of course, no one was charged with anything.
The DA whose office handled Slevin’s original DUI charge was none other than the current Republican Governor of New Mexico, Susana Martinez.
NM Governor and former prosecutor Susana Martinez
Was she made aware of this situation? She was the DA for the entire time Slevin was detained. Did she see some kind of list of all the pre-trial inmates with their intake dates? Did she see at some point that this guy had been held for almost two years? One of her subordinates had to have been made aware of this when the DUI charges were dropped. Did that subordinate pass this info on to Martinez?
The state’s Democratic Party asks the questions:
The DPNM is calling on Governor Martinez and the Dona Ana district office’s to reveal what she knew about this case and how she allowed this to happen while serving as District Attorney – and to also account for her lack of actions in protecting the rights of Mr. Slevin.
Below is a statement from DPNM Executive Director Scott Forrester on this black eye for New Mexico:
“This is an absolute disgrace and total lack of leadership by Susana Martinez to let such a horrific action to happen under her watch. How could she let this happen, what did she know, and why did she not act?”
It’s good that they’re asking this, although I have no doubt that the state Dem party wouldn’t be asking this if Martinez were of their party. And I doubt the state GOP be asking these questions on their website any time soon. Anyway, I’ll be watching to see what the what else shakes out of this.
Denver, CO District Attorney Mitchell R. Morrissey
Denver DA Mitch Morrissey (at podium)
…doesn’t want to do his job and put former Denver Police Officer Devin Sparks’ actions in front of a Grand Jury despite the fact that a 3 member “Civil Service Panel” has found that Sparks used excessive force AND lied about it. Sparks’ actions were enough to get him fired, plus they resulted in the city paying $17,500 to then-Officer Sparks’ victim.
Link to article, but there are many others like it, same old song and dance, same old two track justice system, enabled, ultimately, by the jurisdiction’s top prosecutor, who will be the Grand Marshall at the city’s St. Patrick’s Day parade this year.
Looks like there’s been a pretty long train of abuses with the Denver PD, and Morrissey has been in a position to do something about it since ’05:
Denver PD on YouTube
Wiki lists a good deal of misconduct incidents between ’06 and ’10.
What he’s done is look the other way 100% of the time.
If THEY decide not to enforce the law, why shouldn’t WE just decide not to follow it?
David Gregory violates DC law
Perhaps that’s a question a lot of civilian street criminals ask themselves. Why respect the law when so many of those who administer it apparently do not respect it themselves?
Welcome to Prosecutorial Discretion, a blog focusing solely on this concept and the problems it creates. These problems should, IMO, be obvious, but discussions of police abuse and other cases of official corruption often overlook the simple fact that it is the jurisdiction’s top prosecutor (often elected!) who enables the corruption, abuse, and criminality by deciding not to bring certain bad actors in front of a grand jury.
You can have all the laws you want (or don’t want), but, I would argue, you don’t have THE RULE OF LAW so long as a single or handful of individuals get to decide when to enforce the laws and when to look the other way. A recent obvious example would be David Gregory holding a 30 round magazine on TV in Washington, DC where such magazines are illegal and the local DA deciding not to prosecute. Something’s seriously wrong when the law can so blatantly be broken and one individual can decide that it doesn’t matter. Rule of men, not rule of law: that’s what the situation is. Other than the fear of getting caught getting put in jail by THEM, why should I follow the law? Why should I treat the law as anything other than a game of cat and mouse?
In the first post on this site, I’ve decided to highlight the Philly DA for an apparent abuse of his prosecutorial discretion power. Something tells me this won’t be the last time he looks the other way in a case involving a police officer apparently committing a serious crime.
Phillidelphia District Attorney R. Seth Williams
PROSECUTORIAL DISCRETION 