Breaking Rank (52 page)

I looked at the black-and-white DMV photo clipped to the arrest report. Joey was a man now, his chubby face topped by a mop of dishwater blond hair.

*
We learn later from a friend of Carberry's that Joey had lost the other shoe as Carberry loaded him into the car that morning. He'd refused to go back for it.

*
Mullen, long since retired and living in Bandon, Oregon, writes police procedurals. If you're in the market for a good, authentic read on homicide investigations, and homicide detectives, I highly recommend his books.

**
In preparation for this chapter, I opened, for the first time since the shooting, a file marked “J.A.C.” Among the yellowing reports, their staples rusted to dust, is the Evidence Report for “Special Investigation CG-2123” by Detective J. L. Sanders. Item No. 3 is “(1) Plastic handle screwdriver wedged in steel tape, wrapped in blue cloth. Received by SANDERS, placed in Crime Lab.”

CHAPTER 24

CITIZEN OVERSIGHT

T
HE DEBATE HAS RAGED
for decades, pitting citizen against citizen, political activist against government, police union against city administration. It's time to blow the whistle, end the agony, and do the right thing: Every city and county with a history of strained community-police relations should employ independent public oversight to investigate citizen complaints. No institution, including the police, can adequately police itself.

In 2001 the National Institute of Justice (NIJ) published “Citizen Review of Police: Approaches and Implementation,” written by Peter Finn. While declining to promote a particular system, the report describes thoroughly the costs, advantages, and disadvantages of various systems of citizen oversight. It identifies four models:

   
Type
 
1:
   
Citizens investigate allegations
of police misconduct and
recommend findings
to the chief or sheriff.

   
Type
 
2:
   
Police officers investigate allegations and develop findings;
citizens review and recommend
that the chief or sheriff approve or reject the findings.

   
Type
 
3:
   
Complainants may
appeal findings
established by the police or sheriff's department
to citizens,
who review them and then recommend their own findings to the chief or sheriff.

   
Type
 
4:
   
An auditor
investigates the process
by which the police or sheriff's department accepts and investigates complaints and reports on the thoroughness and fairness of the process to the department and the public.
*

The NIJ study, which examined nine representative citizen review jurisdictions across the country, analyzes each according to its: (1) openness to public scrutiny, (2) mediation option, (3) subpoena power, and (4) right of the officer to legal representation. The Berkeley (California) Police Review Commission, for example, a Type 1 system, opens its hearings and commission decisions to the public and the media, holds general PRC meetings for the public to express concerns, issues full public reports, including interview transcripts, requires the city manager to make his or her response public after review of PRC and Internal Affairs findings. (IA's findings and the chief's discipline are not made public.) Berkeley's mediation option is described as “dormant.” Its model of citizen oversight includes subpoena power. The officer has a right to legal representation both during the investigation and at the hearing.

By contrast, hearings are private under the Minneapolis Civilian Police Review Authority, also a Type 1 system. The complainant is simply informed whether his or her complaint was sustained. The general public is invited to monthly meetings to express concerns. The chief's discipline is made public. Mediation is an option. There is no subpoena power but officers are required to cooperate. Officers are entitled to union representation during the investigation, and legal representation during the hearing.

San Diego employs a Type 2 system, with a twenty-three-member Citizen Review Board. All Internal Affairs investigations are reviewed by a rotating three-member panel of the board. In a collaborative, rather than “adversarial,” approach, the panel attempts to resolve disagreements directly with Internal Affairs brass. The case is not closed until the panel and the board agree with the IA finding. If the CRB disagrees with an IA finding, it appeals to the city manager. If the board disagrees with the city manager's decision, it is authorized to appeal directly to the district attorney, the grand jury, or, in the case of alleged civil rights violations, the Department of Justice. Since its inception in 1989, the board's “negotiations” with IA have resulted in several changes to the original department finding (I recall one in which Homicide had failed to interview a crucial witness in a fatal police shooting). Three cases have been referred to the grand jury.

Seattle has a generally weak, hybrid form of citizen oversight, falling
loosely into Type 2 and Type 3 categories. Established after I left (but responding to a mess created on my watch, a theft and attempted cover-up), the city created an Office of Professional Accountability. However, while the OPA is headed by a civilian employee who oversees internal investigations, she reports to the chief of police. A new three-person “citizen review” body is confined to reviewing
only
completed, redacted, randomly selected internal investigations, then reporting to the city council any “trends and patterns” it may find. Finally, there is a citizen auditor position, which was in place when I arrived in 1994. Held then by retired Superior Court Judge Terrence Carroll and now by former U.S. Attorney Kate Pflaumer, both highly respected in the community, the auditor's position is arguably the strongest of the constellation of “review” mechanisms. But, thanks to the uncompromising opposition of the police union, Seattle's approach to citizen oversight is scattered, inefficient, and unsatisfying to many.

New York City has a fully independent Civilian Complaint Review Board, a Type 1 model. Created in 1993 and staffed by 164 personnel (115 investigators), it receives, investigates, and holds hearings on citizen complaints about excessive or unnecessary force, abuse of authority, discourtesy, or offensive language. It has subpoena power, access to records, and the authority to make official findings on the 4,000 to 5,000 cases it receives each year.

At the end of 2004 there were only sixty-seven citizen review systems in place nationwide. With almost nineteen thousand local law enforcement agencies, it's safe to say most cities have rejected the notion of independent oversight of police practices. Even where there is little or no philosophical resistance, mayors, city managers, and city councils have decided the financial costs are too high.

Citizen oversight budgets vary greatly, predicated mostly on whether investigations are carried out by the department (then reviewed by the oversight body) or by the citizens themselves.
*
The “mean cost per complaint
filed and investigated” in 1997 for those nine agencies studied by the NIJ? It ranged from $20,000 a year for a one-fifth-time staffer in Orange County, California, to $4,864 per month in Berkeley. New York's CCRB costs the taxpayers $10.5 million annually (or $2,100 per investigation based on five thousand complaints per year).

It's not just philosophical, or financial: Cops and their unions also
loathe
citizen review boards because of what they've seen in their own cities or heard about in others: untrained, unskilled, biased investigators; degrading treatment in public hearings; investigations that drag on for months, if not years; findings unsupported by the facts.

These were the kinds of issues on the minds of the PBA and its members who protested, violently, when in September 1992 New York Mayor David Dinkins expressed his support for the creation of the CCRB. Thousands of officers demonstrated in front of City Hall, blocking traffic to the Brooklyn Bridge and shouting racial epithets. (Rudolph Giuliani was there as an anti-CCRB protestor; he was elected mayor the following year.) It was ugly, from all accounts—not the best way to press a grievance about “public oversight.” Yet, according to Human Rights Watch, the officers were prescient in their concerns.

HRW reports that the New York Civil Liberties Union, perhaps the strongest backer of the creation of the CCRB, soon became one of its most vociferous critics. Why? Lack of adequate funding, mismanagement, incompetence, shoddy investigations, a “guilty” finding in only .05 percent of the cases. And investigations that took forever to complete.

The CCRB says today that it completes the average investigation in nine months (which means, of course, many take far longer). If the
average
consumes three-quarters of a year, you can bet that many witnesses will have forgotten what they saw or heard, or will have moved away or died or developed a motive to tell the story differently from the way they witnessed it.

You're a cop, out there in the elements, risking your life, delivering a service a lot of folks didn't ask for and don't want—some of whom let you know it by attacking you, verbally or physically. Whether you respond professionally or not, the last thing you want is to be hauled before a body of
civilians
, second-guessed, berated publicly, your reputation damaged, your career stalled or destroyed.

It should come as no surprise that some people who complain about police officers lie. They don't like cops. Or they don't like the fact that they got caught doing something they shouldn't have. Or they figure a complaint will bolster their defense in court. I believe that when a citizen willfully, provably lies, he or she should be prosecuted—and prepared to defend himself or herself against a civil action by the police officer. Citizen activists bemoan my position on this. They fear that taking action against a lying complainant (in all my years in the business, I met very few who fabricated complaints from whole cloth) puts a chill on the willingness of honest people to come forward. I don't see it that way.

If we want our frontline cops to accept, or at least not defy, citizen oversight (not a bad goal) we owe them an honest, credible system.