The Police Officers Who Shot Philando Castile and Alton Sterling Probably Won't Go to Jail

This story was originally published on Indian Country Today.

The recent fatal shootings of Philando Castile by Officer Jeronimo Yanez in Minnesota and Alton Sterling by Officer Blane Salamoni in Baton Rouge, Louisiana, were both caught on video, but demonstrations all over the country reflect the widely held opinion that the shooters will face no consequences.

The protesters are probably right. All crimes are not equal. All homicides—cases where one human being kills another—are not equal. For example, some homicides are justified, and legal. When a convicted murderer is executed, the death certificate lists "homicide" as the cause, but the killing is legally (if not morally) justified and no investigation is necessary.

Officer-involved shootings are often on the line that separates justified homicides from others, so they are investigated. That investigation is always unlike what is done for other homicides and so the fact that officer-involved shooting investigations often do not reach conclusions similar to what we see in other shootings should be no surprise. To ask, as a matter of public policy, whether the differences in officer-involved shooting investigations ought to exist requires knowing what they are.

Here are eight ways an officer facing a homicide investigation is treated differently than a civilian:

1. When an officer is killed, the criminal justice system pulls out all the stops to catch the culprit. But when an officer kills someone, everyone in that system thinks, "Did he think he had to kill to avoid being killed?"

Similar reactions attend the shootings of prosecutors, judges, or witnesses. When in my career as a judge I have had to come to work under death threat or have my home close-patrolled, I did not feel totally safe, but I felt better than if the police reaction to the threat were nothing more than starting a file. There cannot be a reliable rule of law when persons tasked to enforce the law can be assassinated with impunity.

The system has to protect itself or nobody is safe, but abandoning fairness or just the appearance of fairness undermines the system. Think of the Leonard Peltier case in terms of the procedure. Even if he's guilty, he deserved a fair trial, and protection of law enforcement officers is the only possible reason for keeping a man of his age and health behind bars.

Cop-killers get (and deserve) special attention, but there are few limits to that attention, and the victim in a officer-involved shooting is usually made to appear to be a potential cop-killer.

2. When the officer is the perpetrator of the homicide, he or she is almost never interviewed in the same circumstances as any civilian accused of homicide.

A civilian person of interest in a homicide may be interviewed without even a chance to change out of bloody clothes, and investigators will conduct the interview without a defense lawyer present, if possible. A spokesman for the Baton Rouge Police Department told The New York Times that the officers involved in the shooting of Alton Sterling were not interviewed the day of the incident because "we give officers normally a day or two to go home and think about it."

Taking a human life unleashes powerful feelings, even when doing so was necessary. Considering that, a police officer involved in a shooting will often be sent home right away and only returned to duty in a desk job. By union contract or by custom, the officer will have a lawyer provided and plenty of opportunity to talk to that lawyer before giving a statement for the record.

When the system finally does get around to recording the officer's statement, the officer knows what's on the video (if there is one, and there so often is now with smartphones and body-cams prevalent), and so is unlikely to give a statement that conflicts with it.

3. The normal burden of proof is reversed.

In normal circumstances, the homicide investigator is looking for facts to show probable cause to believe that an unjustified criminal homicide took place and the person of interest committed it. Studies of how innocent people get convicted show a lot of "confirmation bias." That is, investigators start with a theory of what happened and they minimize or disregard evidence that does not support their preferred theory.

When a police officer has deployed deadly force, the bias of every police investigator is to believe that force was justified. Nobody wants to charge a fellow officer with a crime for coming down on the wrong side of a line around which they have all had to dance. This is part of the reason why rookie officers don't get assigned to investigate other officers.

4. People experienced in how the system operates usually get more favorable results than "one-shotters."

The most obvious example is that law enforcement officers have written reports of interrogations and have testified in court before.

The lawyers who represent police officers — particularly those provided by police unions—are frequent fliers.

5. There is no credible motive.

The law books tell you the elements of a criminal offense are a bad act (actus reus) with guilty state of mind (mens rea). Motive is almost never something that has to be proven to get a conviction, with very limited exceptions. Still, a jury trial involves competing stories that try to explain the same facts. Juries do not favor stories where a character acts without any motivation.

Unlike in most homicides, when an officer is the shooter, chances are the deceased and the shooter did not know each other. A police officer does not have the assumed motive that a robber or rapist or gang member might for shooting someone.

The jury is not going to buy the story that Officer Friendly woke up one morning and decided to kill a non-white victim. A record of racism might help the prosecutor but even in those cases where racism can be shown, it begs for an answer to the question of why this victim on this day?

6. The statistics on "bad shootings" are not admissible in court.

If the Podunk Police Department was involved in 19 shootings last year and all involved civilians who were minorities, the prosecutor cannot use that to argue, "Here we go again!" This rule is not that different from the one that applies to civilians accused of criminal homicide. If the defendant has shot several people in the past, this cannot be brought up unless he first testifies about what a peaceful and law abiding person he is.

7. The presence of a firearm on or around the deceased gets attention from everyone in the system when the claim is self-defense.

Both Alton Sterling and Philando Castile were armed and even if they did not brandish a weapon, they could have. Whether the deceased had a permit simply doesn't matter. In this country, many people believe that people don't kill people. Guns kill people.

It's to reap the advantage of a ready made self-defense narrative that corrupt police have been caught using "throw-downs," weapons kept handy to plant on homicide victims to justify the killing.

8. The prosecutor needs the police department and vice versa.

Should prosecutors and police start urinating on each other's shoes, there is no practical limit to how bad each can make the other look in court, and in the court of public opinion.

For this reason, the investigation and prosecution of all officer-involved shootings need to be taken away from the department for which the accused officer works. The choices are a prosecutor from some other jurisdiction (complicated), a special prosecutor (expensive), or a prosecutor from the state Attorney General's office (possible conflict of interest if the AG has to defend a civil suit from the same incident).

The final way to mitigate the team spirit between prosecutors and police officers is to go to a federal agency. To do this routinely would require legislation, because every officer involved shooting does not contain a federal issue.

Are the feds more competent and honest than the state police? The FBI reported that between 1993 and early 2011, their agents killed 70 people and wounded 80 others. All 150 incidents were internally investigated by the agency that claims to be incorruptible and the source of forensic science that is state of the art for the entire world. How many FBI shootings out of 150 were found to be legally justified?

One hundred and fifty.