January 05, 2011

The Erik Scott Case: Update 9.2: Intent

Since I posted Update 9 only a few days ago, the Clark County Commission has finalized the changes suggested by a commission established for that purpose. Local news articles (available here and here), have brought to light several significant details that were heretofore unclear, and the comments following those articles, suggest that much of the public may not fully understand the fundamental issues relating to the criminal justice system in general and inquests in particular. For those interested in the Nevada Revised Statutes relating to these matters, continue to scroll past this Update to Update 9 where I’ve included that information.

In this update, I hope to clarify some issues, and the involvement of some people, that I was not able to address in Update 9. I also hope to make the essential issues as understandable as possible.

WHAT’S NEW: Ombudsmen must be licensed to practice law in Nevada and will be randomly selected from a pool for each inquest. Before being admitted to the pool, they will undergo screening, including “oral interviews.” At the insistence of Clark County Sheriff Doug Gillespie, ombudsmen must have at least 10 years experience as attorneys and cannot have sued Metro for two years prior to their service, nor for three years after. A “law enforcement official” will sit on the board that screens potential ombudsmen. Ombudsmen will be paid up to $1000 per day during the actual inquest, and up to $300 per day for preparation. Ombudsmen will be required to “seek facts” for the families of those killed, and for the public as well.

The measure passed on a 5-2 vote with Commissioners Tom Collins and Steve Sisolak voting against it primarily because they apparently oppose the idea of an ombudsman. Sisolak expressed concern that the CCC had insufficient input from the legal community. Collins, who favors the status quo, said “I think we give the public a very fair opportunity to attend and see what the outcome would be.” Commissioner Chris Giunchigliani was concerned that the new procedures be established before “we nickel and dime it to death.” However, new Commission Chairwoman Susan Brager made clear that she, and the majority, see this as a work in progress and that they intend to make changes as they see fit.

Also revealed was that the very idea of ombudsmen came from Sheriff Gillespie, who also proposed the idea that representatives of the family and the system meet in two pre-inquest conferences where police files will be “disclosed” to them and they will “determine the scope of questioning at hearing with the aim of digging into what happened during a fatal incident.” It was also Gillespie who asked that ombudsmen have at least 10 years of experience and that a “law enforcement official” sit on any ombudsman screening board.

CONFLICTS OF INTEREST: The justice system, and particularly the criminal justice system, is set up to avoid conflicts of interest. A number of such potential and obvious conflicts are now apparent, and others may eventually become obvious. They are:

(1) An ombudsman cannot “represent” more than one client. An ombudsman is traditionally a disinterested third party that mediates disputes between two or more parties with their consent and agreement to abide by his decision. As the CCC expects their ombudsman to “seek facts”--to represent the families of those killed by the Police and the public--there are many inherent conflicts of interest. It is possible that the CCC knows this; Sheriff Gillespie almost certainly does, as I’ll explain shortly. While such families are members of the public, their interests will of necessity be very different than those of the public at large. The public, for example, has an interest in expecting police officers to be competent and truthful. They have an interest in seeing that their tax dollars aren’t squandered defending officers who break the law. Families of victims, in general, share these interests , but fundamentally, they wish to expose potential wrongdoing and punish, through punitive financial damages, governmental wrongdoing in the hope of preventing it in the future. The public, on the other hand, does not wish to see its taxes rise to pay for such punitive damages, and because they are not personally involved, will usually have little interest in pursuing such matters to their conclusion.

(2) The roles of the District Attorney as prosecutor and the Ombudsman are also in conflict. Both supposedly represent the people, yet in our system, only one legitimately can. One might argue that the DA’s office has, over the years, become essentially defense attorneys for Metro and Metro officers, but that does not relieve them of their ethical and statutory duty to represent the people’s best interests in the pursuit of justice. And if the DA’s office is in fact nothing more than a representative of Metro against the interests of the people, an “ombudsman” with ill defined powers, rather than a fully and clearly empowered private attorney, will not competently represent either families or the people.

(3) The Police have a significant conflict of interest in any involvement in the process of choosing ombudsmen. Sheriff Gillespie has powerful interests in seeing that his officers are always exonerated so that he, and Metro, are not sued and publicly embarrassed. Indeed, he also has an interest in hiring only competent, honest officers and in firing those who are not, but Metro seems not terribly concerned about that in general, and such concerns will inevitably become secondary after a citizen has been killed and the wagons are circled.

(4) The Metro Police Union has a conflict in any involvement in these matters. The loyalty of the Union is to its continuing existence and enrichment, and to the officers it represents. Because the officers are the primary involved party in inquests, and potentially may be criminally charged and may be sued in civil court, any involvement by them or their representatives in establishing or running such a system is an inherent conflict of interest. Officers may be reasonably represented by an attorney, hired by themselves or by the union, but the union should not be involved, indirectly or directly, in any part of the process. And while telling officers not to cooperate with the criminal justice system or the police agencies that employ them may not be a specific violation of the law, it is, at best, ethically troubling.


(1) Inquests in most states serve to answer two questions: What was the cause of the victim’s death, and was that cause non-criminal or criminal?” In many states, inquests are not charged to name those involved if the death is criminal. In Nevada, that is required, but regardless of the findings of any inquest, prosecutors are not required to prosecute.

(2) The criminal justice system is inherently adversarial. It was designed that way so that the truth would out. Anyone suggesting that any part of that system should not be adversarial or that the police are somehow being mistreated by an adversarial system are either woefully misinformed, lying to the public, or both.

(3) Any officer who cannot professionally deal with adversarial questioning is a weakling and should not be a police officer. In a professional agency, their days would be numbered and that number would be small indeed.

(4) Law Enforcement Officers are citizens, and as citizens, they retain all of their rights under the Constitution. They, like any citizen, may invoke their right against self-incrimination; they may, in common terms, “take the Fifth.” However, there is no such thing as an unrestricted right, and the exercise of some rights in some ways may legitimately result in consequences.

(5) When a citizen “takes the Fifth,” in a criminal case, judges are obliged to instruct a jury that they may not draw any conclusion about their innocence or guilt. Human nature being what it is, jurors might drawn the logical, adverse conclusion anyway. In any case, apart from putting themselves in potential jeopardy at the hands of a jury, the average citizen will not normally be otherwise inconvenienced or punished for exercising a fundamental right.

(6) No one, civilian or police officer, may ignore a subpoena. It is not a matter of choice. For both, the consequence is contempt of court, punishable by up to a year in jail (in most jurisdictions) and/or fines. However, police officers may also suffer administrative penalties up to and including firing, and in some states, revocation of professional credentials, without which one may not work as a police officer. Some states also make willful dereliction of duty a criminal offense.

(7) No one, civilian or police officer, may choose not to testify if subpoenaed. One may not tell the judge that they will not testify, nor may they merely sit and remain mute. In such cases, a judge will order the witness to answer questions. If they refuse, unless they take the Fifth to every question, they can, and usually will, be found in contempt of court.

(8) Police officers may choose to cooperate with official investigations or they may not, but if they refuse, they are not protected from consequences. There is no right to refuse to cooperate. In fact, participating fully and freely in all investigations is expected of all police officers. It is just a part of the job for all officers who are expected by the public to always behave honestly and faithfully. Doing otherwise is like a firefighter suddenly refusing to handle hoses or to cooperate in arson investigations. Such refusal may invoke penalties up to and including firing, and again, possible revocation of professional credentials. In Nevada, state law specifics that officers refusing to cooperate with investigations may be charged with insubordination, which can lead to firing.

(9) If an officer refuses to participate in an investigation and/or takes the Fifth, there is no requirement that their employer, their peers, and the public ignore what they’ve done. In fact, an officer who will not participate in an investigation of their own actions or who takes the Fifth must be prepared to be fired, for they have placed themselves outside the boundaries of trust absolutely necessary for every police officer. An officer who will not cooperate in police investigations--this sounds like a bad parody--or whose integrity is called into question is essentially useless. They can no longer do the job for which they have been hired.

(10) Taking the Fifth does not apply in civil proceedings in the same way that it does in criminal proceedings. Since one’s life and liberty are not in jeopardy in a civil proceeding, a jury may generally consider taking the Fifth to be an admission of involvement or guilt and act accordingly.

INTENT: It is now apparent that substantial portions of the changes in inquest procedure were the brain children of Sheriff Gillespie. This is significant in that one may gain a potentially clear picture of his intent from his actions and statements.

Gillespie opposes families being represented by private attorneys. Of course he does. They would be focused, competent advocates for those families not subject to interference with or control by Gillespie.

Gillespie can’t, politically speaking, appear to ignore those calling for fundamental change, so he demanded ombudsmen. Not only that, he will have a role--likely akin to veto power--in choosing them. They must, again at his “suggestion,” have at least ten years of experience in the law. Finally, they cannot have sued Metro for two years prior to their ombudsman duties and may not sue Metro for three years thereafter. And the best, and most stealthy, part is the two pre-inquest conferences where supposedly all information will be shared and the scope of the questioning at the inquest will be determined.

Sheriff Gillespie was undoubtably reelected because he is a capable politician, arguably supported by the kind of corrupt political establishment for which Las Vegas has become justly infamous. All of these provisions appear, on their face, reasonable and defensible, but just under the surface their real reason for being awaits public discovery.

Since 1976, Coroner’s Inquests have been used to avoid discovery and limit liability. Inquests not only provide apparent exoneration for Metro, but provide political cover for a DA’s decision not to charge officers. If all potential legal action can be stopped at an inquest, if no officer is charged with a crime and is therefore, afforded a preliminary hearing and a trial, Metro is in control. Metro has developed a long-standing reputation for stonewalling, for refusing to hand over, reports and other related documents to defense attorneys and attorneys pursuing civil suits. By avoiding preliminary hearings, Metro can avoid court orders to produce such information and the publicity the information would produce.

The last thing Gillespie wants is to have an effective advocate for an aggrieved family at an Inquest. Their demands for information could not easily be ignored or put off. Their questioning of officers and other governmental employees could easily produce damaging information. By establishing ombudsmen who serve multiple masters, Gillespie can limit potential damage. The rest of his rules are the means by which he limits damage and exerts control.

Requiring ombudsmen to have ten years of experience seems reasonable, but it is a control mechanism. This would allow Gillespie to know those attorneys better and to judge how they might act. It would also eliminate younger attorneys who might be prone to aggressively pursue the truth if that truth would tend to indict Metro. Some of the Clark County Commissioners were worried that this rule would limit the number of attorneys available for ombudsman duty. They are right to worry about this, but should be worried about much more.

Allowing a law enforcement representative to directly have a hand in choosing ombudsmen, again, appears reasonable, but it is a conflict of interest, and in practice could be essentially a Metro veto. Would anyone care to bet that such representative would be Sheriff Gillespie, or at the very least, one of his most trusted fixers? If the ombudsmen are to be truly independent, competent professionals chosen under established rules, why does Metro need a direct hand in the process? Shouldn’t they have full confidence in the process the Sheriff himself has set into motion and claims to support?

Requiring ombudsmen not to have sued metro for two years prior to service might seem facially fair and reasonable, but again, there is an ulterior motive. Metro certainly does not want lawyers who have actually done battle with them involved in an inquest. Such attorneys will almost certainly not have a positive view of Metro, but worse, will have intimate and damaging knowledge of Metro’s structure and methods, knowledge that could prove very harmful and embarrassing if put to use in an Inquest. In essence, Metro is arguing for experience in their 10 year rule, but arguing against it in this rule.

Requiring that ombudsmen not sue Metro for three years after serving as an ombudsman might also seem reasonable. However, this is yet another attempt to keep lawyers who know too much about Metro and its methods from being in a position to cause damage. There is a pressing statutory reason, a reason with which Sheriff Gillespie must surely be familiar:

NRS 41.036  Filing tort claim against State with Attorney General; filing tort claim against political subdivision with governing body; review and investigation by Attorney General of tort claim against State; regulations by State Board of Examiners.

1.  Each person who has a claim against the State or any of its agencies arising out of a tort must file the claim within 2 years after the time the cause of action accrues with the Attorney General.

2.  Each person who has a claim against any political subdivision of the State arising out of a tort must file the claim within 2 years after the time the cause of action accrues with the governing body of that political subdivision.

In plain language, in Nevada, attorneys have two years after the wrongful death of a citizen to file a lawsuit. Gillespie knows that inquests commonly take place within a few months of such deaths, and certainly within a year. The three year rule is simply a means of preventing lawyers experienced in dealing with Metro and knowledgable in their ways--particularly dangerous to Metro--of suing them. The statute of limitations will have run out.

The idea of conferences before an inquest where everyone will share and share alike and agree on the scope of questioning is a political master stroke. One can’t help but admire Gillespie’s political savvy as much as they suspect his self-serving cynicism. Sheriff Gillespie can stand before he public and say that he is so concerned for the families of victims that they have not one, but two opportunities to get information and determine the scope of questioning. What could be more fair?

But why should there be any necessity to agree on the scope of questioning? State law establishes essentially three questions to be answered by inquests: Who was killed? What caused their death? If a potentially criminal matter, who was responsible? Therefore the scope of questioning should include any and all lines of questioning into any matter that might fully answer those questions. This should simply be included in Clark County inquest rules.

This provision is yet another cynical attempt to control the process. Remember that families are not allowed their own attorneys, so the only entity present that truly knows the ins and outs of the system will be Metro, and knowledge is power. As I mentioned in Update 9, Metro has a long-standing reputation for refusing to cooperate in the exchange of information. There is no reason to believe that this practice will change, yet the process will give Metro at least two advance opportunities to discover what the families know and to prepare to counter them at the inquest. And of course, Metro will do everything possible to limit the scope of questioning. They might simply outmaneuver a family still in shock with grief. They might simply refuse to cooperate and allow things to become a stalemate, secure in the knowledge that a Justice of the Peace who will presumably be in charge of resolving such stalemates, will likely give a family less than they might otherwise get.

SUMMARY: While some of the Clark County Commissioners are doubtless doing their best to improve the inquest system, any man-made construct has unintended consequences. It is also possible that Sheriff Gillespie’s motives are likewise laudable and the truth of the changes I’ve outlined here are merely unintended consequences. However, that would be yet another amazing coincidence in a case full of amazing--and troubling--coincidences. Surely a man of Sheriff Gillespie’s experience is fully aware of what I’ve explained. It is reasonable to expect that any Sheriff would do his best to benefit his organization. However, such benefit can never come at the expense of the public and of the law and that is what appears to be happening here.

There is, however, something that Sheriff Gillespie can do at any time to begin to rebuild, little by little, public confidence. In the death by taser case of Anthony Jones currently awaiting an inquest, Metro officers Mark Hatten and Timothy English have been suspended (with pay), and reportedly have refused to cooperate with investigators. There is some indication that they have cooperated in a limited fashion, perhaps by making some brief initial statement to first line supervisors or perhaps by writing some sort or report, but news accounts have not been sufficiently specific on those issues to know with certainty. If these officers are refusing to cooperate, as their union is currently demanding, and as has been reported, Sheriff Gillespie can and should charge them with insubordination--as state law specifically authorizes--and begin proceedings to fire them. If the Sheriff is truly concerned with public welfare and upholding the law, he can and should do no less.

The most simple and effective way of dealing with all of these issues, a way that would immediately begin to restore public confidence in the Las Vegas criminal justice system is to allow private attorneys to represent--without restraint or limitation before or after the inquest--families of victims in inquests. For indigent families, public defenders or other attorneys should be appointed. However, as I’ve pointed out in this update, this appears to be the last thing Sheriff Gillespie, and his supporters, want.

Ultimately, each reader will have to decide whether the likely outcomes of the inquest changes are merely the unintended consequences of good intentions, or whether they reveal, on the part of Sheriff Gillespie and others, a very different kind of intent.

SCOTT FAMILY STATEMENT: The family of Erik Scott has issued a press release to the Las Vegas media. The media has reproduced only a portion of the release in the stories linked at the beginning of this update, so as a public service, I reproduce the press release, in its entirety, here:

“The stated PPA [Las Vegas Metro Police Protective Association] policy of having law enforcement union members refuse to cooperate with investigations of officer-involved shootings and other potential abuses of police power invokes the image of a grade-school playground bully demanding that only his version of the fight be related to the principal, or the bully and his gang will refuse to cooperate at all. If that’s the way Southern Nevada police officers choose to behave, so be it. That’s perfectly fine with us and other victims’ families.

Such petulant, childish refusals to cooperate with already-questionable internal investigations may finally stimulate two backlash responses from incensed citizens and lawmakers:

• Institute a system whereby ALL officer-involved shootings that result in death must be investigated by an outside agency, ideally a U.S. Justice Department version of the National Transportation Safety Board. This federal body will have the authority to solicit testimony from any person involved in the shooting, including all officers involved.

• Pass a Nevada law similar to California Government Code 3300-3311, the “California Peace Officers Bill of Rights.” Under this statute, California police officers can elect to not cooperate with an investigation of potential police misdeeds, but, in making that choice, risk being charged with insubordination and subsequent dismissal. Officers have the right to invoke their Fifth Amendment right to remain silent, but may lose their job, if warranted.

Las Vegas-area police unions are accustomed to having complete control of homicide investigations involving officers for so long that they cannot conceive of being held accountable for their actions, under the new coroner’s inquest ordinance. But in refusing to cooperate, those unions are prompting even more outrage and wrath from their employers, the citizens who pay police salaries. When will the unions realize that those halcyon days of Southern Nevada cops doing whatever they please—and getting away with it—are over?”

Posted by MikeM at January 5, 2011 08:12 PM

Yes, exercise of the Fifth Amendment right against self incrimination cannot be taken as EVIDENCE of commission of a crime.

But, how can someone called to testify as a witness 'take the fifth' without at least implicating himself in a possible crime?

If a witness - i.e. someone not otherwise suspected of committing a crime - attempts to assert their Fifth Amendment rights cannot the judge demand some sort of substantiation (presumably off the record) for this action? And yes, of course, any such information offered to the judge could then not be used as the basis for a criminal prosecution.

But it certainly would be 'evidence' in the court of public opinion that LV law enforcement is engaged in a cover-up.

Otherwise, if any witness can simply refuse to cooperate under the guise of the Fifth Amendment wouldn't this tactic render every subpoena effectively useless?

Of course, there is always the option of granting the witnesses immunity and COMPELLING their full and honest testimony. I can understand the court's desire to avoid this if at all possible.

But - push come to shove - it NEEDS to be done, and if it does come to that it can ONLY be taken as further evidence in the court of public opinion that LV law enforcement has something to hide.

Posted by: ThomasD at January 6, 2011 01:36 AM