Why one north Mississippi D.A. thinks special prosecutors hold the key in police shootings

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Garrett Wilber, Flickr Commons

A police officer's service weapon

When Ricky Ball, a black man pulled over by three Columbus police officers in 2015, was fatally shot by a cop during that traffic stop, Lowndes County was two-and-a-half weeks away from electing a new district attorney.

Days after new D.A. Scott Colom took office, community organizers delivered a petition bearing nearly 1,200 signatures to his desk, calling for a grand jury to look into Ball’s death. But Colom chose not to present the case to the grand jury. Instead, he recused himself, effectively handing the case off to Attorney General Jim Hood’s office — a controversial decision at the time.

16th Circuit Court website

Scott Colom, the district attorney for Columbus and surrounding counties

“There were some people who claimed to have voted for me and felt like I was selling them out by not prosecuting it myself,” Colom said in an interview with Mississippi Today. “To me, these types of statements were exactly why I had to recuse myself. I’m not a D.A. that’s worthy of your vote if you voted for me to indict a particular person.”

Colom is one of few prosecutors across the country with an explicit policy to appoint an independent prosecutor in all cases where law enforcement officers shoot civilians, commonly known as officer-involved shootings. It’s a policy that has “a really good implication for police accountability,” said Kami Chavis, director of the criminal justice program at the Wake Forest University School of Law.

“It’s more of an exception than the rule,” Chavis said.

In light of the 2014 deaths of Michael Brown in Ferguson, Mo., and Eric Garner in New York City by police officers in each of those cities — neither of which led to indictments for the officers involved — criminal justice advocates have honed in on measures to improve police accountability. Recently, the St. Louis County prosecutor who investigated the Brown shooting, Bob McCulloch, was unseated by reform challenger Wesley Bell, who has said he will appoint special prosecutors in all police misconduct cases.

Backed by a political action committee funded by the billionaire George Soros, Colom ran on a similar reform platform against longtime incumbent Forrest Allgood. And since Colom took office, he has passed three officer-involved shooting cases on to the attorney general’s office. Of those three, two have resulted in grand jury indictments, Colom pointed out.

The officer in the Ricky Ball case, Canyon Boykin, was indicted in September 2016 and now awaits trial for manslaughter. In July, an Oktibbeha County grand jury indicted former Starkville police officer Gary Wheeler for aggravated assault after he shot into a vehicle and struck a civilian in the legs and stomach. A third officer-involved shooting case in Lowndes County resulted in no indictment when presented to the grand jury, Hood’s office confirmed.

Justice for Ricky Ball Facebook page

Ricky Ball, pictured with his daughter, was shot and killed in Columbus, Miss., by police officer Canyon Boykin in October 2015.

Colom says his policy is predicated on a couple of assumptions. In a fairly rural district like his, his five-prosecutor team can’t help but work closely with law enforcement officials. And to his constituents, he can’t possibly prosecute an officer-involved shooting fairly, regardless of how the case goes, he said.

“I know that the appearance, to the public, of independence is just as important as the reality of independence,” Colom said.

Such a policy can help a prosecutor appear legitimate in the communities he or she serves, Chavis, the law professor, noted.

“Let’s imagine for a minute that a local D.A. is unbiased,” said Kate Levine, an assistant professor of law at St. John’s University. “But even if she is, the relationship between her office and the police department (makes) it impossible for the public to see her as unbiased because the prosecutors need the police to make every single one of their other cases, and the police lobby is so powerful with prosecutors.”

While there are other workarounds to the problem of prosecutorial bias or perceived bias in district attorneys, such as civilian oversight boards or federal prosecutors, attorneys’ general offices are in theory often, Levine adds, “far less conflicted” than local prosecutors but still politically accountable to voters in the state. But in practice, Levine said: “Frankly, pun intended, I think the jury’s still out on whether that’s changed things or [increased] confidence in the system.”

That’s in part because on a national level, comprehensive data for police shootings and any subsequent legal actions are hard to come by, as no federal database for such incidents exists. In Mississippi, the state’s Bureau of Investigations investigates these shootings at the request of other officials, Department of Public Safety spokesperson Warren Strain said, but no law requires that they conduct such reviews uniformly across the state.

The Mississippi Prosecutors Association has no official position on whether or not district attorneys should recuse themselves in officer-involved shooting incidents, according to John Herzog, an assistant D.A. in Greenville and the association’s president.

The decision rests solely in the hands of the state’s 22 elected district attorneys, Herzog said.

“I can say that most District Attorneys believe that an independent agency should investigate the cases and present the findings to the grand jury,” Herzog wrote in an email.

Gabriel Austin, Mississippi Today

Attorney General Jim Hood

Though state law does not mandate the attorney general’s office take on cases that a district attorney cannot, Hood’s office has not refused any local D.A.s who have brought cases to the office due to a conflict of interest, according to spokesperson Margaret Ann Morgan.

Morgan said that in 2014, the office also received a 2015 case in Pike County before a judge reassigned the case to the Copiah County district attorney. And in 2014, the attorney general’s office prosecuted a manslaughter case against a former Bolivar County sheriff’s deputy, Walter Grant, after a request for assistance from the Bolivar County D.A.

That case, in which Grant was accused of shooting a man in the back of the head following a chase, resulted in two mistrials and was handed over in 2015 to the Federal Bureau of Investigation. Grant now faces a federal charge for planting a weapon at a crime scene to justify a fatal shooting.

One district attorney who has never asked the Attorney General’s office to take on an officer-involved shooting case is Hinds County’s Robert Shuler Smith, whose jurisdiction has seen a slew of such shootings in a little over a year. (In 2015, Soros’ Mississippi Safety and Justice PAC backed only two races in the state: Colom’s, and Smith’s re-election campaign.)

Eric J. Shelton, Mississippi Today/ Report for America

Jackson Mayor Chokwe Antar Lumumba speaks to media after announcing that veteran officer James Davis has been named Jackson Police Department’s new interim police chief during a press conference at City Hall Thursday, June 28, 2018.

This spring, Jackson’s city council voted to officially hand all officer-involved shooting investigations to MBI, and Mayor Chokwe A. Lumumba has since established a task force which is now drafting policy recommendations for what information the city releases following an officer-involved shooting, including the name of the officer. Smith told attendees at one task force meeting that in his decade-long tenure as D.A., he did not remember any officers ever being indicted for an officer-involved shooting, the Jackson Free Press reported in JuneSmith did not respond to multiple requests for comment from Mississippi Today.

Of course, indictments and convictions don’t necessarily equate to justice, experts say. But police shootings, which disproportionately affect people of color, rarely lead to the prosecutions and convictions of officers.

In recent years, lawmakers in several states, including Missouri and New Jersey, have introduced legislation requiring special prosecutors in officer-involved shootings or deaths. New York Gov. Andrew Cuomo signed an executive order in 2015 appointing the state’s attorney general as special prosecutor in some cases of civilian deaths involving police officers.

Mississippi House of Representatives

State Rep. Jeramey Anderson, D-Moss Point

Mississippi Senate

Sen. Juan Barnett, D-Heidelberg

Two bills, one by Rep. Jeramey Anderson, D-Moss Point, in 2017 and the other by Sen. Juan Barnett, D-Heidelberg, in 2018 called for the Mississippi Bureau of Investigations to look into all officer-involved deaths and for the attorney general’s office to handle all such prosecutions. Both bills died in committee.

Although the state Association of Chiefs of Police has no position on such a policy, its director Ken Winter, said that D.A.s are elected to do their jobs and shouldn’t “cherry pick” cases, but understands why a district attorney might see a conflict of interest given the amount of time they spend with officers. More important is that the investigation itself is conducted objectively by a third party, Winter added.

“We just want honesty and objectivity,” Winter, who has also served as Indianola’s police chief, said. “That’s it. It doesn’t make any difference who does it.”