politics in prosecution when officer shoots homeless man FWD

Tom Boland (wgcp@earthlink.net)
Wed, 29 Apr 1998 13:40:27 -0700 (PDT)


http://www.suntimes.com/output/news1/jury13.htm
FWD  Chicago Sun Times - April 13, 1998

"Consider the case of police officer Gregory Becker, convicted last year of
involuntary manslaughter in the shooting death of a homeless man. The case
was initially presented at a preliminary hearing, where several charges
were dropped. Under pressure from the public, however, then-Cook County
State's Attorney Jack O'Malley presented the case to a grand jury and
secured indictments against Becker on charges of involuntary manslaughter
and armed violence.  Becker was sentenced to 15 years in prison."
 -- excerpt from article below


POLITICS OF PROSECUTION

By John Carpenter,  Chicago Sun Times Staff Reporter


A prosecutor's decision to charge or not to charge is usually a no-brainer,
especially for Cook County assistant state's attorneys armed with grand
juries not known for making a fuss when asked to indict.

But Cook County State's Attorney Dick Devine's choice in the case of
Jeremiah Mearday and the two police officers fired for beating him was
charged with the volatile mixture of politics, justice and common sense.

It also shone a light on one of the most crucial yet often overlooked
moments in our justice system.

The police are at the beginning, and judges and juries are at the end.

But it is the prosecutor who decides, with almost total discretion, whether
to place the case in the often long and difficult stream that flows toward
conviction or acquittal.

It is a decision that can be alternately viewed as tainted by politics and
potentially unjust, or carefully applied with the benefit of practical
experience, and therefore serving justice.

Former Grand Central District officers James Comito and Matthew Thiel were
fired by the Police Board for beating Mearday while they arrested him in
September. Mearday was facing misdemeanor battery charges stemming from
that arrest and his alleged resistance.

The fired officers could have faced more serious battery charges.

But Devine announced Thursday that neither case would proceed because more
than 30 witnesses interviewed, including Mearday, told stories that were
``replete with contradictions,'' Devine said.

``It never even got to a point where you could take it to a grand jury,''
Devine press spokesman Bob Benjamin said.

Former Judge R. Eugene Pincham, who represented several witnesses called
before the Police Board in the Mearday case, said that although he believes
the officers were rightly fired and are guilty of brutality, the decision
not to press criminal charges was correct from a practical standpoint.

``I would think that from the way the boy was beaten, the grand jury may
very well have handed down an indictment,'' he said. ``But convicting them
would have been another story.''

Still, several veteran defense attorneys, many of them former prosecutors,
say it is not unusual for the state to move ahead to a grand jury even when
the case is not clear cut.

``There are so many cases out there with the same amount of doubt as
this,'' said Joseph Cavanaugh, a former assistant Cook County state's
attorney now in private practice. ``And they are going to the grand jury
all the time.''

``It definitely happens,'' said defense attorney Carl Walsh. ``They do go
to the grand jury even when there are conflicting stories.''

A prosecutor has two options in trying to move ahead with a case once an
arrest is made: Present evidence in a preliminary hearing in open court or
go to a grand jury behind closed doors. The system is designed to prevent
charges without merit. So before a trial can start, either a judge must
determine that there is enough evidence to move forward, or a grand jury
must hand down an indictment.

A preliminary hearing is almost a mini-trial in which evidence is presented
and defense attorneys may cross-examine witnesses. Grand jury proceedings,
on the other hand, are open only to prosecutors, making them far more
popular in complicated cases.

``The ones that they consider more serious, they almost always go to the
grand jury, so as not to give the defense an additional opportunity at
discovery,'' Walsh said, referring to the process of collecting evidence
known as ``discovery.''

One former high-level member of the Cook County state's attorney's office
now in private practice said grand juries typically are used in three ways.
They can be used to push a borderline case one way or the other, ``if
you've got a reluctant witness or you're trying to shake a case loose,''
said the attorney, who asked that his name not be used.

Prosecutors might also use them as a way to allow ``the community'' to make
a decision, such as in the case of a mercy killing--a distraught father
taking a child off a respirator, for example--where a person technically
violated the law but where a jury of peers might choose not to indict.

But by far the most popular reason for the grand jury is to cross-examine
witnesses, the attorney said.

Pincham and other lawyers take a slightly different view, saying the grand
jury is too often an extension of the prosecutor's office.

``The grand jury,'' Pincham said, ``is nothing but a rubber stamp for the
prosecutors.''

Consider the case of police officer Gregory Becker, convicted last year of
involuntary manslaughter in the shooting death of a homeless man. The case
was initially presented at a preliminary hearing, where several charges
were dropped. Under pressure from the public, however then-Cook County
State's Attorney Jack O'Malley presented the case to a grand jury and
secured indictments against Becker on charges of involuntary manslaughter
and armed violence.

Becker was sentenced to 15 years in prison.

But Benjamin said that in the Mearday case there was too much conflicting
evidence. Mearday's testimony was contradicted by others, including one
woman who admitted that friends of Mearday's told her what to say even
though she did not see the arrest, Devine said.

Benjamin also said that whether some like it or not, police officers ``are
different under the law''--given certain powers in order to keep the peace,
making cases tough to win.

Meanwhile, the officers invoked their right not to incriminate themselves
and declined to talk to prosecutors about the Mearday case, leaving the
charges against him unwinnable.

It would have been theoretically possible to move ahead with both cases. As
a practical matter, most agree this would not have worked. Asking accused
and accusors to trade roles simply would not work.

``Common sense has to enter into it,'' one former prosecutor said.

Whether it did in this matter depends, of course, entirely on whom you ask.

END FORWARD

HOMELESS PEOPLE'S NETWORK  <http://aspin.asu.edu/hpn/>  Home Page
ARCHIVES  <http://aspin.asu.edu/hpn/archives.html>  read posts to HPN
TO JOIN  <http://aspin.asu.edu/hpn/join.html> or email Tom <wgcp@earthlink.net>