I’ll Have What She’s Having

I have spent a lot of the last 18 years at the Kentucky General Assembly.  The first 11 years were as the Kentucky Public Advocate, where I lobbied for the public defender budget, indigent defense reform, and against draconian bills.  I have been doing much the same thing as the legislative agent for the Kentucky Association of Criminal Defense Lawyers. 

One of the bills that comes up each session is a bill ensuring and expanding the rights of police officers.  This year that bill is HB 333.  It passed the House 96-0 recently and is on to the Senate, where I suspect it will receive a friendly reception.  It amends many of the provisions of KRS 15.520.

KRS 15.520 as amended sets out the rights of police officers in Kentucky when they are accused by citizens of violations of law enforcement police as well as accusations of criminal activity.  Several of their “rights” under the statute caught my eye.  First, “no police officer shall be subjected to interrogation for alleged conduct that violates law enforcement procedures[in a departmental matter involving] alleged misconduct on his or her part], until forty-eight (48) hours have expired from the time the request for interrogation is made to the accused officer, in writing. The notice of interrogation shall include a statement regarding any reason for the interrogation and shall be served on the officer by certified mail, return receipt requested, or by personal delivery.”  The interrogation must be done while the officer is one duty.  No statements may be made about the affair until final disposition.  The officer must be given 12 days written notice of any hearing.  If the citizen complaining about the officer doesn’t show up at the hearing, the charges against the officer must be dismissed with prejudice.  If the hearing is not heard within 75 days, the charges must be dismissed with prejudice.  An officer suspected of a crime cannot be threatened or coerced.  The officer cannot be compelled to speak in order to maintain his employment.

Reading through this statute made my drift to Ferguson, and to the hours after Michael Brown was shot.  Darren Wilson was not arrested as Michael Brown lay on the pavement for 4 hours.  Wilson was not handcuffed and taken to a station and interrogated.  He was taken to a hospital for possible treatment.  He was not ever questioned with or without an attorney.  He did not write out a statement.  Instead, he was allowed to consult with an attorney and give his first statement when questioned in a friendly manner by a prosecutor at the grand jury.  He resigned on his own terms after the grand jury made its decision.

You cannot blame police officers for wanting a significant bill of rights.  But isn’t it time that citizens in our society were treated the same way?  Our clients are taken off the street, or out of their homes in the middle of the night.  Some of them are taken to places akin to the CIA’s “black sites”.  They are questioned for hours, often by officers using the Reid techniques.  They are lied to about what evidence is against them.  They do not have 48 hours to get ready for the interrogation.  They do not see in writing the accusations against them before the interrogation begins.   Their employment schedule is not accommodated for the interrogation.  Often they lose their jobs and their apartments during the first days after their arrests.  If they fail to speak during the interrogation, their silence can sometimes be used against them.  If witnesses against them do not show up, usually the hearing is rescheduled, rather than being dismissed with prejudice. 
Due process and fair procedure are important elements of our rights.  They should apply to all, police officer and citizen accused.