Opinion: How not to investigate a fatal police shooting

By Howard D. Popper

Early on the morning of Nov. 26, 2006, Sean Bell left a Queens nightclub where he had been celebrating his marriage, scheduled for later that day. While sitting in his car and unarmed, Bell was killed and two of his friends were seriously wounded in a hail of 50 police bullets.

The New York Police Department and the Queens district attorney completed their investigation within four months, and three detectives were indicted. Seventeen months after the shooting, a jury acquitted them.

A Philadelphia shooting has been handled very differently. Early on the morning of Jan. 1, 2008, Abebe Isaac, a father of three with no criminal record, was at a New Year's Eve house party in Philadelphia. As he sat on the stairs inside the house with his girlfriend's young son, he was shot multiple times and fatally wounded. The gunfire came from a police officer who claims he was aiming at a man who had fled into the house after firing celebratory shots into the air.

The police investigation of the Isaac case was essentially completed by March 2008. Then it dropped into the abyss that is the Philadelphia District Attorney's Office, where it remains. In about a month from now, some of the potentially relevant offenses will not be chargeable under the statute of limitations.

Philadelphia's system for investigating police officers, and particularly police-involved shootings, is broken. Much of the problem can be blamed on an unnecessarily cumbersome process and the district attorney's stranglehold on it.

Whenever a Philadelphia officer discharges a firearm, a supervisor must respond to the scene, secure the officer's gun, and transport the officer to police Internal Affairs. Except for a brief conversation with the supervisor on the scene to enable the police to secure evidence, the officer is not interviewed.

A special Internal Affairs "shooting team" then proceeds to conduct its entire investigation without interviewing the officer. The results are referred to the District Attorney's Office, which reviews them and decides whether to prosecute. Only a decision not to prosecute clears the way for the officer to be interviewed by Internal Affairs and for the department's disciplinary process to proceed.

District Attorney Lynne Abraham has been quoted as asserting that the Police Department cannot interview the officer involved until her office decides not to prosecute. But this is only because she and the police have maintained that practice.

Abraham is likely relying on the Supreme Court's 1967 decision in Garrity v. New Jersey, which held that public employees can't be compelled to waive their right not to incriminate themselves. But the courts have also ruled that a public agency may compel an employee to answer questions about his duties if he's advised that the answers can't be used against him in criminal proceedings.

After referring its findings to the district attorney, Internal Affairs should interview the officer involved. The officer should be assured that his answers cannot be used in criminal proceedings, but warned that failure to answer will result in dismissal.

Such a procedure - which is used in other departments, including some near Philadelphia - would enable the district attorney to review the case for prosecution with a complete, constitutionally correct internal investigation, while leaving the Police Department free to address the officer's conduct separately as a disciplinary matter - without the unconscionable delay of waiting for the district attorney to clear the officer to be interviewed.

In addition to changing the process, officials need to eliminate the long delays. In virtually every other shooting by a known person, the police investigation moves quickly, and the district attorney's decision on whether to charge is equally rapid - often within hours and rarely in more than a few weeks. Certainly the time frame is nothing like the many months or even years seen in the resolution of Internal Affairs investigations, including those of police-involved shootings.

There is no reason the same priority cannot be given to police-involved shootings or allegations of serious police misconduct, ensuring timely resolutions either by prosecutions or disciplinary proceedings.

Abraham has expressed concern for victims, but her office's long delays denigrate the rights of victims like Isaac and his young children. Swift, sure, professional investigations of such cases are essential to public confidence in the district attorney and the police.

Police officers also deserve a speedy process so they can return to the street and their duties, free of any cloud, when there is no finding of misconduct.

Along with other city officials, District Attorney-elect Seth Williams should move swiftly to revamp the city's process for investigating allegations of police misconduct, particularly shootings. They can start by eliminating the bottleneck in the District Attorney's Office.