Kim

Gardner, Circuit Attorney, City of St. Louis

October 3, 2017
Board of Aldermen, Public Safety Committee

Thank you, Chairman Kennedy for the opportunity to address the public safety committee and
discuss the issues of officer-involved shootings.

I believe we are at a crossroads in our citys and nations histories.

Prosecutors, mayors, police chiefs and community leaders like you across the nation are trying
to determine how to best to investigate these issues in a manner that is fair and impartial
that promotes confidence in the criminal justice system, when so many people, especially
people of color, feel the system is rigged against them.

Public trust is a vital element for our criminal justice system to work effectively. This trust
determines if the community will report crime, assist in holding wrong doers accountable, and
have confidence in our courts outcomes. Assuring a fair and impartial process for officer-
involved shootings is central to establishing that trust.

I will to give you an overview of the process of investigating officer-involved shootings and how
it has evolved over the last several years.

Prior to August of 2014, the SLMPD Internal Affairs and Homicide units investigated officer-
involved shootings. The police alone determined if they themselves, violated the law. They
rarely asked prosecutors for a review, and when they did, they didnt recommend charges or
bring proper evidence for prosecution.

More often than not, you and your constituents were unaware of these incidents. Sometimes
these events wouldnt even hit your radar screen unless there was a financial settlement from
the city to a family of someone killed or injured by police.

In 2014, under former Chief Sam Dotson, the SLMPD launched the Force Investigation Unit.
This unit is charged with investigating officer-involved shootings to determine if any Missouri
criminal laws have been violated by a police officer in a shooting incident in which someone is
injured or killed. When a suspect is shot, the FIU is called by officers on the scene and the
FIU assumes control of the investigation.

These investigations have taken several months or in many cases - years to complete.

In 2014, after Kajeem Powell was shot and killed, then Circuit Attorney Jennifer Joyce
agreed to review the police departments investigation when they were finished.

There were two officer-involved shootings from August through the end of 2014 that were sent
to the Circuit Attorneys office.

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In response to the length of time these investigations were taking and when Mansur Ball Bay
was shot in August 2015, Circuit Attorney Joyce announced she would begin a parallel
investigation to help speed up the process. In 2015, there were five officer-involved shootings
under review by the Circuit Attorneys office. As a result, Ms. Joyce asked the city for additional
money and people to investigate these matters. She only received one additional
attorney. That was it.

In 2016, there were eight more officer-involved shootings under review in our office, and police
brought over the Anthony Lamar Smith case for review. That made for 16 cases in our office in
two years.

Ms. Joyce released her findings in four shootings, and the result was that no charges would be
filled in those cases.

Ive been Circuit Attorney for nine months, and we have had 14. Since then, there has been at
least one officer-involved shooting on average, every three weeks. Now we have a total of 25
open cases in our office. From two, to eight, to 16 to 25. Ive watched the current system
operate. Right now, the process we are using isnt working.

As honorable and ambitious as it was to think this office could conduct a parallel and
independent investigation of officer-involved shootings, with the resources then and now, it is
not possible.

Its also not possible when the police are the lead investigators in these incidents.

Here are some of the challenges we have faced in both the previous administration and in
mine:

The SLMPD leading the criminal investigation into the conduct of its own employees is
concerning. It is not the best practice to have a criminal investigation conducted by those
subject to the investigation.

The Force Investigation Units current practices lack objectivity and common-sense principles
that such an investigation requires.

Currently, officers are given two sleep cycles before they are officially interviewed by FIU on
the incident that occurred. Last week, Major Warnecke spoke before this committee and
cited studies that proved this to be the best way to get real information from officers. What do
you think it would to do our ability to solve crimes if we gave every suspect two sleep cycles
before we interviewed them in a homicide or armed robbery case? How about a domestic
violence or child sex abuse case? The research Ive seen contradicts this practice.

The FIU officers are also spending too much effort protecting officers as opposed to
searching for the objective truth.

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For example, a few months ago, we had an officer in the warrant office who was involved in an
OIS case. He was there with a member of the FIU and they were applying for charges on a
suspect who was involved in the incident. When interviewed by one of my prosecutors, the
officer tried to truthfully answer questions about the details of the incident, and the FIU
officer kept interrupting and would not let the police officer answer the questions. Despite the
police officers desire to share the truth with us so we could file charges against the suspect,
the FIU officer wouldnt permit it. One of the FIU officers actually said that it was his duty to
protect his fellow officers.

This example leads to another serious issue for us. Officers are discouraged from cooperating
with the prosecutions of suspects involved in OIS cases. When called to grand jury to testify in
a case against a suspect who has been charged in an OISthese officers are pleading the 5th,
and refusing to cooperate, which prevents us from pursuing charges against some dangerous
people. This puts both the community and other police officers in danger because its virtually
impossible to prosecute a case like this without the cooperation of the involved officer.

The cooperation between agencies is not what it should be.

FIU only brings evidence, reports and information over to our office if specifically asked
by us. There are cases from 2015 and 2016 that we still dont have, many of which have been
closed by the police.

Unlike most cases we prosecute, when police reports are finished and evidence is processed,
police send those to the prosecutors as a matter of routine. Not in these cases. Few things are
sent over to us without the constant follow up of our investigators to provide this important
evidence. Actually, the police can decide what they send and when they send it. In some cases,
we have no way of knowing if we have everything.

To date this year, we havent received even one completed FIU report that summarizes their
findings. Not one.

Ive been told by police union attorneys and representatives, that they do not think they can
get a fair shake or unbiased review of these cases. That simply is not true. The review process
is fair for everyone else. Why is the process not fair when a police officer is subjected to the
same review process?

What evidence do they have that illustrates police officers cant get an objective review? If
officers are telling the truth, they have nothing to fear.

I asked the question: Do you think officers should be treated differently? I was told by police
union representatives and defense counsel: Yes.

Im pleading with you. No one is above the law. We have to create a process that reflects that.

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Im proposing this.

We create and Independent Investigation Bureau - a new unit within my office solely dedicated
with charging cases of police use of force, officer involved shootings and issues of conviction
integrity.

- The CAO leads the investigation and is in charge of all OIS scenes

- My office conducts all interviews of involved officers

- Internal Affairs investigation is suspended while the CAO is conducting our investigation

- CAO gathers evidence and directs SLMPD ancillary to the process evidence like labs
and etu, etc.

- We need dedicated resources including four prosecutors, five investigators and two
support staff to create this unit

- We will isolate this team from interfacing with SLMPD on general criminal cases to
ensure objectivity and so the public can be assured that prosecutors are not too close to
police.

- SLMPD officers cooperate with prosecution of suspects involved in OIS cases

- First to scene officers should be directed by my Investigative bureau at the scene and to
bring cases to my office for review rather than FIU officers

- Police officer association: has no influence over how the investigation is conducted,
and should be restricted to representation of individual clients

- CAO identifies potential issues

- Ensure officers constitutional rights are protected

Officer-involved shootings are very difficult to prove, even with the best evidence. But we have
an obligation to this community to hold police to a higher standard. And when an officer
shoots someone whether legal or otherwise, the public deserves to know about it. Both the
community and police deserve an objective, fair and transparent investigation, and it is no
longer acceptable for police to be essentially investigating themselves.

The time is now to make the change. I am the only elected official whose sole responsibility is
to keep the public safe.

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It is the duty of the local prosecutor to ensure that a complete, independent and fair
investigation is conducted.

It is the duty of the local prosecutor to review evidence and bring charges when appropriate. To
do this, I must have a fair and independent investigation.

State and federal authorities only respond in rare and exceptional instances and cannot be
relied upon as our local control option.

Justice isnt getting the outcome the police or the public may want. Justice is pursuing the
facts and the evidence and the law. Justice is making sure the process is working for everyone.

Im asking for your support to help me secure the legal authority and resources needed to
swiftly and fairly investigate these cases. I know there are better ways we can do this if we join
together to make the system work for us all.