Betrayal in Black

by Mark M Bello

  “This expert witness will then apply those standards to this case and opine whether or not Officer Jones acted reasonably under the existing circumstances. With these preliminaries out of the way, do any of you have any questions before we begin?”

  Lynch pauses and waits on the jury.

  “No questions? Let’s begin with dash cam and iPhone video. They’ve been marked as Exhibit Numbers One and Two, respectively. We will follow this with Officer Jones’s statement to Lieutenant Douglas Kelly from the Cedar Ridge Police, Internal Affairs Division, Exhibit number three. You will each be provided with a transcript of the statement so you can follow along. After the statement is presented, we will hear from Lieutenant Kelly in person. Will someone dim the lights, please?”

  The lights dim as a computer and video projector are placed front and center. A portable white screen is erected in front of the jurors.

  A technician plays the two videos. The lights come back on, and the technician plays the audiotape. The entire presentation lasts an hour and a half. Lynch studies the jury during the audio presentation. Jurors are engaged, reading the transcript as the tape rolls along, and flipping pages as the audio reaches the end of each page. When the audio ends, Lynch calls Lieutenant Kelly to the stand.

  “Would you state your full name and spell it for the court reporter, please?” Lynch begins.

  “My name is Douglas Kelly.”

  “Where are you employed?”

  “Cedar Ridge Police Department, Internal Affairs Division.”

  “And how long have you been a police officer?”

  “Thirty-eight years.”

  “Have you spent the entire thirty-eight years in Cedar Ridge?”

  “Yes, ma’am.”

  “Where did you receive your training to become a police officer?”

  “I attended Wayne County Community College and obtained a two-year certificate in criminal justice. Then, I attended the Downriver Police Academy and graduated in 1980. While I was working as a patrol officer during the day, I finished my studies with a Bachelor’s in Criminal Justice at Wayne State University. Afterward, I attended law school at Detroit College of Law, graduating in 1990. I was promoted to the detective squad, where I worked for fifteen years. In 2005, I was transferred to Internal Affairs as a senior investigator and promoted to lieutenant until I was named Director of Internal Affairs in 2012.”

  “Impressive resume, lieutenant. Is it unusual for you to be conducting these types of interviews at this stage in your career?”

  “Chief Brooks requires my direct involvement when there is an officer-involved shooting.”

  “Internal Affairs is the branch of the police department that investigates the misconduct of police officers; is that a fair statement?”

  “It is.”

  “You are not a squad commander or anything like that? You do not directly supervise patrol officers, right?”

  “Correct.”

  “How did you become involved in this case?”

  “Cedar Ridge chief of police Warren Brooks assembled a task force to look into the matter. That task force included Officer Jones’s squad commander, Richard Farnsworth, as well as other elite members of the department. “

  “And did the task force conduct an investigation?”

  “It did.”

  “Did it publish findings?”

  “It did.”

  “Lieutenant, I want you to look at what has been marked as GJ Exhibit number four. Do you recognize this document?”

  “I do. It’s the task force’s final report.”

  “Are you one of the signatories on the report?”

  “I am.”

  “Please review the report and confirm for the jury that it is the full report of the task force.”

  Kelly calmly and casually flips through the pages. When he finishes, he remarks, “This is the full report with all official signatures at the bottom.”

  “You were present during the audio presentation of Officer Jones’s Internal Affairs interview, were you not?”

  “I was.”

  “Did the jury hear a full and accurate presentation of the interview you conducted?”

  “Yes.”

  “Was this the only formal interview conducted with Officer Jones?”

  “Yes. Jones also made a brief statement to Officer Mickler at the scene, and that statement is part of the record, as is Officer Mickler’s account.”

  “Before we admit the report into evidence, please explain the concept of qualified immunity as it applies to officer-involved shootings.”

  “Sure. If an incident occurs on duty, as it did in this case, an officer receives the benefit of qualified immunity. Simply stated, a police officer is permitted to use deadly force in many more situations than civilians are. Since an officer is trained to use a firearm, and if he or she discharges a weapon while on duty, the officer is presumed to have used it for a lawful purpose.

  “In investigating this matter, Officer Jones is not only presumed innocent, a constitutional right that all citizens enjoy, he is also presumed to have acted lawfully, in his capacity as a police officer. What person—”

  Lynch interrupts Kelly, turning to the jury.

  “Ladies and gentlemen, you will be specifically instructed on the details of this qualified immunity standard toward the end of these proceedings. Sorry for interrupting you, lieutenant. Please continue.”

  “No problem. I was going to explain the standard this way: Who would become a police officer if they were subject to arrest and prosecution every time they discharged their weapon? That’s why we try to give an officer every benefit of the doubt.”

  “Move to admit exhibit number four.”

  “I won’t ask you to regurgitate all of its contents. I believe this report speaks for itself, in volumes. However, I will ask you to publish the task force’s final conclusions.”

  “The task force concluded that Officer Jones acted without justifiable cause. We have suspended him from active duty and are currently negotiating his permanent departure from the Cedar Ridge Police Department.”

  “Is your investigation a criminal or administrative investigation or both?”

  “Both. We primarily function as an administrative body, determining an officer’s fitness for service. However, if our investigation reveals what we consider to be criminal wrongdoing, we publish our findings and refer those findings to your office for consideration of criminal charges.”

  “The Wayne County Prosecutor’s Office, correct?”

  “Correct.”

  “And have you referred this case to the Wayne County Prosecutor’s Office?”

  “Yes.”

  “Despite the qualified immunity that applies to police officers, your report concluded that Officer Jones might have committed a crime, is that correct?”

  “Yes.”

  “What crime would that be?”

  “That is for you to decide.”

  “I understand, lieutenant, but you referred the case. What crime does Internal Affairs believe occurred during this incident?”

  “My review of the tapes and the results of Officer Jones’s interview suggest Officer Jones is guilty of second-degree murder or perhaps the lesser crime of voluntary manslaughter.

  “However, whether a crime was committed and the degree of criminality that applies is decided by your office or by this grand jury, not by the police.”

  “Please define second-degree murder for the grand jury.”

  “Second-degree murder is an unplanned intentional killing or a death caused by a reckless disregard for human life. My review of the evidence suggests the second definition applies to this case.”

  “And an explanation or definition of voluntary manslaughter?”

  “Voluntary manslaughter is an intentional killing where the offender had no prior intent to kill. It is often referred to as a killing that occurs in the heat of passion. The circumstances leading up to the killing would be such that a reason
able person might become emotionally or mentally disturbed at the moment of the act that results in death.”

  “That definition sounds more ‘heat of passion,’ correct?”

  “Correct. A case might be made that Jones’s irrational fear that Mr. Hayes was reaching for a gun was the ‘heat of passion’ that triggered his behavior in this case. If this jury agrees, then voluntary manslaughter will be an appropriate finding.”

  “Any other possibilities?”

  “Sure. If Officer Jones can convince the jury that he saw Mr. Hayes pulling a gun and rationally feared that Hayes was about to shoot him, his conduct could be considered reasonable and a righteous kill or justifiable homicide.”

  “Do you believe the evidence supports that finding?”

  “No.”

  “Did your investigation include a look at Officer Jones’s prior record?”

  “It did.”

  “Is there anything in his prior record you consider relevant to the inquiry and to your conclusion that the officer’s conduct should be referred for charges?”

  “Yes.”

  “Please describe these considerations for this jury.”

  “The jury may recall from his formal statement that Jones graphically describes a previous similar incident.”

  “Please refresh our memories lieutenant.”

  “I questioned Officer Jones about previous, similar incidents.”

  “And what did he tell you?”

  “He indicated he’d been involved in a similar incident involving a traffic stop.”

  “Please tell the jury what happened.”

  “In a similar situation, Officer Jones pulled over a vehicle when no traffic violation was committed and no equipment issues were noted. When I queried Jones about why he pulled the driver over, he told me there had been a B & E in the neighborhood. He and his partner thought this might be the perpetrator.

  “I inquired whether there had been a working description of the perpetrator on that occasion. He told me, ‘no.’ I wondered what made him suspicious enough to pull the guy over. He said the guy seemed ‘out of place.’ Those were his exact words.

  “What did that mean? He told me the driver did not fit the profile of any resident in the community. Finally, I asked Jones if the driver was white or black. He indicated the man was black.

  “It is apparent that Officer Jones has some issues with black men driving in the city limits. Jones feels that black men in Cedar Ridge are ‘out of place.’”

  “What is known on the street as driving while black?”

  “In my opinion, yes.”

  “Thank you, lieutenant. We may recall you at a later date. Do any of the jurors have any questions?”

  No questions. Kelly steps down; Lynch calls Officer Alex Mickler to the stand.

  Lynch establishes Mickler’s professional qualifications and replays the call between Mickler and Jones.

  She displays the portion of the dash cam video from the time of Mickler’s arrival at the scene. The video concludes, and Lynch approaches the witness.

  “Officer Mickler, do the video and audio accurately depict the scene as you arrived?”

  “Yes, ma’am, they do.”

  “Officer Jones called you to provide back up for his traffic stop of Mr. Hayes, is that correct?”

  “Yes, it is. But I was tied up with another situation, waiting for a key holder on a breaking and entering situation. Officer Jones’s traffic stop was not an emergency. I told him that I would be there as soon as I could.”

  “His call for backup expressed no urgency?”

  “No, it didn’t. In retrospect, I’m sorry it didn’t because my other call was really no big deal.”

  “This non-urgent transmission came on your mobile walkie-talkie?”

  “Yes, ma’am.”

  “How much time transpired between the call for backup and the notification that there had been a shooting?”

  “Not long. Between fifteen minutes and half an hour at most.”

  “What did you do when you got the second call?”

  “I jumped in my squad car and raced to the scene, about three-quarters of a mile away from my starting point.”

  “So, you were close to the scene and familiar with the area?”

  “Yes, ma’am. I have spent my entire ten-year career with the Cedar Ridge Police Department.”

  “When you arrived at the scene, what did you see?”

  “I saw Officer Jones standing in the street arguing with someone inside the subject vehicle, the Hayes vehicle, passenger side. The vehicle, a Honda as I recall, was still running with lights on. The driver appeared to be unconscious.”

  “Did you come from the same direction as Officer Jones?”

  “No. I came from the opposite direction. I pulled up alongside his vehicle and left plenty of room between the two cars to block them from view. I wanted to prevent passing traffic from gawking or interfering. I left my flashing lights on, exited my vehicle, and approached the scene.”

  “What happened next?”

  “Jones instructed me to deal with the passenger, who turned out to be a black woman. I inquired whether Randy, uh, Officer Jones, if he had called for an ambulance. He told me that he had not. The driver looked to be in bad shape, so I immediately called for an ambulance.

  “I was surprised an ambulance had not been summoned before my arrival. I suggested to Jones that he allow me to handle things, invited him to take a seat on the curb, and I instructed the woman to exit the vehicle with her hands raised. She kept asking about her children, her ‘babies,’ she called them, and I told her they would be fine as long as she complied with my instructions.”

  “Did she comply?”

  “Yes, she exited and walked to the back of the vehicle, as I instructed. The whole time she was screaming that the ‘bastard,’ referring to Officer Jones, shot her husband in cold blood in front of her and her children. It was difficult, but I managed to place her in handcuffs. She appeared to be in shock.”

  “Why did you need to place her in cuffs?”

  “Because, in my opinion, she was belligerent and somewhat irrational. I felt the situation required more officer control.”

  “What happened next?”

  “I called central, advised them of an officer-involved shooting, and told them to send the cavalry.”

  “The cavalry?”

  “Sorry, it’s an expression. I requisitioned multiple squad cars to secure the scene and told them we needed supervisors. I believe I summoned everyone within earshot of my voice. The passenger kept screaming, ‘he killed my husband! He killed their daddy!’ I urged her to calm down. She calmed slightly and advised that she captured the whole incident on her cell phone.”

  “What did you do next?”

  “Well, the ambulance arrived, and I pointed to the driver and told the attendants he was unconscious. Then I began to question Jones. First, I wondered why he didn’t wait for me before approaching. Jones claimed it seemed routine. He mentioned the kids in the car and the smell of marijuana. He said when he requested the driver’s license and registration, the guy told him he was carrying. And during my questioning of Jones, the woman kept screaming something like ‘he shot him for no damn reason.’”

  “Please explain to the jury what Jones meant when he mentioned ‘he was carrying.’”

  “That means that the driver had a gun in his possession.”

  “Does a citizen usually tell an officer that he is carrying a weapon if he intends to shoot the officer?”

  “No. That would be very unusual.”

  “Please continue.”

  “Jones contends the suspect would not comply with his instructions. He wouldn’t put his hands where Jones could see them, and he wouldn’t tell him where the gun was. The female passenger disputed that account. She claims Officer Jones accused the victim of noncompliance, when he was, in fact, complying. Jones argued that the guy looked like one of the Burger King suspects, was high, and kept
reaching down. I pointed out the two Burger King suspects were both young and male. Randy indicated he couldn’t tell the passenger was female.”

  “Anything else, Officer Mickler?”

  “Yes. I questioned where Randy was standing when the shooting took place. He advised me that he was standing on the driver’s side near the side-view mirror, gun drawn, pointing down at the driver. I inquired whether he ran the plate and what it showed. He indicated he had run the plate and that the vehicle came back as belonging to the driver. The driver lived in Detroit and had no outstanding warrants.”

  “Is that it, Officer Mickler?”

  “In a nutshell.”

  “Do you want to offer the jury your opinion about potential criminality?”

  “No, I wasn’t present at the time of the shooting. I’m confused why he decided to proceed without backup.”

  “Any questions from the jurors?”

  “Yes, I have a question,” Juror Number Eleven raises her hand.

  “Thank you, Number Eleven. What’s your question?”

  Lynch is apprehensive—surprised a juror has a question.

  “You are an experienced patrol officer, correct Officer Mickler?” Number Eleven begins.

  “Yes, ma’am.”

  “Would you have done anything differently than Officer Jones did?”

  Rochelle Lynch smiles and busies herself with paperwork.

  She loves this question.

  “As I indicated previously, it wasn’t my stop, so it’s hard to say. In retrospect, however, a routine stop does not typically have deadly consequences. The plate came back clean; Hayes had no previous record.”

  “Can you elaborate for us, please?”

  “Officer-involved shootings at traffic stops are unusual, but they do happen from time to time. I’ve always thought of Randy Jones as a good officer, but if you requested research on the issue, I’d bet the vast majority of previous officer-involved traffic stop shootings involve suspects with a criminal past.

  “Not so in this case. The victim had no previous record. Other than the fact that he admitted he had a license to carry and a weapon in the vehicle, there was no indication that he posed a threat to Officer Jones.