This week, Dane County District Attorney Ismael Ozanne-- a classmate of mine at the University of Wisconsin Law School -- let down the public trust in him, and his office, when he both failed to charge Officer Matt Kenny with murder for the shooting Tony Robinson. Ozanne did not explain why he decided what he did about discrepancies in the evidence and questions about Kenny's actual state of mind, and he also failed to adequately explain why he, and not a jury, should be allowed to determine the truth of what happened the night Kenny shot Tony in the chest seven times in three seconds.
Here is the dashboard video from Matt Kenny's police car, at the tail end of him shooting unarmed Tony Robinson seven times in the chest in three seconds:
The first shots are fired 22 seconds into that video. They go 1-2-3, pause 4-5-6, pause, 7. And you can see Kenny backing out of the door between the 1st and 3rd shots.
Matt Kenny -- who has shot someone in the line of duty before -- told investigators that he heard yelling and screaming inside and thought someone was being assaulted. On that video, which is a dashcam from Kenny's car, to which the Wisconsin Department of Justice added audio from another source, you can see Kenny entering at the beginning. It is quiet enough to hear someone inhale. If Kenny was struck before he started firing, it does not seem to have made a sound and no words or exclamations can be heard on the tape.
Kenny's superior officer said Kenny did not draw his weapon until he was 'in the context of mutual combat.' There are guidelines (which I will get to) for drawing a service weapon. Kenny can be seen readying himself to draw as he goes in.
Police Chief Mike Koval has said police didn't know if Tony Robinson had weapons. This is disputed: Police dispatch reports publicly available said witnesses had told 911 there were no weapons there, and Ozanne said police were told nobody had weapons.
According to news reports, either Kenny (or possibly Koval on his behalf) claimed at one point while inside, scuffling with Robinson, Kenny was 'knocked down.' No explanation was given for when that happened or how Kenny got back up, or whether Robinson continued to attack him while down. Kenny also apparently reported he had been knocked entirely down the stairs by Robinson. Statements on this website appear to walk that back, suggesting that Kenny was simply afraid of being knocked down.
Kenny's lawyer later said Kenny had suffered a concussion. Reports from the hospital that night said he was not seriously injured. According to the Mayo Clinic, signs of a concussion may not show up for some time, but concussions are also diagnosed primarily based on observation of the patient and self-reporting, unless they are severe enough to show up on imaging tests.
In total, Kenny was inside the building for 20 seconds. Ozanne said all seven casings were found at the bottom of the stairs.
Robinson had been reported by friends to be using drugs that day and battering holes in the walls of the apartment. Tony Robinson had violent criminal charges in his past, and suffered from various mental disorders. It's not stated whether Kenny was aware of those things when he was dispatched or went into the apartment. This is important, as people who know about the law realize (or ought to.) Kenny's state of mind matters, which is why the reports of violent behavior (as well as the assertions there were no weapons) are significant.
How do you interpret that series of facts, gleaned from 1,100+ pages of reports as well as the video and audio?
More importantly, who should determine what those facts add up to: one man, whose office is up for the sort of pseudo-elections 'non-partisan' races faces every few years? Or a jury (selected in part by the community's representative, and in part by Kenny's team) made up of community members charged with determining what is reasonable?
Wisconsin law requires that officer shootings be investigated by someone other than the force on which the officer serves. That makes sense. Why, then, do we allow the district attorney -- whose job is so linked with law enforcement and so dependent on the cooperation and support of police to keep their position that it almost appears to be a per se conflict of interest-- to make the decision on whether or not to prosecute officers who shoot civilians?
It is not clear whether the Dane County District Attorney's office has written guidelines for when it will issue a homicide (or any criminal) charge. In the years when I practiced criminal defense, I was never made aware of any such guidelines. Perhaps Ozanne has them, perhaps not. If he does, then he did not elaborate on them in any way that I heard from the press, or say how they guided him. He did not appear, for example, to say that his office will only charge when it is clear that they are likely to obtain a guilty verdict, or when there are no conflicts in the evidence, or when any other even semi-objective standard is considered or met.
Which leads to the suspicion that there are no objective standards, at least not in the way that we would ordinarily consider a standard to be 'objective.' So charging decisions in police shootings are made subjectively -- and that puts the power to unilaterally acquit a man of homicide in the hands of just one person, and the person who holds that power is the man's boss, in essence, and relies on that man and his coworkers to effectively do his own job.
Is that the standard we want?
Is that justice?
When there are outside forces that tend to overwhelm the sense of 'justice' in a charging decision, or in the dispensing of that justice, Wisconsin (and many states) have taken the decision-making out of the hands of the people most likely to be subjected to those unique pressures that distort the system. Take domestic abuse cases, for example. When I first began practicing law, I defended a client charged with domestic disorderly conduct. My client's significant other contacted me to recant her statement and ask that charges be dropped. I discussed that with the assistant district attorney on the case, and was laughed at. "They always recant," I was told, and the charges continued, with an eventual guilty plea.
That prosecutor went against the wishes of the victim to charge the defendant, and get a conviction, and was probably right to do so. In a vast number of such cases, the victim's do recant, and not because they were lying. They recant because of financial pressures or because they are battered and cannot escape that cycle or out of fear of retribution after the case is over and the sentence is completed.
So Wisconsin has a mandatory arrest policy, a detailed one, that requires arrests in most cases of domestic violence. The suspect is arrested and removed from the home, and often there is an immediate 72-hour no contact order. This helps give victims the courage to call the police, without fearing the perpetrator will be left in the house after a police visit, further endangering her or him. And, at least for a while, it appeared that Dane County had a policy of not dropping charges against people accused of domestic violence. Because those cases should be dealt with in the criminal justice system, with a judge and a jury considering the evidence, rather than unilaterally disposed of based on the whims of one man, subject to political pressures and other extrajudicial influences? Possibly.
Wisconsin also has limits on prosecutorial discretion in other instances; for example, drunk driving charges cannot be dismissed or lowered in many cases.These are laws designed to reduce the risk that prosecutors will unfairly, or subjectively, use their near-absolute power to decide to charge someone with a crime, or not, based on factors other than public safety and justice.
There are, so far as I know, no laws anywhere designed to minimize the risk that prosecutors will have a pro-police bias, or will not want to risk alienating their team, or lose their image as 'tough on crime law enforcers', and these pressures can loom large in the life of a man who has already run once for higher, statewide, office and who will likely do so again.
Ozanne called Kenny's seven shots in three seconds a lawful use of force. There is so far as I know no law authorizing a police officer to use deadly force in any manner other than the rights any citizen would have, which are the laws regarding self-defense and use of deadly force.
The Madison Police Department has guidelines on the use of deadly force. The standards are identical to those which govern self-defense in the criminal law:
Recognizing our legal and moral obligation to use force wisely and judiciously, it is the policy of this department that deadly force will never be resorted to unless an officer reasonably believes that a lesser degree of force would be insufficient to defend the life of another, one’s self, or in limited situations, to apprehend a dangerous felon, or control an animal.
The guidelines go on to require that to be justified in using deadly force, an officer must fear 'imminent danger of death or great bodily harm," and that the fear be reasonable. These are the same standards for self-defense under Wisconsin's criminal law.
In most situations, whether something is reasonable is for a jury to decide. A case would almost certainly be sent to a jury if a young black man kills someone and claims self-defense. And now, in America and in Madison, Wisconsin, it seems such a case almost certainly will not if the person unloading 7 shots in 3 seconds is a police officer, and the corpse is black.
(I am aware that Tony Robinson, like Ozanne, is biracial. In America, to most people, biracial means black. This is not my view, but the view of many people. That is why I say Tony Robinson was black. Ismael Ozanne, a biracial man, was described by CNN as the "African-American district attorney." Obama is our first black president despite being biracial. This is sadly relevant to cases like this, because black men, and especially young black men, are disproportionately singled out for more severe treatment by our criminal justice system. "More severe treatment" the last few years appears to be escalating to unilateral execution by law enforcement, imposing the death penalty at or before arrest for a variety of offenses both real and imagined. If I find myself doubting that a white victim would be given the same callous treatment, that doubt is at least in part a product of an increasingly-flawed criminal justice system where the suspicion of bias in favor of police and against black males is not being dispelled by the men and women making the charging decisions.)
Was it reasonable for Kenny to begin to draw his weapon as he entered the building? Was his (self-reported) story of the battering he took accurate? Consider whether it was possible, in seventeen seconds, for Kenny to get to the top of the stairs, confront Robinson, exchange words (Kenny saying he is an officer, Robinson retorting), then having Robinson punch Kenny hard enough to knock him down the stairs, or almost knock him down the stairs, after which Kenny can stand, aim, and fire seven times while backing away?
Can you be convinced that Kenny was knocked down the stairs, and was able to stand up and right himself and almost immediately aim accurately enough to hit Robinson square in the chest 7 times? If you believe that, then answer: what was Robinson doing while Kenny fell down, got up, aimed, and fired? Robinson was at the bottom of the stairs when he died. In this version, then, Kenny is knocked down the stairs, Robinson pursues, and Kenny is still able to get up and fire. This might be the most reasonable version of events, the one most supporting self-defense, which, again, is the only authorized use of deadly force. This is also the version Kenny appears to no longer be claiming happened.
Can you alternately believe the other version of events that Kenny appears to have given, according to news reports, that he wasn't knocked down the stairs but only feared that, and so must have backed down the stairs from a retreating Tony Robinson but did not fire until he was almost outside the door? If he was able to do that, why could he not back into the street and see if Robinson continued to progress towards him, once outside and having greater freedom of movement -- with backup already there? (Another officer arrived at the tail end of the seven shots, which means Kenny's backup was twenty seconds away when Kenny entered the apartment. I did not hear audio of Kenny asking where backup was, and I do not know whether it was reasonable for Kenny to enter the apartment.)
In sum, considering the video, the possibly-changing stories, the conflicting statements from the police chief and the DA about whether police knew there were weapons in there, the belated claim of a concussion, do you feel confident that you know exactly what happened in that twenty seconds?
Ismael Ozanne does, and because he will not submit one of his officers to the review of a jury made up of Dane County citizens, he is the sole arbiter of what is right, and what is wrong, in this and in many other officer-involved shootings.
Juries serve as the conscience of the community. They determine what the standard of care is in negligence cases. They resolve questions of fact when litigants (whether civil or criminal) are unable to do so. They weigh whether parents' rights to their children should be terminated, and whether people are mentally ill or responsible for their heinous crimes.
(In fact, a jury just did for Dane County Sheriff's Deputy Andrew Steele, who was found not guilty by reason of mental disease or defect for killing his wife and sister-in-law. Those two women were white, and Steele was charged with their deaths. Could it create a feeling of a double standard, for minorities and persons of color, to see that in the case of white women, Ozanne allows the community to decide the punishment, but when a black youth is shot, Ozanne alone gets to make the call? I'm a white man. I can't answer that for others. Perhaps there was no question about whether Steele's use of force was 'authorized,' but the decision as to how culpable Andrew Steele was in that homicide case was left to a jury, and rightly so.)
On Twitter today when I posted about this, I was called a 'retard' and rebuked by people who know little about self-defense, or how juries work. That's the level of reaction I typically get (and many typically get) from the ill-informed or those with a particularly nasty axe to grind.
Twitter isn't a great place to respond to arguments. Little sense can be made in 140 characters. But even given 140,000 characters, I don't know that I could make sense of what goes on with officer shootings these days. Weeks before the charging 'decision' -- a fait accompli -- was announced, I was already certain there would be no charges. That opinion came from the fact that there are almost never charges in these instances (or, if there are, they are not sufficiently publicized for me to know about.) The perception is quickly becoming that police can shoot whomever they want, especially if that whomever has some African-American heritage.
Then, when Ozanne long before the decision said that he would give 48 hours' notice before speaking out, I was even more certain. It appears Ozanne, before speaking publicly about his decision, knew that it would cause unrest. Kenny shot Robinson on March 6. On April 17, without having completed his review, Ozanne already said he would give 48 hours' notice before his press conference.
There was little chance that the press needed 2 days to convene for that speech. It appears that the decision to give notice was to allow authorities to prepare for unrest, and community leaders to try to be ready to quell any violence such as occurred in Baltimore.
But why would Ozanne, nearly 3 weeks before finishing his review, fear that there would be unrest when he announced his 'decision'? One possibility is that he had already decided not to charge, and was simply waiting for tensions (including Baltimore) to die down, while also appearing to give the case proper scrutiny.
That's a hard thing for me to say about Ozanne; as I said, I was in his class at law school. I didn't know him well, but I liked him and thought he was intelligent and hard-working. I don't like to suspect that he was making decisions for the wrong reasons.
But again, if I -- knowing what I know about prosecutors, the law, and even a bit about Ozanne himself, and if I, as a white male -- if I find it hard to see this as fair, if I think that the decision was made not to charge Kenny more or less simultaneously with the moment the seventh bullet hit Tony Robinson, how much harder is it for people who don't know what I know? How much harder is it for people who have to actually fear that they will be gunned down when the police show up at a call at their house?
That's not something people in Middleton worry about. If the cops get called to my neighborhood, they don't come in with guns drawn. That's something poor people, and people of color, worry about. And why shouldn't they? The law, held in the hands of one man who refuses to let the community decide what is fair, and who refuses to adequately explain why that is, appears to treat them differently.
It has, for a while now, appeared to be open season for police officers to shoot black males. Ismael Ozanne has allowed that to continue. It will continue, unless and until we take the power out of the hands of one official that rarely faces serious challenges in elections, and put it in the hands of the community.
It's possible a civil jury will still be allowed to weigh the evidence in the Robinson case, and I certainly hope that Robinson's family files a suit at the earliest possible time against Kenny and the Madison Police Department. The public deserves to have confidence that the decision on whether Kenny was right or wrong to shoot Robinson seven times in the chest is based on justice and truth -- not on wanting to be re-elected or consolidate power or eventually seek a higher office.
But civil trials do not serve justice. A man is dead. Because he was shot by someone with a badge, the community is not allowed to decide if that shooter committed a crime. And that makes it all the more likely that this will occur, again and again and again, until we as a society decide that perhaps the watchmen cannot watch themselves.
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