This article was originally published in the Richmond Times-Dispatch on Aug. 8, 2018.

Forty-two people were killed by police across Virginia since Jan. 1, 2017.

The deceased were mostly black, at least one had a known mental illness, two were teenagers, some were unarmed, and they almost always were shot, although one was Tasered to death and two were hit by a police cruiser. None of the officers involved have been charged with a crime.

Whenever police kill someone in the Commonwealth, the ACLU of Virginia calls for three things: release of any video – whether from bodycam, dashcam or other sources – that may exist, release of the officers’ names no later than 48 hours after the incident, and an investigation that is independent of the local prosecutor’s office and the law enforcement agency whose officers were involved.

Some sheriffs and police departments are doing the right thing by asking officers from another jurisdiction to conduct the initial investigation. Of the 12 police killings that occurred so far in 2018, outside reviews were conducted into at least seven.

The results almost always are turned over to the local Commonwealth’s attorney to decide whether criminal charges are warranted, however. This is a problem because the local prosecutor works very closely and has relationships with officers in the same jurisdiction, relying on them as trusted witnesses in trial after trial after trial.

On May 15, a Richmond Police Department (RPD) officer fatally shot Marcus-David Peters, a 24-year-old high school teacher who lived in Henrico County, on the shoulder of Interstate 95 as he charged the officer, who first tried to subdue Mr. Peters with a Taser. Mr. Peters was naked and clearly had no weapon, the officer’s bodycam video showed. He seemed to be in distress and in need of help, not bullets.

In Peters’ case, to his credit, RPD Chief Alfred Durham did release the bodycam video, the name of the officer involved, and materials used to train the officer in use of force. He also participated in a recent community forum about the killing. Regardless, the chief still deemed the department capable of investigating one of its own and did not request an outside review.

Now, RPD has turned the results of its internal investigation over to Richmond Commonwealth’s Attorney Michael Herring, who will decide if charges should be brought against the officer who killed Peters. Herring is by all accounts a person of integrity. We applaud his willingness to explore the root causes of crime, end cash bail, and pursue justice for victims, the accused, and the community instead of just locking people up.

Nonetheless, just as an objective investigation by an outside law enforcement agency would have helped build public confidence in the result, so would a review by an outside prosecutor.

Moreover, Mr. Herring also knows something about the need for an impartial prosecutor, as he served in that role himself in an investigation into the tragic fatal Tasing death of Linwood Lambert Jr., 46, in South Boston in 2013.

The ACLU of Virginia does not have all the facts to say whether any of the officers involved in the 42 killings described above should face criminal charges. But there is no other instance in which there is a greater need of assurance to the public of the integrity of the investigative process and the objectivity of prosecutorial decision-making than the case of a killing of a private person by a police officer.

Objective investigation and truly independent prosecutorial decision-making is critical to building trust in every actor in the criminal justice system, including the prosecutor who has the power to pursue charges, or not.

For all these reasons, Herring should recuse himself from Peters’ case and ask a Commonwealth’s attorney from an uninvolved jurisdiction to review this case and make the important decision whether the officer involved here should be prosecuted.

In addition, to ensure truly objective investigations and independent prosecutions going forward and provide public accountability, the Virginia legislature should pass legislation creating an independent law enforcement unit with the power, investigators and prosecutors to handle all cases statewide that involve death or serious bodily injury to a person caused by the actions of a law enforcement officer.

Public trust in law enforcement demands nothing less. And, a specialized unit will serve the interest of police and prosecutors, too, because the unit will be experts in such cases and the prosecutorial decisions will be uniform statewide.

 

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