Inquest proposal produces unease

Letting the victim’s family participate directly in hearings is considered by many as the pivotal recommendation from the 10-member advisory panel that studied the county’s inquest system and is proposing changes.

In an 8-2 vote, the panel recommended that the county provide independent counsel, or an ombudsman, to the family, and that police officers have a union attorney represent them in open court. The attorneys could ask questions of police officers and witnesses.

Prosecutors and jury members are the only ones who are allowed to do that under the current inquest system. The victim’s family must submit written questions to the judge.

Despite the strong backing from the advisory panel, most commissioners appear hesitant to follow the recommendation — which has always been a sticking point in revising the inquest process.

On Tuesday, commissioners will discuss a report that summarizes the panel’s recommendations, but they won’t hear public comment or take action. The commission will hear from the public on Dec. 7 and decide which suggestions, if any, to adopt.

A few commissioners echoed concerns raised by the district attorney and law enforcement officials, who argue that bringing in more lawyers could turn the fact-finding sessions into adversarial mock trials.

“I’m not sure I’m in favor of giving them (family members) an attorney and creating an adversarial process,” said Commissioner Steve Sisolak, who spearheaded the creation of the inquest review panel. “That’s the one area I have hesitation.”

A couple of commissioners sided with those who contend that giving the families a voice in the hearings would help ensure the process is fair and would aid in probing for the facts in a fatal shooting.

Commissioner Rory Reid, who is preparing to leave office after his unsuccessful run for governor, said it was crucial to make that change. Much of the public is dissatisfied with the family sitting on the sidelines, unable to challenge the prosecutor’s questions or to ask follow-up questions, he said.

“There’s a perception the process wasn’t well-rounded and fair,” Reid said.

Commissioner Susan Brager thinks families should be represented. Commissioner Tom Collins opposes it, saying it would make the inquest too much like a trial. Commissioners Larry Brown and Lawrence Weekly expressed mixed feelings. Commissioner Chris Giunchigliani couldn’t be reached for comment but voted four years ago to let attorneys represent victims’ families at hearings.

Commissioners formed the advisory panel after two deadly shootings sparked a public outcry earlier this year.

Trevon Cole, 21 , a small-time marijuana dealer, was shot by police while unarmed in his apartment. And Erik Scott, 38, was shot outside a Costco by officers who claimed he attempted to draw a pistol he was carrying.

Inquest juries ruled the officers were justified in both incidents.

Commissioners expressed support for most of the panel’s other recommendations, including:

■ Eliminating a jury verdict of justified, excusable or criminal. Juries would be renamed inquest panels and make findings of fact instead of fault.

■ Having the attorneys of family members and police officers meet twice with the judge and prosecutor before the inquest. Investigative files would be made available to the parties involved, something often not done now.

■ The parties would determine the line of questioning that would take place at the inquests, with an eye on what happened during the shooting rather than delving into the victim’s or officer’s past.

Critics bashed prosecutors for dredging up Erik Scott’s past drug use and stormy relationships with women, saying his personal history was irrelevant.

Maggie McLetchie, an attorney for the American Civil Liberties Union, said the proposed changes, if combined, would be groundbreaking. But if the commission refuses to let families have representatives at inquests, the other changes would become meaningless, she argued.

She noted that four years ago, a different inquest panel recommended that families have lawyers at inquests, and the commission rejected the idea. Giunchigliani and Weekly were the only two commissioners who supported it.

But back then, a minority of panel members made the proposal, she said. This week, a solid majority, including Sheriff Doug Gillespie, voted to supply the family with an ombudsman and let police have a union lawyer.

McLetchie initially pushed to have families get an attorney of their choice but agreed to the ombudsman as a compromise. The ombudsman would be neutral and ask questions in pursuit of the truth rather than gathering ammunition for a future lawsuit against police, she said.

The only two members who voted “no” were District Attorney David Roger and Chris Collins, head of the Police Protective Association.

“It would be really disheartening to allow the DA and PPA to veto changes to the system,” McLetchie said. “If that ended up happening, it would be a disgrace.”

Collins, however, argued that none of the recommendations benefits police officers. The proposed changes would pit one attorney against another and lead to combative cross-examination of officers and witnesses, he said.

Several officers at the panel’s final meeting said they wouldn’t participate in inquests if they faced cross-examination. Collins said he received about 100 e-mails from officers saying the same thing.

He said he opposes using an ombudsman because it would merely be an attorney hired on the public’s dime.

“I don’t think the taxpayers should be on the hook for hiring representation for the decedent’s family,” Collins said.

Brager agreed that the county shouldn’t pay for counsel, especially with its strained budget. But she supports letting private attorneys represent families in court.

“I think if they want to bring in someone they choose, they should,” Brager said.

Sisolak said the proposed use of an ombudsman “came from left field. ” He said he would need more details, such as how the ombudsmen would be chosen, before he could form an opinion about this method .

He said he also worried that officers would decline to testify if they faced opposing counsel.

McLetchie, though, said the threat of officers shunning inquests because of cross-examination is “a red herring.” In King County, Wash., where lawyers represent victims’ families at inquests, few officers have refused to participate, she said.

Weekly said he sees no easy solutions for increasing fairness.

If private lawyers are allowed, then well-off families could hire them, but impoverished families couldn’t afford them, he said. If ombudsmen are appointed, then families would have to deal with a stranger they might not trust.

Brown said he would like to see inquests probe for facts in a reasoned manner and not become adversarial. If questions are determined in pre-inquest meetings, then attorneys might not need to take part in the hearings, Brown said.

The system has flaws but is working better than in some other parts of the country, he said, adding that it needs to be improved, not overhauled.

He said he was still mulling over whether it would truly aid the system to bring more lawyers into the mix.

“I’m undecided on that component,” Brown said.

Contact reporter Scott Wyland at swyland@reviewjournal.com or 702-455-4519.