Court asks: Why do we have coroner’s inquests?

Clark County commissioners could have saved a lot of people some time on Tuesday, had they specifically and unambiguously mentioned in their law books the purpose of the coroner's inquest when it comes to police-involved shootings.

Since they did not, it was left to attorneys and justices of the Nevada Supreme Court to argue, interpret, extrapolate and even guess.

Is it a preliminary criminal investigation, the results of which could lead to the filing of criminal charges against a police officer who acted unlawfully and caused somebody's death? That's what the attorneys for law-enforcement officers argued.

Or is it a fact-finding proceeding designed to gather information to assist the coroner, the dead person's family and the community at large in understanding what happened?

The answer could mean the difference between allowing long-delayed coroner's inquests to go forward, or scrapping the entire system and starting again. And it turns on an extremely fine but nonetheless important point: Criminal investigations in the United States are supposed to be conducted by agents of the executive branch (think Metro police, the FBI, the district attorney and the attorney general).

If the coroner's inquest is a criminal proceeding, then it can't proceed, because state and county laws now designate a justice of the peace to preside. And a justice of the peace is a member of the judicial, not the executive branch.

But, if it's a neutral, non-criminal fact-finding proceeding, then a justice of the peace may serve without doing violence to the state constitution's separation-of-powers clause.

Thus, the controversy, which had to take place against what Supreme Court Justice Kris Pickering called the "cipher" of Clark County's inquest ordinance.

There are strong clues that the inquests are not intended to be criminal inquiries, as police officers fear. (Officers worry that they will be compelled to provide testimony that may be used against them, should the district attorney decide to file criminal charges.)

For one, the ordinance compels the presiding officer to tell those in attendance that "the inquest is not an adversarial proceeding but a fact-finding proceeding." Questionnaires given to coroner's inquest juries "shall deal only with questions of fact and shall not deal with questions of fault or guilt," the county's ordinance says.

"The purpose is to have a fact-finding process to find the manner of death that's fair and transparent," argued attorney Luther Snavely, speaking in defense of the county's law.

But if that's true, why is a prosecutor involved in helping the coroner prepare for the inquest?

That was one of the questions posed by Joshua Reisman, an attorney representing police officers opposed to the coroner's inquest as constituted by the county.

"These are accusatory proceedings," he told the court. "It has all the indicia of a trial. Of course the public is going to think of it as a trial."

Then again, current District Attorney Steve Wolfson has said he will make an independent decision about whether a police shooting is criminal, regardless of the outcome of a coroner's inquest. That tends to suggest inquests really are fact-finding hearings.

Then again, before the county did away with findings of "criminal," "excusable" or "justifiable," only one coroner's jury found a police shooting criminal. After that verdict, the district attorney submitted the case to a grand jury, which declined to indict the officers. That gives weight to the idea that inquests are preliminary criminal proceedings.

Under the old system, nearly all shootings were ruled "justifiable," even questionable ones. Clark County made changes to the system in an attempt to give families and the public more information, not to increase criminal jeopardy for cops.

Come to think of it, they should have just said that somewhere in the ordinance.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 387-5276 or SSebelius@reviewjournal.com.