D.A., Sheriff Faulted for Lack of Probes : Report: Miller strongly objects to the little-noticed critique issued by the grand jury.

A little-noticed passage in the 1991-92 San Diego County Grand Jury’s final report contains pointed criticism of the district attorney and the Sheriff’s Department’s internal affairs division for not investigating cases of lethal force in at least 15 instances.

The critique includes a recommendation that the district attorney conduct independent investigations and renews debate over whether deaths at the hands of officers are being properly examined.

As to detectives investigating members of their own department on matters of deadly force, the grand jury said it is “convinced that a code of silence exists.” When ethical conflicts arise, the report says, “the effect of the code may place officer-to-officer loyalty above the obligation to serve the community.”

Jurors called on the district attorney’s office and law enforcement agencies to “re-identify” their roles in investigating civilian deaths.

The jury’s comments are based on a review of 15 cases of lethal force and are contained in a lengthy compilation of reports released a month ago. Jury foreman Richard Macfie said Tuesday that the information has not received media attention because it was included with other reports that were all released at the same time.

But days after the jury’s Law & Justice Committee made its analysis late last month, Dist. Atty. Edwin Miller responded with a forceful rebuttal, calling the report “superficial and indicative of an almost complete lack of understanding of the process.”

In a letter to Arthur Jones, the presiding judge of the Superior Court who oversees the grand jury, Miller said he was not surprised by the critical report, having been warned before the Law & Justice Committee had completed its review.

“It is obvious that in their zeal to criticize our handling on these matters, the Law and Justice Committee members failed to adequately perform their roles as impartial investigators,” Miller wrote.

The district attorney’s office reviews, but does not always independently investigate, incidents of lethal force, Miller said. In most cases, he said, investigators rely on reports gathered by the police agency’s homicide unit, though sometimes the district attorney’s office gathers its own evidence and conducts its own interviews if it believes the agency’s investigation was incomplete.

“As a general rule,” Miller wrote, “the current review practice has included varying degrees of independent investigation for a substantial number of the incidents.”

The grand jury, however, found that in the 15 cases of lethal force it reviewed, all which involved the Sheriff’s Department, there was no evidence that the district attorney’s office or sheriff’s internal affairs detectives conducted an investigation.

With explanation, the jury stated in its report that “the California Senate Committee on Judiciary . . . has stated that district attorneys have ‘inherent conflicts of interest,’ ” suggesting that Miller, as the senior law enforcement official in the county, cannot fairly investigate officers.

Miller took strong exception.

“Contrary to assertions by some individuals,” he wrote, “the police do not work for the district attorney and the district attorney does not work for the police. Although infrequently required, in appropriate cases, criminal charges can be and have been filed.”

Since 1986, the district attorney’s office has charged more than 60 officers with crimes. But no officer has been prosecuted for a shooting since 1984, and the officer in that case was eventually acquitted.

Prosecutors and legal experts say it is extremely difficult to convict a law enforcement officer in a shooting, because it must be proven that the officer did not have a reasonable fear that his or her life was in danger.

Critics of the district attorney’s office say the office is reluctant to prosecute officers for deadly force because of an unspoken bond between law enforcement agencies.

Miller took strong exception to the Law & Justice Committee’s review of the 15 cases, saying it consisted of three members meeting with Miller’s media spokesman for 90 minutes and “leafing through 15 review letters on police shooting incidents.”

Committee members, he said, never asked for copies of the letters, never examined background material or asked to interview prosecutors or district attorney investigators, Miller said.

“They found no evidence because they sought no evidence,” he wrote.

The internal affairs units of the San Diego Police Department and the Sheriff’s Department investigate all incidents of deadly shootings in their jurisdiction once the homicide division and district attorney are through with their reviews.

Internal affairs determines whether the shooting adheres to the department’s policies and procedures. A separate, internal shooting review board then determines whether the officer should be disciplined.

Sheriff’s spokesman Dan Greenblat said jurors were mistaken in their assumptions on how the department works.

“We concur with the district attorney’s assessment and are appalled the grand jury could reach its conclusion considering the availability of overwhelming evidence to the contrary,” Greenblat said.

Grand jury foreman Macfie said some jurors believed that, more often than not, the district attorney relied on a law enforcement agency’s investigation instead of conducting an independent investigation.

“Some members thought further investigation was warranted, justified and prudent,” Macfie said. “That’s not to say the results were wrong or that the shooting was not justified, but we questioned whether additional investigation might be warranted.”

The Law & Justice Committee looked into the issue because it was “an area of terrible upset,” Macfie said. “People are being killed. It’s a tragedy for the people who are shot and for the ones doing the shooting. It’s a lose-lose situation.”

Miller rejected the jury’s recommendation that his office conduct an independent inquiry of all incidents in which lethal force is used. San Diego Police Chief Bob Burgreen also recommended independent investigations in late 1990, after his department conducted a sweeping study of lethal force.

More recently, Miller said, the San Diego County association of police chiefs and the sheriff reaffirmed the current investigation procedure, in which each agency does the examination and then turns its findings over to Miller.

“Aside from political expediency, there is no reason for this office to adopt (the) recommendation,” Miller wrote. “Had the Law & Justice Committee conducted a complete and thorough investigation, they might have reached the same conclusion.”