It’s a police matter

Five former Blackwater security guards are free today despite evidence that they killed or wounded more than 30 Iraqis in Baghdad’s Nisoor Square on a September morning in 2007. They were freed on what conservatives like to deride as a “technicality” but which reasonable people should realize was a shocking violation of their 5th Amendment right against forced self- incrimination.

What ought to be even more troubling to residents of Southern California is that the circumstances that led to the Blackwater dismissal are far from unusual. They are repeated, day in and day out, by law enforcement agencies in this region and across the United States.

The issue that doomed the case was the misuse of “compelled statements.” The guards were forced to discuss the events of that day by government officials -- in this casefrom the State Department -- on the threat of losing their jobs. That part was legal, but the statements were then used by other government officials -- prosecutors in the Justice Department -- in preparing the criminal case against them. As a result, the guards were prosecuted with statements they were forced to provide, precisely the travesty that the 5th Amendment prohibits.

Yet the Los Angeles Police Department, along with many other agencies, regularly puts itself in the same difficult position. Internal affairs investigators who roll out to scenes where police may have committed crimes first ask the officers to give voluntary statements, only to have the officers routinely refuse on the advice of their union. The officers are then ordered to speak or be fired; they almost always do so at that point, but the compelled statements may be used against them only administratively, not in criminal prosecutions.

The insistence on extracting statements this way has caused inordinate hardship over the years. During the investigation of the officers who beat Rodney G. King, for instance, they gave compelled statements for the purposes of gauging whether they violated department policy. Because those statements were inadmissible against them at trial, prosecutors had to create a “dirty team” to scour all evidence and make sure it was devoid of any reference to the statements. The “dirty team” then passed that edited material to a “clean team” that prosecuted the officers. Those complicated efforts became laughably extravagant and expensive when Sgt. Stacey C. Koon, one of the defendants, wrote a book that quoted from the statements. Potential jurors and witnesses, as well as prosecutors, then had to be screened to ensure that they had not been exposed to the statements or to news coverage about the book. Rare is the case that warrants such investment. One reason so few police are prosecuted is precisely because of the burdens created by compelled statements and their taint.

The exemplary work of federal prosecutors in the King case ensured a clean conviction of Koon and Officer Laurence M. Powell (two other officers were acquitted). But in the aftermath of the case, the LAPD did not end the practice of demanding that officers speak or be fired. It has adopted safeguards to protect their statements from being leaked to prosecutors, but it continues to compel officers to speak, endangering the possibility of successful prosecutions. Indeed, after the Rampart scandal years later, the Independent Review Panel that examined those far-reaching allegations concluded that the LAPD’s administrative investigative processes “seriously compromise[d] criminal investigations.” Moreover, other police agencies have emulated the LAPD and now compel officers to talk, usually driven by police unions that encourage officers not to cooperate voluntarily in order to protect their jobs and thwart investigations of possible crimes.

There are certainly reasons to compel testimony. The vast majority of police investigations validate the work of officers; even those that find fault usually don’t uncover criminal violations. Compelling statements speeds that process and clears up administrative matters quickly. But inviting officers to cooperate offers many of the same benefits without the same risks. The LAPD, now under new leadership, should revisit its position on this issue and determine whether compelling statements has outlived its usefulness. One place to start may be by examining the practices of the Los Angeles County Sheriff’s Department, which asks deputies to give voluntary statements and generally does not force them to talk under threat of firing. (In some rare instances, it does compel statements -- usually, however, after a criminal investigation has been concluded.) The LAPD and other agencies also might consider threatening officers with something less than firing -- a brief suspension might induce compliance and not run afoul of the law.

Some police departments already have concluded that compulsion is not worth the risk. Some local and most federal agencies conduct their internal investigations without resorting to compelled statements. They manage to dismiss irresponsible employees and prosecute those who commit crimes. Those agencies uphold the law; when their counterparts do not, truth and accountability are the victims. The proof: No one will be held responsible for what happened in Nisoor Square.