Off to a fast start, Amy Weirich’s new prosecution unit targeting police brutality already has filed criminal charges against two law enforcement officers.
Yet time will tell if the District Attorney’s Conduct Review Team and similar measures across the county can root out excessive force, says one expert who studies officer misconduct.
“In terms of reform of policing, I’m somewhat skeptical,’’ said Philip M. Stinson, a criminal justice professor at Bowling Green State University who maintains a nationwide opens in a new windowdatabase on arrests and prosecutions of police officers.
“Things move very slowly in terms of actual changes in the way that police officers conduct themselves on a daily basis.”
But that hasn’t stopped some authorities from trying.
Weirch’s Conduct Review Team, or CRT, joins similar efforts in cities like San Francisco and Philadelphia, where prosecutors have pledged to hold brutal cops accountable.
The CRT was quietly organized last summer following an investigation by the Institute for Public Service Reporting and The Daily Memphian that found the Memphis Police Department routinely treated excessive force incidents as simple violations of policy and did not send them to prosecutors – even severe cases involving abuse of handcuffed prisoners.
So far, the CRT has convinced grand juries to indict two law enforcement officers – one MPD patrolman who allegedly pepper sprayed a mentally ill man in the face as he was restrained in handcuffs and a Shelby County Sheriff ’s deputy accused of assaulting a motorist.
Under a companion opens in a new windowpolicy adopted in March, MPD is sending all excessive force cases sustained by its internal investigators to the DA’s five-member CRT, which analyzes bodycam video, records, and other evidence to weigh officer actions against applicable criminal laws such as assault and official oppression.
“For all of this to work, the public has to trust law enforcement and the system, the criminal justice system,’’ Weirich said. “And I think us taking an impartial review of these cases is an important piece of that.’’
Still, critics are skeptical.
“It’s a step toward restoring trust,’’ Josh Spickler said with a tone of irony, “when police officers can be expected to obey the law.’’
Spickler, executive director of opens in a new windowJust City, a nonprofit criminal justice reform organization, said some may find it hard to fully trust the new system considering the lack of transparency in the past, including the fact MPD commanders operating outside public scrutiny have opens in a new windowoverturned a third of excessive force findings reached by internal investigators.
“We did not have a process whereby police officers are held to the same legal standard as the rest of us. And I still don’t think we do. But this is certainly moving in that direction.’’
Challenges to the initiative’s success also may come from police. Stinson, the criminal justice professor, said prosecutors in some jurisdictions have been reluctant to take aggressive steps like Weirich’s because they must work closely with police when litigating cases and they fear jeopardizing at times fragile relationships.
Interim Memphis Police Director Mike Ryall wouldn’t agree to an interview for this story, but MPD said in a written statement it supports the new criminal review process.
“The policy provides consistency and ensures that investigations which result in sustained charges of excessive force are reviewed by the Attorney General to determine whether criminal charges are appropriate…
“The policy reflects MPD’s efforts of transparency and it is a reminder to members of the department to use only the force necessary to effect an arrest or in self-defense.”
CRT born amid unrest
The CRT took form last August following months of unrest.
The murder of George Floyd by police in Minneapolis last Memorial Day had triggered daily protests in Memphis and other cities, along with extensive news coverage.
The Institute for Public Service Reporting and The Daily Memphian began publishing a series of stories in June exploring years of data documenting MPD’s internal investigations into use of force, finding referrals for prosecution were seldom if ever made.
Case files of 130 internal use-of-force investigations between 2015 and 2019 that MPD released through a public records request indicated the agency referred just two to Weirich’s office to determine if criminal charges should be filed. However, one of those cases apparently involved an errant entry and was not referred. The other involved a 2018 case that was referred by the Sheriff’s Office – not MPD – after a Memphis patrolman allegedly beat a handcuffed prisoner in the sally port of the County Jail.
Cases not referred included a opens in a new window2015 incident in which three officers kicked, punched and humiliated a handcuffed prisoner; another in 2016 involving an officer who repeatedly opens in a new windowelectro-stunned a handcuffed suspect with a Taser; and another incident that year involving a opens in a new windowbaton beating.
Weirch cited that reporting last year when she publicly asked MPD to begin sending confirmed cases of excessive force to her office for review.
Meantime, she was reorganizing her own office. Part of that involved “streamlining’’ how her office received referrals from law enforcement.
The DA’s Office has received referrals from MPD for years on a variety of corruption and misconduct matters, but those referrals have not been consistent, at least not when it came to excessive force.
“We didn’t know what we didn’t know,’’ Weirich said.
When referrals were received they often were handled in different ways, Weirich said. Sometimes those referrals would go to grand jury prosecutors. Others went to senior prosecutors for review.
“What we needed to do was to kind of shore up that process and streamline it a little bit and make it easier for law enforcement to know who to send these to,’’ Weirich said.
The solution was to create a five-member team headed by longtime prosecutor Reginald Henderson, Weirich’s Associate Deputy District Attorney. The CRT must unanimously recommend prosecuting a case and also get Weirich’s approval before presenting it to the grand jury.
In addition to receiving referrals from law enforcement, the CRT can launch independent inquiries when it becomes aware of police misconduct. This can happen when prosecutors detect problems with officer conduct while reviewing bodycam footage as they prepare for trial, Weirch said.
Soon after its formation, the CRT moved to indict former Sheriff ’s Deputy Justin Fitzgibbon, 40, who was charged last August with official oppression, a felony, and misdemeanor assault for the alleged beating of a motorist. Fitzgibbon had arrested the man for allegedly assaulting him during a traffic stop on Interstate 40.
But when internal investigators reviewed the deputy’s bodycam footage they determined that wasn’t the case.
To the contrary, investigators asserted that Fitzgibbon had assaulted the man “by striking him in the face and head area until he fell to the ground. Once on the ground, Fitzgibbon delivered multiple knee strikes to’’ the man’s head, an internal report says.
Then in November, the CRT found cause to indict former MPD patrolman William Skelton, 36, who was charged with official oppression. Featured in The Institute and Daily Memphian’s excessive force investigation, Skelton was opens in a new windowcaught on bodycam footage firing repeated gushes of pepper foam into the face of a mentally disabled man who was restrained in handcuffs.
Internal investigators had filed administrative charges against Skelton following the Jan. 10, 2019 incident, but he remained on the force another year before resigning Feb. 1, 2020. When the news organizations first wrote about the case last July it had not been referred to prosecutors.
Both Fitzgibbon and Skelton have pleaded not guilty.
In all, the CRT has reviewed at least seven use-of-force incidents, including the case of former MPD patrolman opens in a new windowColin Berryhill, who resigned in October after internal investigators found he’d misused his Taser on citizens in three separate incidents over the course of a year. The CRT declined to prosecute, finding insufficient evidence to carry a criminal charge.
MPD said in its written statement it’s referred the Berryhill case and a second, unknown case, to the CRT. The DA team declined to prosecute the other case, too.
Ted Hansom, Skelton’s attorney, suggested politics is behind his client’s indictment.
Skelton was indicted nearly two years after the pepper spray incident, but just months after George Floyd died in Minneapolis, Hansom noted.
“This was not a crime,’’ the attorney said.
Spickler said Weirich is in a complicated spot politically. A Republican perceived by many as a traditional “law and order’’ candidate, Weirich’s move toward reform may be explained by the fact she’s up for re-election next year, and likely will face more than one progressive candidate whose priorities include police accountability, Spickler said.
“There seems to be a need to be able to speak that (police reform) language at the very least, and to be able to appeal to voters who are not necessarily hard right,’’ Spickler said.
He also questions why Weirich hasn’t done more to trumpet the CRT’s accomplishments. Though Skelton was indicted in November, the development only became public last week when a reporter stumbled on it.
“This would seem like something that she would have led with (through a news release) and controlled. But she didn’t. So, I don’t know. That’s a little odd,’’ Spickler said.
Then too, the police reform age has triggered a rethinking of many traditional views.
Stinson, the criminal justice professor, said high-profile police chokehold deaths like that of Eric Garner in New York in 2014 have forced authorities to consider criminal charges when similar incidents arise.
“Many autopsies (in the past) were written up where asphyxiation was the cause of death and it was never treated as if it was potentially criminal action by a police officer,’’ Stinson said. “And I think now that we’re starting to see potentially that maybe that’s changing, where those matters are potentially thought of as, ‘Well, maybe there was a crime committed.’ ’’
In some jurisdictions, that rethinking includes a spectrum of nonfatal use-of-force cases.
In San Francisco, reformist District Attorney Chesa Boudin has filed criminal charges against three former police officers for alleged excessive force since taking office in January 2020. One recent case involves a former officer accused of four felony assault and battery counts for the baton beating of a Black man.
Under an agreement with the San Francisco Police Department, a special District Attorney’s unit called the Independent Investigations Bureau investigates all officer-involved shootings, in-custody deaths and use-of-force incidents that result in serious bodily injuries.
“For too long in the United States, officer-involved shootings, in-custody deaths, and use-of-force incidents have been shrouded in secrecy,’’ reads an Independent Investigations Bureau policy statement.
In Philadelphia, progressive District Attorney Larry Krasner’s Special Investigations Unit this year has charged 10 current or former police officers with crimes ranging from perjury to assault and obstruction of justice.
Elected in 2017, Krasner faces a tough re-election challenge this month from a police-backed candidate buoyed by supporters disenchanted with that city’s recent uptick in homicides and gun violence.
“His defeat would cast doubt on whether criminal-justice reform can survive a surge in deadly shootings, and the movement’s champions are worried that the electoral backlash would cause progressive prosecutors elsewhere to be more cautious,’’ politics reporter Russell Berman wrote this month in The Atlantic.
Whether such pushback to reform develops in Memphis remains to be seen.
Essica Cage, president of the Memphis Police Association, the labor union representing Memphis’ 2,000 police officers, could not be reached for this story.
Regardless, Weirich said holding all citizens, especially police, accountable to the law is a vital step.
“If you are violating the laws of the state of Tennessee, it’s the responsibility of this office to do something about that … particularly when you’re talking about the profession of police officers (because) it gets back to the public trust,’’ Weirich said.