Grand jury to review police cases

Citizens will decide if use of deadly force is justified

`A cleaner way'

Officer Wiley cleared in fatal shooting of North Laurel man

Howard County

November 09, 2001|By Julie Bykowicz and Lisa Goldberg | Julie Bykowicz and Lisa Goldberg,SUN STAFF

Howard County Police Officer Timothy Wiley, who fatally shot a North Laurel man in September, committed no crime, a grand jury found yesterday as prosecutors implemented a new protocol for determining when an officer's use of deadly force is justified.

The procedure, which will send to the grand jury all cases in which the actions of an officer on duty cause death, places the decision-making in the hands of ordinary citizens instead of court officials who work closely with police on a day-to-day basis, officials said.

"It just seems like a cleaner way to do business," said Howard County Police Chief G. Wayne Livesay, who asked that a grand jury make the first call on police shootings, which are relatively rare in the county. "I wanted some consistency to the process."

State's Attorney Marna L. McLendon said such a policy, which has been discussed for several years, will increase "public confidence" for residents who might be concerned that police and prosecutors are too closely aligned.

"It's not just the state's attorney signing off," she said.

While certain cases - those that were too complex or obviously criminal - were taken to the grand jury in the past, McLendon said she has routinely reviewed and made decisions on cases that are "clean on their face." Under the policy, even the latter cases will be subject to citizen review, court officials said.

The Police Department and state's attorney's office have a memo detailing the change, but they still need to finalize the document, Livesay and McLendon said.

Still to be determined is whether all cases involving deadly force would go before the grand jury or whether it would just be cases with a certain result - cases that result in death or in injury, McLendon said.

Wiley, a seven-year veteran, shot Harold Clifton Schwartz, 43, once in the upper body Sept. 10 after repeatedly ordering him to show his hands, police said. A caretaker had called 911 saying that Schwartz was trying to break into his parents' house on Guilford Road in Kings Contrivance, police said.

An initial police dispatch indicated that Schwartz was armed with a handgun, and although police did not find a handgun at the scene, they did turn up a razor blade in the wooded area where Schwartz was shot. Police think Schwartz might have used it to cut his throat.

Timothy J. McCrone, the police union lawyer who represented Wiley, said yesterday that he was not surprised with the grand jury's decision. While most officers involved in deadly force cases are kept off the streets until the investigation is complete, Wiley returned to his job as a K-9 officer several weeks ago, McCrone said.

His early return to work "expresses the chief's confidence in every aspect of Wiley's decision-making on Sept. 10," McCrone said.

McCrone said that while the grand jury process lengthens the amount of time it takes to resolve a case, he had no problems with taking such cases to the citizens.

"A grand jury ruling gives an additional quantum of support to officers," he said.

James F. Fitzgerald, president of the Howard County Police Officer's Association, called the procedure "a wise way of doing things."

Howard County appears to be unique in the Baltimore area in its view of the grand jury's role in deadly force incidents. Prosecutors in Anne Arundel and Baltimore counties and in Baltimore City make the call on every police use-of-force case.

"That sounds like a good course of action," Anne Arundel County state's attorney's office spokeswoman Kristin Riggin said about Howard's policy. "That way there won't be any question of favoritism."

But other prosecutors and some legal experts saw benefits to leaving the decision-making in the state's attorney's hands.

"In a clear-cut case where the officer acted appropriately, there's no reason to make the officer wait for a grand jury," said Baltimore County Deputy State's Attorney Sue A. Schenning. Testifying before a grand jury takes an emotional toll on an officer, Schenning said, which should be avoided in cases where the officer clearly acted within the law.

Baltimore County forwarded all of its fatal police shootings directly to a grand jury for many years, Schenning said, but they switched to prosecutor review about 10 years ago.

"No matter what, every one of these cases is reviewed in great detail," she said. Tom Perez, an assistant professor at the University of Maryland School of Law and former deputy assistant attorney general for civil rights at the Department of Justice, said the public should keep in mind that the prosecutor still exercises control over grand jury proceedings.

"In the end, the state's attorney's office is going to have a substantial role in determining whether or not a particular use of force was justified or unjustified," he said.

Perez said Howard County's policy to automatically forward use-of-deadly-force incidents to the grand jury could be a waste of time in some cases.

"Having blanket rules - from zero tolerance drug policies to this one - have a lot of inefficiencies built into them," he said. "There are downsides to those methods of operations."

In Anne Arundel, like Howard, police shootings are rare, Riggin said, but when there is one, the prosecutor's office reviews it and decides whether it should go before a grand jury.

If there is even the thread of a question of whether an officer acted inappropriately, Riggin said the case goes to a grand jury. She said the last fatal police shooting case went to a grand jury, which declined to indict, because "it was a case where someone on either side could have alleged favoritism or called into question our motive."

Livesay said he thinks a grand jury is the best place for the decision-making.

"It'll give the officer a better sense of the outcome - that way there won't be any question about it," he said.

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