Virtual Meeting Highlights:
The purpose of the meeting was to discuss and vote on recommendations to the Governor. Task force members had previously voted in writing on various proposals and then had the opportunity to add proposed recommendations. At today’s meeting they voted on the recommendations that hadn’t previously been approved by a majority vote. The ultimate goal is to draft legislation to be considered in state legislature.

Recommendations and results of voting (bold = passed; unbold = failed)

Purpose of organization

• Conduct independent, fair and thorough criminal investigations of police use of force that are transparent and accountable
• Establish real and lasting change in policing
• Audit practices and investigations
• Perform, support, or review administrative investigations

Purpose of legislation (top recommendations)

• Require investigations be conducted through an anti-racist lens
• Investigation process must be fair, thorough, and unbiased,
• Community and gov’t entities w/ a role in the investigation s/b transparent
• Police must treat the family of the person killed or injured w/ respect and dignity
• Investigations must be credible and completed in a timely manner
• The director, investigators, and all state must be people of high integrity and character
• Acknowledge the history of systemic racism in our criminal justice and policing systems
• Investigation s/b led by a director whose values and background ensure he or she actively works against racism, will call out racism, and take action if identified in any investigation, will use a multi-sector lens to develop strategies, understands and is able to collaborate w/ others including the community, understands trauma informed interviewing and will ensure the investigations will be fair, thorough, and impartial
• Investigations s be trauma-informed, w/ an understanding of mental health
• Pursuit of systemic justice
  • Team would respond to scenes to make sure evidence is being gathered appropriately, also make sure investigative protocols are being followed
  • Can’t look at each case individually---need to see patterns of bias and corruption to be able to make recommendations for systemic change
• Create an oversight body to make sure that I-940 is followed
  • Some task force members aren’t interested in propping up I-940
  • I-940 isn’t an adequate solution
• Entity must be insulated from politics
• Organization shall be accountable to community led anti-racist organizations
• Agency must have a path to completely civilian staff and leadership [discussion moved to later; not voted on]
• Independent investigations don’t involve police investigating police
  • Once hired/appointed, investigators will technically need to be awarded law enforcement authority

Organization

• Separate agency
• Division w/in AG’s office (most problematic option from a legal standpoint)
• Modify current I-940 process
• Division w/in WA State Patrol

Structure

• One headquarters w/ Regional Response Teams responsible for being first on-site to secure scene, etc.
• Two headquarters, one in West and one in East w/ emphasis on teleworking
• For the first ten years, the civilian investigative team will be supported w/ law enforcement advisers (moved to scope of investigation discussion)

Types of cases

• Cases to be investigated
  • Deadly/lethal force
  • In-custody deaths
  • Serious use of force/bodily harm
  • Collect data on police use of force (moved to data collection system section)
    • Being done through another bill?
  • Review entire incident and make recommendations for changes to reduce the likelihood of similar future incidents
  • Ability to expand scope in the future
  • Sexual assault
  • Retroactive investigations/audits
  • All serious police misconduct
  • Hate crimes
  • Any felony
  • All 940 cases should be reopened, and there should be a pathway for any cases before 940 to be reviewed by this new agency (not sure if passed, vote was close and not reported orally)
  • Agency has authority to investigate all suspected crimes by cops, but must investigate deaths and serious injury in custody, sexual assault, domestic violence [tabled until next meeting]

Prioritization of cases [tabled until next meeting]

• Deadly/lethal force
• All serious police misconduct
• Case-by-case basis
• Specific criteria s/b established
• Sexual assault
• In-custody deaths
• Retroactive investigations/audits

​Additional topic: Distinction between authority to investigate any misconduct but mandate to investigate certain crimes

Virtual Meeting Highlights
It was hard to tell who was present because it was virtual.  Everyone followed the rules around keeping themselves muted and seemed to use the hand raise feature in order to ask their questions. The chat box (when visible) seemed to be active, and the task force members were definitely asking questions of the presenters. I have no idea if all members of the task force were present; there was no roll call, and there are a lot of members of the task force (23 according to the website).
This was an extremely dense meeting, but also really interesting. I appreciated that the chat box was visible for the majority of the meeting (though I wasn’t really looking at it), but it was partially covering the chart they were looking at, and it would have been more helpful for me to see the chart in order to take notes/follow along.
The meeting lasted approximately 3 hours and 45 minutes. There was no public input, beyond the fact that task force members are community members as well.
Summary of Discussion
Welcome and Review Ground Rules (LueRachelle Brim-Atkins, Facilitator)

• Land acknowledgement
• Grounding thought “Putting your own self-interest at risk for what you believe is right” (Prof. Derrick Bell)
• Volunteer reads ground rules, Yasmin Trudeau

 
Overview: Today’s Meeting (Sonja Hallum, Senior Policy Advisor, Governor’s Policy Office)

• Meeting #9 of the task force
• Purpose of Task Force: Develop recommendations for the Governor to improve independent investigations of police use of force. Recommendations will be used as the basis for legislation, which the governor will propose in the upcoming legislative session.
• 2 remaining meetings after this one- Oct 29, Nov 5: these meetings will be to discuss recommendations. Sent out a worksheet with over 170 options of potential recommendations for discussion—does not include ones that would be added by the task force while completing the worksheet (WOW!). Want to use the worksheet as a way to identify things they agree on already so they can use their remaining meetings to discuss things that have less agreement.
• Might increase the time for each of the remaining meetings (currently 3-4 hours per meeting)

 
Presentation on Criminal Investigations and Prosecution
Presenting: John Allgire, Detective, Whatcom County Sheriff’s Office; Eric Drever, Chief, Tukwila Police Department; & Eric Richey, Whatcom County Prosecuting Attorney

• John Allgire, Major Crimes Division
  • He has over 3200 training hours
  • Brief overview of homicide investigations and training and experience used
  • General homicide investigations, not police use of force investigations
  • Newest members of investigation team will not be lead investigator
  • Evidence often has to stand up to the scrutiny of regular court and appeals court
  • Homicide investigation starts with the victim—and lots of questions: cause/manner of death, who does the victim associate with, do we have a suspect and/or motive, do we have witnesses
  • Establish crime scene(s) to determine where to look for evidence and what to collect
  • Write warrants to have the legal authority and ability to collect evidence
  • Evidence directs where they go next
  • Reports to document process for prosecution and defense
  • Break investigation into tasks- interviewing people, following up on tips, search warrants, crime scene investigation
    • Interviewing suspects: Miranda rights, record interviews when they can, but WA is a two-party consent state for recordings, Miranda rights needs to be on the warning, suspects can stop the interview at any time
    • Witness statements: eyewitness statements, or people who heard/saw something right before or after the crime; sometimes witnesses don’t want to speak to the police; want them signed so they can’t change their story without penalty of perjury
    • “Law enforcement is about people”
    • Search warrants: US 4th amendment, but also WA state constitution Article 1, Section 7, which is more restrictive than the 4th amendment; warrant is made up of summary of investigation at the time, asking the court for an exception to the law; must me narrowly focused; mistakes in warrants can mean exclusion of evidence; mistake in executing the warrant can mean exclusion of evidence; common search warrants: cars, homes, DNA, cell phones/electronics, social media
    • CSI: goal is to collect items in a manner that preserves the evidence for trial; crime scene photography; lots of training and procedures in order to preserve it for trial and not contaminate it; trace evidence requires lab analysis; weapons, ballistics; procedures for collecting cell phones and other electronics
    • Chain of custody for evidence
    • For prosecution, but also defense
  • Report writing is extremely important: a timeline, an explanation, what they knew and when they knew it
  • Reports must be completely accurate, or testimony can be called into question
  • Goal is transparency
• Eric Drever
  • Valley independent investigation team member (1 year)
  • Managed professional standards division (4 years)- essentially internal affairs
  • Investigations are fact finding- to provide the prosecutor with the best opportunity to do their job
  • Not determining innocence or guilt
  • When an officer is involved, you have to throw your best at them, which is an independent team
  • Minimum experience is 3 years in conducting criminal investigations
  • Only way to properly investigate it to have the experience there to do the job without making mistakes, but sometimes mistakes still happen
  • Have to hold yourself accountable
  • Minimize mistakes
  • 50 people in department- investigators, admin, etc.
  • Don’t always have enough people because of added tasks for use of force: separate team that deals with just the officers who were involved, plus someone who has administrative oversight to make sure they are compliant with LEXA (not sure what that is), removing conflicts of interest, follow up after investigation with community representatives to make sure they are staying informed, informing the public weekly,
  • Even more workload, expertise, etc. to conduct independent investigations
  • Talked about a law that went into effect in January, but didn’t mention what the law was- something about transparency and credibility
• Eric Richey
  • Prosecution side
  • Local prosecutors go to the crime scene
  • Consult with officers, make sure things are done right- search/seizure, Miranda, search warrants
  • Medical examiner is often present- consult with them- do an autopsy
  • Once a case is filed, the prosecutors office takes over contact with victim’s family- victim witness coordinators
  • Charging: talked about RCW 9.94A411 (??)
    • Crime will only be filed if prosecutor believes it can be proved beyond a reasonable doubt to a jury considering all reasonable defenses
  • Prosecutors are cautious people
  • Pretrial release (Bail): State constitution requires that all be allowed to post bail except in capital cases, which is aggravated 1st degree murder
    • Ask for high bail in homicides because they believe people who commit homicides are dangers to the community and flight risks
    • $1 million range
  • Competency/Mental health: can be deemed not guilty by reason of insanity, placed in mental health hospital
  • Defenses: self-dense is almost universally the defense in homicide cases, often difficult to overcome when no eyewitnesses, sometimes an autopsy can prove self-defense wrong; second most common is diminished capacity due to a mental condition (person lacked the ability to form the intent to commit a crime)
  • Pretrial Motions: motion to suppress, motion to compel, deposition, etc.; can be brought by defense to limit the prosecutor’s case; if enough evidence is suppressed a prosecutor could not have enough evidence to try the case- case will be dismissed
  • Plea bargaining: might make sense because of less than optimal evidence, because a victim/witness doesn’t want to testify, because “it is the right amount of justice that a defendant should get”
  • Trial: “just like you see on TV”
  • Post-conviction: pretty much always appealed; state cannot appeal a not guilty verdict; winning an appeal is hard; prosecutor wins about 80%; can last a long time
  • Officer use of force reviews have similar charging and evidence collection issues; additional factor: determining whether an officer was within police standards when using force
    • Often reach out to officers outside investigating agency, prosecutors from around the state, to get advice
    • Each review is formalized into a document that is sent to investigating agency, press, and family; now written with an emphasis on whether the investigation complied with I-940
• Questions from Task Force
  • Darrell Lowe: IIT also looks at the behavior of the other person (trying not to call that other person a suspect, when it comes to officer use of force case—person the officer used force against); Lowe thinks there should be a second team that looks at this person’s actions, not IIT- who is looking at the actions of the officer
  • Posted a lot of questions in the chat (which we cannot see)
  • Mechanisms for accountability to prevent someone who wants to sabotage the “very fragile” investigation, beyond reports: concern about cops investigating themselves, might want to cover it up
    • Drever: cops want justice for everyone; don’t want someone who is committing crimes “in this uniform” to be in the ranks; credibility has been eroded
      • WAC 139-12- governs independent investigations- conflict of interest statements- remove anyone with even a remote conflict of interest from the investigation; also remove anyone from the agency that’s being investigated from the team
      • You’re investigating someone you don’t know
      • Could also have someone who wants to taint the case the other way—wants to see the officer be found guilty
  • How does an investigation of an officer involved case differ from a non-officer involved case?
    • Drever: Differences lie in the administrative aspect of all the questions that people are asking; people are not questioning whether officers want justice in non-officer involved cases; scrutiny is greater in officer involved cases so they have to add more checks and balances; want to make sure there are no questions of credibility
  • Issue with the premise that the only people who have the expertise to do these investigations are law enforcement
  • Has anyone looked at the investigations that have been done since I-940 was implemented—do they hit the high levels of best practices/expectations—community members have found big holes
    • Drever: has not looked at these cases, but is sure there are some bad cases across the county; PNW and West Coast—better than the rest of the country; still learning from I-940 and finding better ways to do things; wants an opportunity to fix law enforcements bad rep
    • Richey: has reviewed some cases from around the state; varying degrees of compliance with I-940 because it’s new; they’re working on it and doing better; getting community members involved in the right way
    • Allgire: wants public’s trust, wants transparency, wants to earn trust through communication; I-940 has created a process for communication and transparency
  • Questions for Richey: Do you believe that breaking the law should have consequences commensurate with the action they’ve taken to prevent them from committing a crime again
    • We don’t need to be hammering people
    • We need to focus on making our community safe
    • Discretion around where light touch vs heavy touch is deserved- systemic racism shows up
  • Consequences for violating I-940
    • There is nothing that requires agencies to follow the law
    • Can sue if they don’t follow Leteska (??) rules)
  • Civilian involvement in IIT process
  • Independent agency staffed with civilians who go through law enforcement training—could act as advisors for investigation—how would that be received?
    • Allgire: Crime lab are civilians—independent; there’s a framework; don’t know when book smarts turns into street smarts to ensure good training, and minimum mistakes

 
Panel Presentation and Discussion of Legal Issues Related to Investigations and Prosecutorial Authority
Presenting: Elizabeth Thomas, K&L Gates Law Firm; Bart Freedman, K&L Gates Law Firm; Mike McKay, K&L Gates Law Firm; Yasmin Trudeau, Office of the Attorney General; John Hillman, Division Chief, Criminal Justice Division, Office of the Attorney General; Eric Richey, Washington Association of Prosecuting Attorneys

• Goal: provide input about the potential legal issues for the various options for investigation and prosecution structures
• These issues haven’t been squared addressed by the courts
• These groups are providing various arguments that could be encountered—various opinions for the task force to consider
• If the system chosen is found to be unconstitutional, convictions could be overturned
• CHART: options- investigations, prosecution- color coded in terms of potential legal risk
  • Green: none
  • Yellow: potential issues
  • Orange: more significant or more likely potential issues—greater risk
  • Red: unadvisable
• Introductions: K&L Gates Law Firm (KLG), Attorney General’s Office (AGO), Washington Association of Prosecuting Attorneys (WAPA)
• WAPA Overall Findings
  • 39 separate prosecuting attorneys, divided on who does independent investigations; some believe community oversight is the election process—elect out the prosecutors if they do something wrong/if people believe they have done a bad job
  • Brief that supports WAPA positions: basis for the brief- “legislature may not by statute authorize another to perform duties of a constitutionally created office”
  • Agencies that might be replaced are described in the state constitution- we cannot create another agency to stand in for the constitutionally created agency (sheriff, prosecutor)
  • Concurrent jurisdictions- can stand in and assume some of the responsibilities
  • Exclusive jurisdiction- cases could be barred from being heard again
• KLG Overall Findings
  • Role: provide independent look at the law; independent and objective legal analysis
  • Want to find a way to improve the system, not advocating for any particular outcome
  • Does the state constitution make those roles (sheriff and prosecutor) exclusive? Can only sheriffs and prosecutors perform those roles? KLG says NO, not exclusive
  • Who else can perform investigations and prosecutions? Relatively broad authority on the attorney general and legislature to create tasks and assign them to the AG so with appropriate legislation, AG could carry out prosecutions and investigations
  • Constitution doesn’t bar legislation that would grant similar authority to a newly formed agency, but it doesn’t grant it either- closer call
  • Didn’t focus on practical issues, but thought about consequences of legislation that is later found to be unconstitutional- anyone convicted under statute could challenge their conviction
  • Ways to manage/eliminate that risk- test case under state declaratory judgment act to get court determination; seek formal opinion of AG’s office
• AGO Overall Findings
  • A little more conservative than KLG, but not as concerned about things as WAPA
  • Constitution itself is fairly vague, but WA state case law has narrowed it over time
  • Task force and legislature should remember the legal issues if a new entity is created
  • Most criminal cases are reviewed and prosecuted by city and county prosecuting attorneys –AG’s office has a small group of prosecutors- does not currently have the resources to take on these cases if that is the way the task force decides to go- currently needs to a referral to prosecute
• CHART: Investigation Possibilities
  • Separate agency in executive branch- similar to WA State Patrol or other state-level agencies
    • KLG: probably acceptable from a legal standpoint
    • WAPA: exclusive jurisdiction concerns; would need a constitutional amendment
    • AGO: in alignment with KLG- could be delegated to the governor to oversee another agency that only investigate these crimes
  • Separate agency not in executive branch (why it’s different)
    • KLG: constitution specifically describes powers for executive branch and AG- if not created within either, the questions are broader in terms of whether you’re infringing on constitutionally established agencies
    • WAPA: agree with KLG- WAPA is very concerned about this possibility
    • AGO: nothing to add- similar views to KLG- not a lot of clear authority on this
  • Division within AGs office
    • KLG: just as comfortable with this as an agency within executive branch- court has been clear that the legislature has authority to delegate certain duties to AG- could be conflict of interest issues that could be managed with careful legislative drafting and rulemaking
    • WAPA: major concerns about exclusive jurisdiction handles by someone other than the sheriff; conflict of interest concerns that could be managed, but still concerned; wants to talk about concurrent jurisdiction at some point
    • AGO: not as concerned as WAPA; limits of the office they foresee if office is tasked with these sorts of investigations (FROM THE CHART): Limited statutory authority/ no original criminal jurisdiction/ no commissioned peace officers; would need to be funded; legislature would need to identify certain categories as commissioned (look at Medicaid fraud control division)
  • Division within Auditor’s Office
    • KLG: non-starter; auditor’s office is only for financial matters; legislature does not have authority to confer other duties on the auditor’s office
    • WAPA: ditto
    • AGO: didn’t examine the question
  • Division within WSP
    • KLG: broad legislative discretion to defer duties on this office; no major problem; might need to be adjustments in the legislation through the legislature
    • WAPA: WSP has general authority and concurrent authority with the Sheriff’s office- if WSP is authorized to have concurrent jurisdiction over officer use of force cases, WAPA has no problem; can develop something like an internal investigation agency; problems if it becomes an exclusive jurisdiction of WSP
    • AGO: more aligned with KLG; WSP has general authority throughout the state; in practice they defer to local jurisdictions and let them police their own areas unless they are asked to come in
  • Officers investigating other officers concerns
    • WAPA: internal affairs officers treat things differently; they are going to investigate officers the way the task force wants to see them investigated
    • WAPA recommends a combo within WSP of peace officers and civilians that is designed to investigate officer involved shootings/officer use of force cases
  • Questions about Investigation Possibilities
    • If there’s no one who investigates the police and the police can only be charged by other officers, there’s no one you can call; do we need a constitutional amendment to change this?
      • WAPA says a constitutional amendment is necessary is you want a true independent agency
      • AGO concerns lie in that these are untested legal theories—there is uncertainty; they will defend the legislation to the best of their ability, whatever the task force puts forth
      • Constitutional amendment requires a 2/3rds vote by both the state house and state senate, and a vote by the people so it’s a process
      • KLG encourages the task force not to worry about a constitutional amendment at this point and worry about what they think is the best way to address this problem, and then let KLG/WAPA/AGO help you figure out how to get there
    • What does WAPA think is the solution to what the community demands?
      • Right now, WAPA is providing a legal analysis, but not necessarily an answer; thinks the concurrent jurisdiction in WSP would be a solution without needing a constitutional amendment
    • Examples of a non-exec branch agency?
      • State auditor’s office
      • AG’s office
      • Office of the Insurance Commissioner
    • History of WSP because it might be one of the best options (non-amendment)
      • Investigation piece might be in a different location than the prosecutorial piece
      • KLG says it makes sense because they do have the experience and the would bring in additional expertise particularly with office involved cases
      • Accountability is an issue with a separate agency—would it be an appointed position or an elected position? There’s already accountability in the WSP
      • WSP is the same problem of police investigating police
    • Whatever they decide, this office needs to have credibility within local law enforcement agencies, which the state patrol has
    • What if the WSP is part of an officer involved shooting/use of force case?
      • No different than IIT if there is an office within WSP
    • Concurrent Jurisdiction practicalities- if we have a separate agency created not within an existing law enforcement agency and there is an officer involved shooting, could that agency under a concurrent jurisdiction be able to be a lead investigator or would it require the sheriff to cede their jurisdiction in order for the separate agency to investigate?
      • A separate agency could be created without a constitutional amendment if it has concurrent jurisdiction
      • Concurrent jurisdiction means same authority as the sheriff, but not taking the authority of the sheriff
      • WAPA would like to talk about this more
      • KLG memo talks about AG and county prosecutor- what happens if there is a disagreement- judge makes a determination
    • Short term vs. long term solutions
      • Task force responsibility is to create the right system, then figure out the timing
      • Visioning, then the plan
• CHART: Prosecution Possibilities
  • KLG Intro: did the same kind of analysis that they did for the investigation side
  • WAPA Intro: same kind of analysis as for the investigation side- same concerns about exclusive jurisdiction on the prosecutorial side
  • Separate agency
    • AGO Intro: level of concern is greater with non-executive branch agency; whether the constitution allows authority of the county prosecutor to be usurped
    • Wants them to address whether there is any difference in level of constitutional concerns between investigations and prosecutions
    • Other agencies having been given authority (Liquor & Cannabis Board) or prosecutorial authority- if the constitution limits who can have investigative and prosecutorial authority, how can we have LCB authorized to enforce criminal offenses and how did the legislature create the statute that allows the governor to intervene in a case and ask the AG to investigate and prosecute a case?
    • KLG: had comfort with the agency outside the prosecuting attorney or the AG because the agency could rely on the AG to prosecute the case, which is how it works with some other state agencies
    • WAPA: analysis is the same- concerned about exclusivity, but okay with concurrent
  • Transfer of primary jurisdiction to AGs office
    • AGO: concern that the county prosecutors core function can’t be taken away- AG is also a constitutionally created office and the legislature can prescribe their duties- they are a light green
    • KLG: possible to draft legislation that describes a certain class of crimes that would be within a new agency within the AG’s office; narrow scope; legislature makes it clear why it’s in the public interest to transfer the prosecutorial authority for these crimes only to the new agency within the AGs office
    • WAPA: concerns- could be seen as taking county prosecutors core duty- constitutional amendment would be required
  • Concurrent jurisdiction for the AGs office
    • Generally okay
  • Special prosecutor designated by the legislature- designated for specific cases (likened to statute where governor can ask the AG to intervene)
    • KLG: did not analyze this question
    • WAPA: very concerned- would need amendment
    • AGO: greatest level of concern for AGO
  • Special prosecutor designated by the governor on individual cases
    • KLG: no problem with this approach; agree with AG that this would be least risky if someone who has the constitutional authority to prosecute, like the AG, was designated as special prosecutor
    • AGO: agrees with KLG, but constitutionally untested
    • WAPA: concerned about someone stepping into the shows of the county prosecutor, even if the Governor is asking
  • Questions about Prosecution Possibilities
    • Possible to have a policy fail safe- concurrent jurisdiction AND exclusive jurisdiction so if there is a challenge to the exclusive jurisdiction the agency could continue working under concurrent jurisdiction?
      • KLG: maybe a severability provision that would operate under that instance
      • Should be asked to nonpartisan legislative staff
    • Transfer of primary prosecutorial decision making to AG- would this change the statute (change from authority is in the hands of county prosecutor to in the hands of the AG)
      • Yes, this was the intention
      • Primary decision making: case would be investigated and then turned over to the AG, not the county prosecutor; Concurrent: case could be investigated and then both AG and county prosecutor would have jurisdiction and the conversation would be about sequencing (who would get the case first, how would that work)- under current statute Governor can ask AG to engage of the case- example of concurrent jurisdiction
    • What’s the difference between AG having primary decision making authority (that transfer) and having a special prosecutor in the AG’s office- benefits and costs
      • AG is recognized in the constitution whereas a special prosecutor is not created by the constitution
      • County prosecutors and AG have authority to specially deputize any attorney
    • Concurrent jurisdiction could offer two different analysis and expose the decision making process of both offices- it may not be as burdensome from a community perspective
      • Concurrent jurisdiction is not necessarily a bad thing
      • US attorneys have concurrent jurisdiction with local prosecutors regularly
    • Concurrent jurisdiction as an oversight function
      • So if a prosecutor opted not to file charges, an authority could review that case and make a separate charging decision
      • WAPA says that the AG should be that authority
    • Concerns about how prosecutors manage cases- do prosecutors believe there is a conflict of interest to prosecuting officer involved shooting/use of force because they have a close relationship with police officers? If not, how can the public be reassured that the prosecutors have the public’s best interest in mind?
      • WAPA: when prosecutors know the officer, they say there is a conflict of interest and give it to someone else; the legislature can define conflict of interest for prosecutors and make recommendations about what prosecutors should do, and say where it gets moved if there is a conflict
      • Office involved shooting could be named as an inherent conflict
    • Can prosecutorial discretion be eliminated (reference to SIU in Ontario)?
      • AGO: rules of professional conduct in WA prevent them from filing a charge if they don’t believe there is probable cause (unethical); if there’s not sufficient evidence, it will get dismissed; also need to prove it beyond a reasonable doubt
        • If there is sufficient evidence, can we get rid of prosecutorial discretion?- you MUST prosecute the case- that is what the statute says
        • Would need to determine how to define sufficient evidence, which could lock you in
      • WAPA: not possible for legislature to take away prosecutor’s discretion; constitutionally protected discretion
      • SIU in Ontario can make a recommendation that the prosecutor could charge
        • Peer review process from WAPA or another entity to push prosecutor
        • WAPA: no problem with recommendations
        • Legislature could make recommendations that cases are charged within a certain amount of time, etc.
    • Task force wants an independent agency to address any criminal activity by officers- is it possible to have broad concurrent jurisdiction combined with narrowly defined exclusive jurisdiction?
      • Broadly: can investigate pretty much anything
      • Exclusive jurisdiction for deaths and serious injury at the hands of offices
      • KLG: Different thresholds for crimes against persons vs. crimes against property, so it might be possible
    • Coroner inquest statute
      • Coroner can ask a judge to convene a petit jury
      • Not a prosecution, but a detailed fact finding
      • Coroner could step in if a prosecutor decides not to prosecute
      • In some areas the prosecutor is the coroner
      • Coroner can also act as sheriff?
      • Example of legislature giving another authority the ability to investigate homicides
      • This statute predates the constitution (it’s been amended since though)
      • WAPA/KLG/AGO: has not reviewed this recently, but it’s interesting
    • Prosecutorial discretion standard for crimes against property vs. crimes against persons
      • More latitude when a person’s life is involved
      • WAPA: “sufficient to justify a conviction” is not well defined; prosecutors generally want to be able to prove their cases beyond a reasonable doubt because that is when a jury can convict
    • If the agency is in the executive branch, can we guarantee a certain level of funding, even if there are changes to who is in office that might lead to an attempt to defund the agency?
      • AGO: you can’t obligate future legislatures to do anything since they decide the budget
      • Legislature produces the final budget, not the Governor
  • There will be follow up conversations from what was put in the chat

 
Closing Comments and Adjourn

• Worksheet they need to fill out
• Survey to extend the time for the next two meetings

Virtual Meeting Highlights:
Attendance was taken and the group reviewed ground rules for working together.  There are 19 ground rules all having to do with working together, being respectful and considerate of each other.
 
Special guests today included State Senators and Representatives who gave presentations on bills in progress and then had Q&A.
 
Presentation by Senators Pedersen and Dhingra
Senator Jamie Pedersen and Senator Manka Dhingra discussed three draft bills that will cover the process and conditions under which decertification of police officers will occur when bills are passed.  Bills will be presented in the next session starting in January.  All three bills work together.  The bills also cover peer intervention training, how violation of protocol is reported, how it empowers one to report and be accountable.  There was discussion about prosecutors and officers needing a culture change.
 
The Governor wanted to know what will happen if an information request is not fully complied with and also if the bills will work retroactively.  It was clarified that the penalty on a local police department for not complying with an info request is $10,000.  Additionally, the bills will work retroactively.
 
Kimberly Mosolf wanted to confirm that anyone can bring an issue to the Commission - law enforcement folks as well as citizens.  The answer was yes.
 
Livio De La Cruz liked all the bills and said they needed to keep the families affected in mind.
 
Waldo Waldron-Ramsey also wanted to confirm that the bills will work retroactively.
 
James Schrimpsher said it was important that there was consistency/standards throughout the State.  Also that the term limits on commissioners should be reviewed.  Currently they are 6 years but maybe it should be 2 or 3.  Also he said there was an elected sheriffs loophole that the Senators should look at.  He said there tends to be an urban/rural divide and that Senators could look at what the State of Oregon is doing.
 
Puao Savusa wanted to know if the bills applied to officer conduct when they were off duty.
 
Monisha Harrell gave an example of how an officer can/did intimidate citizens that brought a complaint against him.  Also wanted to confirm that the bills applied to officer conduct while off duty. It was explained that every officer in the State who must be certified to work will be covered under these bills. 

Drafts of the bills were distributed and all were asked to review and provide feedback.
 
Discussion lasted one hour.  Comments in chat box were to be forwarded to Senators.  The group took a ten-minute break.
 
Presentation by Reps. Entenman, Goodman, Johnson, Lekanoff, Lovick, Ramos, and Thai
Representatives Entenman, Goodman, Johnson, Lekanoff, Lovick, Ramos and Thai were introduced.  They too discussed policing bills they were working on, which are being drafted and should be available for review in December. They then opened it up for Q&A.
 
Chris Jordan said that we needed to focus on the demilitarization of the police force (equipment, training, de-escalation tactics, etc). Look at hiring from schools as a career path, not just ex-military.
 
Sanetta Hunter said that they should make sure they get community input.  They are meeting/have met with police unions, youth groups, scholars, WA for Black Lives, and met with community advocates - but not individual citizens.
 
Jim Bloss wanted to know when the bills will be ready and was told in December.
 
The Governor wanted to know about tear gas.  He was told they are no longer using tear gas and that this was one of the many banned substances in the new bills.  What they do use is pepper spray.
 
Waldo Waldron-Ramsey said it can be difficult for prosecutors to bring charges against the police.
 
Puao Savusa wanted limited use of force covered, giving alternatives for situations.
 
Livio De La Cruz said there was a need for folks to change culture.
 
Teresa Taylor said that funding for trainers is an issue.  Also officer support for PTSD, etc.
 
Jordan Chaney said you need to consider the affected family and address the psychological aspect.  Need to communicate to victim’s family, possibly provide compensation fund for grief counselling.  Need to center the community in these situations.
 
Procedural justice approach.  Treat a person like a human being.  Honor their dignity.
 
This section of the meeting ended at 4:25pm.
 
Wrap-Up
The last part of the meeting focused on how they were going to manage the last three meetings scheduled.  The staff wanted to know how they can help the Task Force tackle the recommendation phase.  The subject for the next meeting is Legal Issues and Prosecution issues.  The last two meetings will focus on recommendations to be developed by the Task Force.  These meetings are to last 4 hours each.  The staff shared a draft structure - a worksheet that the Task Force could use to organize ideas, provide input and then structure their discussions from.  The staff wanted to know if this worksheet could be helpful and used for these last two meetings.  The Task Force voted to review the worksheet and use it as a guide for discussion.
 
The meeting ran until a little after 5pm.

The Task Force consists of 24 members, but I don’t believe all were there.  Attendance was not taken or was not taken during the TVW viewing time.
 
The meeting was very organized.  From viewing the minutes of previous meetings all nine meetings have been planned with agendas to cover a specific topic.  Previous meetings focused on the current system and investigative systems in other places in and outside the USA.
 
Today’s meeting objective was to discuss what the jurisdiction and powers of the investigative body should be. 
 
There were three guests speakers, some general Q&A for each speaker and then four breakout groups to address three questions.  After the breakout groups they all got back together to share results.
 
Guest speakers: Todd Foglesong (Professor Univ. of Toronto); Nick Hardwick (Univ. of London) and Wanda Perez Maldonado (Formal Chief of Investigations, NY). Guest speakers each shared knowledge on what different investigative units jurisdiction and powers are. They vary in size and scope.
 
Break-out group questions

1. ​What do you think the jurisdiction and scope of the investigation should be and why?
2. What do you think the powers and duties of the investigative team should be?
3. What is the cut of the involved agency?

It seemed that all had an equal voice in the break out sessions.  The general consensus was that the investigative unit’s jurisdiction should be broad rather than narrow in scope and they should have all powers needed to investigate (issuing subpoenas, accessing records, etc.).  Arrest authority seemed to need further discussion.

(Virtual) Meeting Highlights:
 
There were three presenters at this meeting:  The first was Professor Todd Fogelsong, from the Munk School of Global Affairs and Public Policy, Toronto. The second was Nick Hardwick, who was one of the original members of the Independent Office for Police Conduct in England and Wales; and the third was Wanda Perez-Maldonado, former chief of the New York State investigative unit housed with the NY Attorney General’s office. 
 
Facilitator Sonja Hallum, Senior Policy Advisor for the Gov., stated that today’s meeting is about “process”; the powers and jurisdiction of the state investigative unit.
 
Questions brought up by Professor Fogelsong:  Whose participation matters?  Can the Commission create charges?  What is the time horizon?

•      The reputation of the Commission matters, that is, with justice officer or mayors.
•       The Commission might be seen as a ‘specialist body’ like an expert organization. 
•       It may be a challenge to get the right amount of expertise.
•       The Commission may relieve pressure on other entities. 
•       But it could also become a scapegoat for problems that don’t ‘belong’ to it.
•       The Commission has to make some contribution to systemic problem within policing.

  
According to Mr. Hardwick, England/Wales Independent Office has the broadest possible administrative and criminal mandates. He noted that in England, only 5% of the police are armed, as are few civilians.
 
Chris Jordan – How can we get to illegal stops?  There are so many ways to create situations to target (profile) individuals, and then instigating and provoking conflict.  How can we address the profiling and fabricating of offenses?
 
The question of jurisdiction:  Commission needs to investigate what went wrong here; how a whole series of events can lead to a disastrous outcome – and how these missteps can be corrected.  What was in the police officer’s mind at the time he shot? Anything a police officer could do, the investigators should have the same power.
 
According to Mr. Hardwick, the Commission in England/Wales was the hardest & most difficult job he ever had.
  
According to presenter Wanda Perez-Maldonado, the Special Investigative Unit set up in the NY Governor’s office was created after the Eric Garner case in July, 2015.  Its scope was limited to cases when an unarmed civilian was killed by a police officer.  The team is made up of attorneys, prosecutors, and investigators. At first the DA’s offices were distrustful of the NY Governor’s Investigative unit. As of April, 2021, the Special Investigations Unit will handle all cases where a death has occurred as a result of interaction with police or correction officers. It is important that there is transparency of reporting. We want to determine everything that happened from time of 911 call – what initiated that call? In terms of officers infringing on citizen’s rights, body cameras have been very helpful.  Other surveillance cameras in the area are also helpful. Further down the chain, NY DA’s have Public Integrity offices, and police forces have “force investigation units” for the whole city.  They are responsible for drafting administrative charges, and the AG’s office also makes recommendations. 

General questions: 
James Schrimpsher, Algona P. Chief, VP of Wash State Fraternal Order of Police. 
How can we change the culture?

Teri Rogers Kemp, attorney:  Can the unit determine if it was an execution?

Wanda Perez-Maldonado:  There’s always a concern about whether we take a statement from the officer.

Nick Hardwick:  We have a conduct officer who has to get a statement from an officer within ONE hour.  We go where the evidence leads us.  You need to be seen not working for some other agency but acting independently. 
 
Wanda Perez-Maldonado, in response to Waldo Wadron-Ramsey, NAACP Wash/Alaska:  There needs to be more video cameras in correctional facilities.  The good part of body-cams is that they have both video and audio.  Cost is a factor in the prison systems right now.
 
Nick Hardwick, on UK – Corrections officers there do have body cams.  And a majority of police and corrections officers like the body cams. In the UK, 20% of their investigators are retired police.  There is an extensive training program, including implicit bias. 
 
Question from Livio de la Cruz, board member, BLM Seattle:  Do you cover instances of corruption?  Nick H./Wanda P-M – These cases have big resource requirements. Wanda Perez-Maldonado's committee takes over from local D.A.s.  General corruption of a police department is handled by the NY AG’s office. 
 
Comment by Kim Mosolf, Disability Rights:  Commission needs to listen to family members about the incidents. 
 
The task force members move into break-out groups:

1st break-out discussion
What should the jurisdiction and scope of the investigation be and why?
Answer:  Body needs to do the investigations, and refer back to the Department if it is administrative in nature. 
Jim Schrimpsher, Algona:  A majority of officers voluntarily come in and give an oral or written statement (95% of the time).
 Livio de la Cruz:  The scope should be as broad as possible.  The ‘Brady reform” and its implications were discussed.
 Nina Martinez:  The scope should include domestic violence.
 Livio de la Cruz:  Corrections officers should be included.
 
Scope:  Commission should be able to recommend RCW changes to the Legislature.
Puao Savusa, Seattle Office of Police Accountability:  Findings are posted on our website.
The findings of the body should be forwarded to the relevant prosecutor.  Whatcom prosecutor says the body should have the ability to arrest. 
 
Duty of the police department involved:

1. Report use of force, including securing the scene, identifying witnesses and victims;
2. Preservation of all records and evidence;
3. Proper notification to investigative unit;.
4. There should be collaboration between Commission and police dept.
5. The Commission should have full legal authority from State of Wash. to accomplish the stated mission. 

 
2nd break-out discussion
Darrel Lowe, Chief, Redmond Police Dept.:  We should be able to see all date, including prior disciplinary actions.  This should be a full criminal investigation.  The investigative body should have anti-racist training.
 
The body should start out with a scope that can be scalable over time.
 
Monica Alexander, advanced training manager of CJTC: We should focus on criminal investigations, all criminal acts involved in-custody deaths.  Investigative group should have full powers.
 
3rd break-out discussion
Investigative group should start with criminal investigations, including all fatal shootings and serious body harm.  Scope should start with felonies. Powers of the investigative team: Access to all records; be able to issue subpoenas; recommendations on charging.  Should go to the prosecutor. Perhaps we should consider a regional response team under the AG’s office. 
 
Question from Emma Catague, community police commission, Filipino Community Center, Seattle:  How do you connect with community members? 
Wanda Perez-Maldonado:  Our team includes advocates and counselors.
 
Teri Rogers Kemp, Attorney:  For the make-up of this body, we must acknowledge and address the issues of race, and check for any extremist views. 
Waldo Waldron-Ramsey, NAACP – Members should have anti-racist training.
 
Nina Martinez to presenters:  Have independent investigations reduced police violence?
Wanda Perez-Maldonado:  “Legal justification” law in New York makes it difficult to prosecute. NY has a “crime victims assistance” manual.