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Criminal Justice Update

The Right Way

Following protests in Akron over the fatal police shooting in June of 25-year-old Jayland Walker, Ohio Attorney General Dave Yost appealed for patience.

“Mr. Walker’s family, his community and every Ohioan deserve to know why this tragic outcome occurred,” Yost said in a video released by his office. “We have to let our investigators find the whole picture and seek the truth, the whole truth, because that’s what we all want. … In these circumstances, the shock and pain are immediate, and patience is difficult. But these investigations cannot just happen overnight.”

The Walker case highlights an inherent tension that lies at the center of any investigation of a fatal shooting at the hands of police: Although family and friends of the victim as well as community leaders, citizens and news organizations might demand quick answers, investigators and prosecutors tasked with finding those answers require time and patience to do their job thoroughly and completely. It’s a process that by its very nature — methodical, confidential, frequently lengthy — invites questions from a suspicious public.

To ensure an independent, impartial, transparent review of the Walker shooting, the Akron Police Department requested that the Ohio Bureau of Criminal Investigation, part of the Attorney General’s Office (AGO), conduct the official inquiry. As of Sept. 5, the case is one of 44 officer-involved shootings that BCI has investigated this year. Additionally, the Summit County prosecuting attorney has asked the AGO to serve as special prosecutor in the case.

Walker died in the early hours of June 27. Akron police said he drove away from an attempted traffic stop and that a gunshot came from his car during the ensuing chase. Eight officers fired shots. The Summit County medical examiner said Walker was hit dozens of times.

“We will move this investigation forward as quickly as we can,” Yost said, “but we’re going to do it right.”

The specifics of the Walker investigation cannot be discussed until it is completed and the case adjudicated, but the process that BCI follows is the same for every police shooting, said Mark Kollar, BCI special agent-in-charge and statewide coordinator for officer-involved critical incident investigations.

Kollar is the author of “Best Practices for Investigating an Officer-Involved Critical Incident,” published by the Ohio Attorney General’s Office, and has investigated more than 200 of these incidents.

Even though the investigative process is the same, each case is unique and involves varying degrees of complexity. Furthermore, some of the variables that affect the length of an investigation are out of BCI’s control. The same holds true for the AG’s Special Prosecutions Section once it receives a case.
So, what are those variables? What factors determine whether a fatal officer-involved shooting takes six weeks, six months or a year or more? 

To be clear, BCI acts as a fact-finder only: It does not determine whether an officer’s use of force was legally justified. Nor does it have any role in determining whether an officer is disciplined; that’s up to each police agency involved.  

The process BCI follows is extensive and complex and can run up against speed bumps at any point along the way, but generally it involves documenting the crime scene, collecting and processing evidence; interviewing the officers; questioning witnesses; compiling video and electronic evidence; and researching the officers’ background and training. BCI also works closely with the coroner or medical examiner to evaluate the autopsy and toxicology reports.

Once the investigation is complete, BCI delivers its findings to the prosecuting attorney.

“You simply cannot rush the process,” said James Lowe, chief of the Special Prosecutions Section. “You have to run out every ground ball.”

Some variables that affect the length of an investigation seem obvious — the number of officers to be interviewed; the size and location of the scene; the number of potential witnesses; the amount of evidence to be analyzed, both physical and electronic; the number and type of lab tests involved; and the number of subpoenas and search warrants carried out.

But what’s obvious isn’t necessarily simple. Consider the officer interviews, an area largely beyond BCI’s control.

As with any person who is being investigated, officers have the right to remain silent. And if they do choose to speak, they can decide when. The release of police body-cam videos and dash-cam videos soon after a shooting, which some municipalities now require, can further influence whether or when an officer talks to BCI.

“We have had situations where officers waited three months before they finally agreed to talk to us,” Kollar said. “And that could be because of their mental state, or maybe they’re just not prepared to talk, and that is their right under the law.”

Other factors that affect the length of an investigation are less obvious. Caseload is one. A BCI investigation “is a massive undertaking,” Kollar said, involving crime-scene staff, special agents, investigators, crime lab scientists and criminal intelligence analysts. But because BCI is constantly taking on new cases, resources routinely need to be adjusted.

The same is true of any external agency that BCI relies on to complete its work, such as medical examiners and county coroners. Forensic toxicology testing, a component of an autopsy, is a protracted process to begin with, typically taking weeks or longer to complete; but if a coroner or medical examiner is struggling with backlogs or staffing limitations, BCI might not receive a final autopsy report for months.

Of all the elements that go into an investigation, however, reviewing video evidence is among the most time-consuming for BCI. This evidence includes dash-cam and body-cam video, surveillance video from public and private sources, cellphone video and video retrieved from social media. All of it has to be reviewed in its entirety. As an example, Kollar points to dash cams that might run for hours after police cruisers have arrived on the scene. 

“Multiply that by, say, five cruisers with four hours of video each,” Kollar said. “We need to review all of that because maybe somebody walks in front of a cruiser two hours into a video and says something relevant to the investigation.”

BCI frequently relies on the Ohio Organized Crime Investigations Commission (OOCIC), also part of the Attorney General’s Office, to enhance the videos, add audio waveform bars and time codes, combine and synchronize multiple camera angles into a single presentation, and create video timelines and animated presentations.

“Those sorts of things take a great deal of time,” Kollar said. “It might be two months before they get back to us.”

Once OOCIC finishes its work, BCI analysts go through the videos “literally frame by frame, second by second, camera by camera” to write a report documenting what it shows, Kollar said. “For example: Can we tell if an officer is firing? Can we see the slide moving back on the gun? Can we see a puff of smoke coming out of the muzzle or a cartridge casing being ejected? Is there a spike on the audio waveform bar that indicates an officer was firing a shot at a particular moment?

“When you consider that most body and dash cams record 30 frames per second, all of this becomes massively time-consuming. But questions will be asked that we need to be prepared for.”
Throughout an investigation, the county prosecutor or the attorney general’s Special Prosecutions Section coordinates with BCI to ensure that the specific evidence that is needed to present to a grand jury is in hand and that the necessary witnesses have been located.

But even after BCI presents its findings — which can amount to a report totaling hundreds and hundreds of pages — it isn’t uncommon for the prosecution to request additional information. Maybe a person needs to be re-interviewed, maybe an additional lab test needs to be run, maybe further clarification is needed from the coroner, or maybe a witness has gone missing and needs to be found.

“It’s very important to make sure each and every step of an investigation is covered,” Lowe said.

“Everything you can do needs to be done. The goal is transparency, to give the grand jury all the facts.”
Even scheduling the grand jury can factor into the length of an investigation. Grand juries in populous counties meet daily because of the caseload; in rural counties, they meet more sparingly — in some places, maybe only once a month.

“When you put everything together, it takes a long time to move a complex investigation from start to finish,” Lowe said. “Every little step can add something, but it’s our job to ensure that justice is done regardless of the time it takes.”