Posted: Sep 21, 2024
By Mike Carter
The Seattle Times
(The Seattle Times) — A King County program meant to provide answers for families of those killed by police — revised in 2018 to broaden its scope and address inequities — remains broken and should be fixed, replaced or abandoned, say prosecutors and private attorneys involved in the process.
The coroner’s inquest program is unique in Washington and the United States because it impanels a jury to review the circumstances around every law-enforcement-related death. The 2018 revisions made the program more accessible to the families of those killed, providing them with an attorney, and expanded the scope of the inquiries in response to protests that the old process was tilted heavily in favor of police.
However, the revised process has been buried in insurmountable delays and the courtlike setting has become more adversarial than ever, leading to family boycotts and complaints. Some of the system’s biggest proponents are now among its sharpest critics.
They include one of the architects of the revised program and one of its first administrators, as well as King County Prosecuting Attorney Leesa Manion. All of them have independently concluded the inquest process — intended to provide a neutral, fact-finding hearing into the who, what, why, where and how of police-involved deaths — is a failed public policy experiment.
Seattle attorney Karen Koehler, who represented the family of Charleena Lyles at an inquest in 2022, previously advocated for inquests alongside her mentor, civil rights attorney Lem Howell, when they offered an opportunity for a public airing of facts around police-involved deaths.
“But this new process is a mutation of that,” Koehler said. “It’s so adversarial, and it’s not equal. Not ever.”
King County Executive Dow Constantine, who has championed the inquest process, declined to be interviewed. He said in a statement that the “backlog is a real problem” — mostly the result of litigation and the COVID-19 pandemic — adding that the county “is developing a set of ideas to expedite the process, clear the backlogs and eliminate any conflict” with the Prosecuting Attorney’s Office. He didn’t offer details or a timeline.
A growing backlog
For inquests to be meaningful, officials have recommended they be held within 90 days of someone’s death.
The current wait is between four and seven years.
“You know the saying, ‘Justice delayed is justice denied?’ It is profound here,” Koehler said.
Lyles, a 30-year-old pregnant mother with mental illness, was shot and killed by Seattle police in 2017, the same year Constantine halted the inquest process in response to complaints that it unfairly burdened families and was biased in favor of police.
The inquest into her death didn’t take place for five years and the result was predictable — the officer’s actions were justified.
“Horrific in every way” is how Katrina Johnson, Lyles’ cousin and family spokesperson, described the inquest experience afterward.
“I’m just not sure it served any purpose but to traumatize my family,” Johnson said after the six-member jury found the officer’s actions justified. “I just think a lot of families are going to get their hopes up, like we did, only to be let down, like we were.”
Koehler and others who practice in the inquest system say the delays are painful for the families of those killed and dilute any lessons law enforcement might learn from the process.
The county has completed 17 inquests since the program was upheld by the Washington Supreme Court and reinstated in 2021, with another underway and five more scheduled.
The 18th inquest was convened Sept. 11 in a makeshift room in King County’s Chinook Building, where a six-member jury was being presented with evidence surrounding the Dec. 12, 2017, shooting death of Kyle Gray by Seattle police.
Gray’s inquest, expected to last about two weeks, was the third oldest pending in the system. Officials have not held an inquest into the death of Isaiah Obet, killed by Auburn police Officer Jeffrey Nelson on July 10, 2017.
Nelson awaits sentencing after being convicted of murder in the 2019 on-duty shooting death of Jesse Sarey.
Nor has the county convened an inquest into the death of Wardell Sims, who died June 16, 2017, while in custody of the King County Department of Adult and Juvenile Detention. His inquest, scheduled for February, will be the first detention-related death to be examined by a coroner’s jury since the program was revised.
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The deaths of more than 80 people who died in King County at the hands of law enforcement or while in custody, some dating back seven years, could one day get inquest hearings, according to data from the inquest program and the Prosecuting Attorney’s Office. That number will grow by roughly 14 fatalities a year, the prosecutor’s office says.
“It’s created a morass,” Koehler said. “These families are waiting five and six years. How can they heal? It’s like tearing off a Band-Aid. And for what? What’s the point?”
At the current rate of inquest hearings, the county will never catch up, and the delays will remain or even grow.
“Criminal means”
Inquests are administrative hearings, and jurors — rather than rendering a verdict — are presented with evidence and then asked to answer a series of factual questions.
While those questions include whether the death was caused through “criminal means,” the jury has no authority to file charges or recommend discipline.
The Washington Supreme Court’s 2021 unanimous opinion upheld Constantine’s revisions to the inquest system, which included a “criminal means” inquiry, and turned aside challenges by law enforcement agencies that believed the county executive had overstepped his authority in revising the process.
Until the recent revisions, the “criminal means” question hadn’t been asked in nearly 50 years.
The families urged the Supreme Court to adhere to the plain language of the Coroner’s Act of 1854, which lawmakers passed the year after Washington became a territory and more than three decades before it became a state. The law requires a coroner’s jury to identify the dead person, determine when, how and by what means they died and, if those means involved a crime, identify “who is guilty … if known.”
However, in these times of advanced forensic sciences and police investigations, the questions of who, what, when and where of these deaths are usually answered long before an inquest is convened. Outside of King County, the remainder of the state’s counties have ceded the act’s authority and responsibilities to medical examiners.
“The sole remaining question for the inquest juries is whether the means by which these people were killed were criminal in nature,” wrote Supreme Court Justice Debra Stephens in the court’s 2021 opinion. “The Coroner’s Act requires that juries be allowed to answer that question whenever possible.”
But with the delays in the current system, that could mean years before a police shooting or jail death is reviewed for “criminal means,” a delay the King County Prosecuting Attorney’s Office and police accountability proponents say is untenable.
Ted Buck is one of the state’s most experienced inquest attorneys, having represented police officers in “somewhere between 60 and 70” inquests over the years. Like Koehler and others, he supported the inquest system as a mechanism of public transparency in these cases but has soured on the revised process, which has become contentious and burdensome.
“The Supreme Court threw a wrench in the process,” Buck said, and the issue surrounding the “criminal means” question has become a distraction to the fact-finding role of the process.
Garrity immunity
A key issue is most of the officers who testify at an inquest have immunity from anything they say because they have been ordered to testify by their chief or their department, which triggers their Fifth Amendment protections against self-incrimination under a 1967 U.S. Supreme Court ruling called Garrity v. New Jersey.
The ruling states essentially that public employees can be compelled to make a statement during an investigation by their employer, if there is a public interest. But because employees enjoy the same Fifth Amendment protections as any other citizen, that compelled statement cannot be used in any criminal prosecution.
That means anything an officer says during an inquest, if compelled to testify, can’t be used in a criminal prosecution. Thus, any inquest jury’s finding of “criminal means” could be essentially meaningless.
Inquest jurors are not told about Garrity and officer immunity “for a variety of reasons,” Buck said.
History of inequities
King County’s charter, based on the 1854 Coroner’s Act, requires an inquest jury be convened for every death caused by law enforcement, including in jails or police custody.
Inequities in the system have long been obvious, and records indicate that despite dozens of controversial or questionable police killings, no inquest jury has found an officer’s actions illegal or unjustified since 1971, when a jury determined Seattle police Officer Robert Elmore was not justified when he shot Leslie Allen Black, a Black man, in the back, killing him. Elmore was charged with manslaughter but was acquitted.
Over the years, inquests in King County have taken on the appearance of trials, with prosecutors presenting evidence and district judges presiding over the hearings. Jurors were asked whether an involved officer feared for their life or whether they believed the shooting was necessary — questions that strayed from the factual nature of the proceeding.
Moreover, police were represented by attorneys paid for by their guild or department. Families were forced to hire their own attorney or go unrepresented.
The outcomes were predictable: The officer inevitably testified their actions were necessary, and the inquest juries almost invariably went along.
Constantine stopped inquests in 2017 after he determined the inequities were too glaring to ignore. He sought advice from the public and experts on how to improve the process and established a panel to review it.
The following year, the panel appointed to review the process released a report suggesting a series of changes, including ensuring that families had legal representation, which Constantine modified, expanded and implemented the following year, prompting lawsuits from law enforcement agencies and some families, further tying up the program in litigation. In 2020, a King County judge sided with the cities and found Constantine had overstepped his authority as executive, prompting the appeal that led to the state Supreme Court’s ruling expanding the process the following year.
Among other suggestions, Constantine’s panel of experts, including relatives of people killed by police, recommended that inquests should lose the trappings of a trial, and that families should be appointed attorneys to represent their interests. Voters approved many of these changes by a large margin in 2020.
Misperception of justice
One of the co-chairs of Constantine’s panel, Sam Pailca, a longtime police reform and accountability advocate, now thinks the county should abandon inquests altogether. She is joined by former King County Superior Court Judge Terrence Carroll, who was appointed in 2019 by Constantine as one of the first three administrators to preside over inquest hearings. He has since retired from that role.
“These efforts were in service of the good intentions of the unique-to-King County law requiring inquests — to ensure a public airing of facts about the death of its citizens at the hands of the government,” Pailca said in an Aug. 20 statement.
“But it’s time to acknowledge that the laudable original purpose of the inquest process has been subverted by the intractable practices and illusory expectations that glommed onto it,” said Pailca, who was the first civilian director of Seattle’s Office of Police Accountability (at the time called the Office of Professional Accountability) and is now general counsel at Microsoft. She emphasized these views are personal and not those of her employer.
“The County Executive and the King County prosecutor should lead the effort to repeal the inquest process,” she said.
She suggests, as have others, that the newly formed state Office of Independent Investigations should take over those duties.
“It continues to look like a judicial process,” said Carroll, who like Pailca has a long history of supporting police reform and accountability. He served on two blue-ribbon commissions on Seattle police reforms and was named the first civilian auditor of SPD’s internal investigations, a role that eventually morphed into the Office of Police Accountability.
Carroll said he has been involved in “60 or 70” inquests over the years, in a variety of capacities.
“To many, what comes out of an inquest carries the imprimatur of justice, when it’s really just to dig up facts,” he said.
He said the misperception has been aggravated by the reintroduction of the “criminal means” question, which “has gummed things up” and confused and muddled the process.
Teri Rogers Kemp is a Seattle defense lawyer who has contracted with the county to represent families at inquests. She’s been involved in five of the 16 conducted since 2017, and has strong feelings about the process.
“I want to start out saying that I believe in the inquests process … and I believe it has to work because the community was promised a process more transparent and thorough, and that gives them an opportunity to participate,” Kemp said.
But the process has proved frustrating to families and is disingenuous in its purpose, particularly since the inclusion of the “criminal means” questions.
“What’s the goal?”
It used to be that the King County Prosecuting Attorney’s Office would wait for an inquest to be completed before reviewing police killings for possible criminal charges, but no longer.
After the four-year inquest hiatus due to litigation and government closures caused by the pandemic, former Prosecuting Attorney Dan Satterberg announced his office would begin issuing legal opinions on police-involved deaths independently of the inquest process, which falls under the executive’s jurisdiction.
Manion is referring all shootings involving police, in-custody deaths and motor vehicle fatalities involving police to her three-person Public Integrity Section, which has taken to publishing its opinions publicly on its website. Recently, the office released opinions on nine law enforcement-related deaths, two of which had been through an inquest.
“It’s a different time. The landscape has changed” since the Coroner’s Act was adopted 170 years ago, Manion said. King County is alone in continuing to use the process and she wonders why.
“I think we have to ask, ‘What’s the goal of inquests?'” Manion said in a recent interview.
The Prosecuting Attorney’s Office does not need an inquest to charge an officer with a crime. Manion points out the county charged and convicted Nelson, the now-former Auburn police officer, of murder without an inquest. Nelson is the first police officer convicted of murder in state history.
The Public Integrity Section meets twice a month, Senior Deputy Prosecuting Attorney Gary Ernsdorff said, and is plowing through the cases pending since Satterberg decided to stop waiting for inquests to make charging decisions in police use of force cases.
His prosecutors meet with families at the end of investigations to explain their findings. Having a pending inquest where jurors will be asked about “criminal means” — when that question has already been answered — is confusing and “can open a lot of wounds.”
“The truth is that most of these cases are justified,” Ernsdorff said. “Sometimes that’s hard for a family to hear — especially five years later.”
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