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News / Politics / Clark County Politics

Democrats want independent prosecutor to handle cases where police use deadly force

Republicans say the plan would undermine county prosecuting attorneys and give the attorney general too much power. AG Ferguson is mum on the proposal.

By Jerry Cornfield, Washington State Standard
Published: January 29, 2024, 9:21am

A person is dead after a violent interaction with a police officer. A state investigation is conducted into the officer’s use of deadly force.

And the results are sent to the local county prosecutor to decide if the officer acted lawfully or should be charged with a crime.

Democratic lawmakers and police accountability activists say another voice is needed to assuage concerns of family members and the public about the fairness of this process.

Legislators are trying, again, to pass a bill to create an Office of Independent Prosecutions as a division of the Office of the Attorney General. This independent state prosecutor would review use of deadly force investigations, file criminal charges if warranted and, potentially, prosecute.

House Bill 1579 does not usurp authority of local prosecutors, backers said. Rather, the independent and local prosecutors would work separately but simultaneously and if each conclude charges are warranted, a judge could be asked to decide who gets the case.

Debate over the legislation comes about a month after a jury acquitted three Tacoma police officers of murder and manslaughter charges in the March 2020 death of Manuel Ellis in a case brought by Attorney General Bob Ferguson.

Gov. Jay Inslee in June of that year directed the State Patrol to investigate that case and turn the findings over to Ferguson’s office. He acted after it became known that a deputy for the Pierce County Sheriff’s office, which had been investigating, was involved in detaining Ellis.

“This is not to ensure people get the result that they want. Even if the judgment doesn’t come out the way you want, you have more faith in the process and you can move on from that,” said Rep. Monica Stonier, D-Vancouver, prime sponsor of the bill. “This is to ensure that there is confidence and transparency in the process.”

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Last March, the bill passed the Democratic-controlled House on a 52-44 vote. No Republicans supported it. It lapsed in the Senate Ways and Means Committee.

This session, it’s been revised to pare the operating costs and reach of the proposed agency. There are also wording changes in response to critics who said it may be unconstitutional because it infringes on the power of county prosecutors to make charging decisions.

Leslie Cushman of the Coalition for Police Accountability said the group’s “perfect bill” would grant the new agency exclusive jurisdiction to handle the cases.

“But we don’t think it’s possible currently. This is very practical,” she said. “All along we’ve said … we’re not looking for convictions. We’re looking for a fair process.”

Establishing an Office of Independent Prosecutions is one prong of reform groups’ strategy to bring more accountability to policing. Another is passage of House Bill 1445  authorizing the attorney general to bring actions against any city or county law enforcement agency for violating state laws. A third is action on House Bill 1062 restricting when cops can lie in interrogations.

These may not all make it to the governor’s desk this year.

But a week ago, the House Appropriations Committee approved the latest iteration of HB 1579. No Republicans voted for it.

“I don’t think it necessarily sends the right message that we don’t believe that our county prosecutors can be impartial in prosecuting these cases,” said Rep. Chris Corry, R-Yakima, the committee’s ranking Republican, before the vote.

Ferguson has yet to take a position even as his staff are integrally involved in ironing out wrinkles in the bill.

“We’re looking at it. That’s where we’re at,” he said last week. “I don’t have anything to say about it right now beyond that.”

Washington Association of Prosecuting Attorneys staunchly opposes any version that could erode the control of prosecuting attorneys to decide how cases are handled.

Republicans side with their concerns. They also don’t want to give the Office of Attorney General more power than it already has.

“I generally favor the local prosecutor making the decision because they are accountable to the citizens of their county,” said Sen. Mike Padden, R-Spokane Valley, who serves on the Senate Law & Justice Committee. “I am a little reluctant to give their authority and power to the attorney general.”

How it might work

House Bill 1579 limits the proposed independent prosecutor’s office to handling only cases arising from death investigations conducted by the state Office of Independent Investigations.

That agency, created in 2021, is not yet actively investigating new cases of police use of force, however, it is accepting requests to review prior investigations of deadly force cases.

When an investigation is completed, the bill envisions the independent state prosecutor and county prosecutors would review it concurrently and decide how to respond.

If a county prosecuting attorney opts not to file criminal charges, they must refer the case with all investigative materials, to the Office of Independent Prosecutions. If they determine at the outset they have a conflict and must recuse their office, they also must transfer the case to the state.

In the event both offices want to seek indictments, the bill states that a judge will “determine whose prosecution of the case will best promote the interests of justice.”

The legislation gives deference to the independent office as it says the court shall “prioritize the public’s interest in ensuring a fair and impartial prosecution and trial that is free from bias and even the appearance of bias, prejudice, or conflict of interest.”

It goes on to say the county prosecuting must overcome a presumption that they have “an inherent conflict of interest in any matter arising from an investigation” done by the state’s independent investigation office.

Provisions in the bill setting up the new framework for handling cases would take effect in July 2026.

Washington State Standard is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Washington State Standard maintains editorial independence. Contact Editor Bill Lucia for questions: info@washingtonstatestandard.com. Follow Washington State Standard on Facebook and Twitter.