This story originally published online at Carolina Public Press.
Following last week’s fatal shooting of Jason Walker, an unarmed Black man, by an off-duty Cumberland County sheriff’s deputy, District Attorney Billy West recused himself from any potential prosecution, and Fayetteville Police Chief Gina Hawkins requested outside help from the N.C. State Bureau of Investigation.
Both steps are common, though not universal, in officer-involved incidents.
West announced at a press conference the day after shooting that the N.C. Conference of District Attorneys, a state agency that supports and assists district attorneys across North Carolina, would handle any prosecution of the case.
West said he came to the decision after consulting with the conference, N.C. Attorney General Josh Stein’s office and the N.C. Administrative Office of the Courts.
“Their recommendation was to avoid even an appearance of a conflict of interest in this matter,” West said. “The Conference of District Attorneys is an independent prosecutorial agency with statewide jurisdiction with very competent and experienced prosecutors at their disposal.”
Hawkins said at the press conference that she had requested that the case be investigated by SBI, which will present its findings to the Conference of District Attorneys.
“We want public confidence in this process,” West said. “We’re asking an outside agency that has no connection to this jurisdiction to serve as the prosecutorial agency in this matter.”
At Hawkins’ request, a Cumberland County Superior Court Judge approved the release, on Thursday, of body-cam footage on three Fayetteville police officers who first arrived on the scene of the shooting on Saturday.
In most cases, state law requires that a superior court judge rule that officer body-cam footage can be released.
Hawkins is in the process of filing another request to release all body-cam footage of officers on the scene, The Fayetteville Observer reported.
But before any footage is released to the public, identifying information must be redacted. Hawkins told The Fayetteville Observer that she’s hopeful the videos will be released next week.
Why bring in a special prosecutor?
Jeff Welty, professor of public law and government at UNC-Chapel Hill’s School of Government, said that in the instance of an actual conflict of interest, state law requires the district attorney to refer the case to an outside agency.
But many district attorneys want to avoid even the perception of such a conflict, even if one doesn’t exist.
“That’s mainly a matter of helping to reassure the public that there’s no inside baseball, that the prosecutor handling the case isn’t one that regularly works with the officer who was involved,” Welty said.
He said this is a common perspective by district attorneys in the state.
“The nature of the work of a district attorney is to work closely with law enforcement officers in their district, to collaborate with them, to consult with them, to advise them,” Welty said.
“The idea behind asking another entity to take a case like this is that you ask an entity that doesn’t have that kind of close relationship. The Conference of DAs is in Raleigh. They don’t work with the Cumberland County Sheriff’s Office every day.”
But absent a known conflict of interest, the district attorney isn’t required by state law to seek this outside help.
Last year, after Pasquotank County sheriff’s deputies fatally shot Andrew Brown Jr., local District Attorney Andrew Womble handled the case, one he eventually decided not to prosecute, despite calls for a special prosecutor.
“I’m elected by the people of the 1st Judicial District to do exactly this job,” Womble said at a press conference last May following the decision. “A special prosecutor or outside counsel is not accountable to the people of this judicial district.”
This isn’t an uncommon stance either, Welty said.
“It’s not uncommon for a DA to keep the case and say, ‘You know, I feel like I can make the decision here, and that’s what I was elected to do,’” Welty said.
The N.C. Task Force for Racial Equity in Criminal Justice, created by Gov. Roy Cooper in 2020 to find solutions to racial inequities in the criminal justice system, recommends outside assistance in all cases of officer-involved shootings, regardless of whether they result in death, according to an emailed statement from Attorney General Stein’s office.
What NC’s Task Force for Racial Equity says
Outside investigation is also recommended in all other uses of force that result in death, sexual assaults by law enforcement officers, domestic violence incidents involving law enforcement officers and all officer-involved in-custody deaths.
The task force, which is co-chaired by Stein and Hawkins among others, recommends a special prosecutor be appointed and an SBI investigation be mandated in all such instances.
A new law passed by the General Assembly and signed into law by Gov. Cooper in September only mandates an SBI investigation if requested by the governor, sheriff, chief of police, district attorney, head of a state law enforcement agency or the commissioner of prisons if the law enforcement officer uses force against someone and kills the person.
The new law, Senate Bill 300, doesn’t affect the process for bringing in a special prosecutor for a case.
Another proposed bill, known as the Equity in Justice Act of 2021, would have required an SBI investigation and a special prosecutor in all use-of-force incidents, but that bill, which Democrats exclusively sponsored, stalled in April.
Calls for federal investigation
“It’s a federal crime for anyone acting under ‘color of law’ to willfully deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law,” according to the FBI’s Civil Rights Division.
The bureau typically reports the findings of its investigations to the U.S. Department of Justice, headed by the U.S. attorney general, who determines whether to bring charges.
During Monday’s Fayetteville City Council meeting, council member Courtney Banks-McLaughlin called for federal involvement in the case, but the discussion about the procedures on how to request federal DOJ or FBI participation quickly became confusing.
Chief Hawkins assured the council that the FBI was already assessing the case and making a “cursory overview.”
Even so, a statement from an FBI spokesperson said the agency was aware of the matter and if the state investigation brought information about a potential federal violation to light, “the FBI is prepared to investigate.”
Ultimately, the council voted unanimously to send a letter requesting the involvement of U.S. Department of Justice, specifically the federal prosecutor’s office in the Eastern District of North Carolina, in the investigation of sheriff’s Deputy Jeffrey Hash’s shooting and killing of Walker.
In the aftermath of the Brown shooting last year, the FBI announced a civil rights investigation. The results of that investigation have yet to be announced.
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