The killing of Timothy Russell and Melissa Williams in a hail of 137 bullets at the end of a car chase gave rise to a generic question, why do car chases so often end with death, even after the chase is over? But now that Cleveland Police Officer Michael Brelo is on trial for involuntary manslaughter, a new question is raised: why won’t the other cops present testify against him?
A seventh police officer invoked her Fifth Amendment right against self-incrimination Thursday in the voluntary manslaughter trial of fellow Cleveland officer Michael Brelo.
Officer Erin O’Donnell, who participated in the Nov. 29, 2012 police chase and shootings that resulted in charges against Brelo, entered the courtroom with her attorney, Mark Stanton. Prosecutors asked her if she had told investigators the “whole story” of what happened on the night of Nov. 29, 2012, at which point O’Donnell invoked her Fifth Amendment right.
The answer puts the question back in the court of the prosecutors, as it raises the question of why they didn’t indict the other officers as well, or why they won’t confer immunity on the witnesses, thus taking away their right to invoke the Fifth.
The prosecution has taken a curious position with regard to the uncharged cops refusing to testify without immunity:
Prosecutors had filed motions before the start of the trial opposing police officers who may invoke the Fifth Amendment. And they were quick to voice their opposition in court as well.
“We don’t believe police officers should be granted immunity for testifying,” assistant prosecuting attorney Adam Chaloupka told the court. Chaloupka said police officers should trust the Prosecutor’s Office to not to charge them for testimony given during the trial.
Tough as it may be for some to stomach, the scenario playing at Brelo’s trial presents a rather difficult, if unusual, problem. In many instances, police officers are not afforded the same constitutional rights that are given others. For example, they do not have the right of free speech when speaking in their official capacity as a police officer.
Why then, it might be argued, shouldn’t cops be afforded the Fifth Amendment privilege against self-incrimination? After all, they aren’t being called to testify as random people who just happened to witness an event, but as police officers in the performance of their duties. They are witnesses because they are cops. They are witnesses because of what they did and observed in the course of the performance of their duty, while on public time and the public dole.
What distinguishes a right denied cops from another right to which they’re entitled?
Cuyahoga County Prosecutor Timothy J. McGinty, who has been present but silent at the proceedings until Wednesday, told the court that as a matter of public policy police officers should be required to testify without being able to demand immunity.
“It won’t end with this,” McGinty told the court. “I am reluctant to start doing it here and now for fear of the future result.”
While McGinty’s claim of public policy has some superficial appeal, as does his concern for what allowing cops to invoke the Fifth will mean for future prosecutions of killer cops, it’s hardly a principled approach. Public policy is nothing more than a preferred choice, and if constitutional rights are subject to being ignored based on what most pleases the people, there is little chance for the rest of us. The primary need for constitutional rights is to protect the most hated, and what’s good for the many is rarely what the Constitution has to offer.
So there’s a problem. What doctrinal basis explains why it is different to deny police officers, using the authority of their position, the First Amendment right of free speech, from the Fifth Amendment right not to bear witness against oneself?
Both situations bear the similar accoutrements of authority. In fact, the connection to authority is stronger when it involves the cop’s direct performance of his duty than when an off-duty cop uses his shield to bolster the impact of his speech.
Of course, it “feels” very different. Certainly, a police officer can, and should, be susceptible to prosecution for a crime committed in uniform just as he would be out of uniform. And once prosecuted and convicted, he serves his sentence in stripes, like any other convict. Does this outcome devoid of the authority of the job explain why a cop can invoke the Fifth but not the First?
While the facile answer in the Brelo trial is that the other cops involved refuse to testify against one of their own, and are using the invocation of the Fifth as an excuse to avoid an unpleasant duty, that doesn’t mean they don’t have the constitutional right to do so.