PUBLICATIONS

February 18, 2017


The JERIME MITCHELL PROJECT

by Adrian Haughton

Introduction
The story presented to the public by Linn County Attorney Jerry Vander Sanden, following the officer involved shooting of Jerime Mitchell on November 1, 2016, was not an objective or impartial analysis of what took place. Instead Vander Sanden appears to have intentionally presented a biased version of events to shine a favorable light on the actions of the Cedar Rapids Police Department (CRPD). This is not a statement of guilt or innocence on the part of Officer Lucas Jones, instead this is to show another perspective of this unfortunate situation. This is not an “anti-police” rant. The goal of this statement is to point out some of the contradictions and conflicts of interest surrounding the handling of this case. It is also to call attention to the many questions of fact not addressed in the Linn County Attorney’s presentation of the facts.

This statement is based on limited information made available to the general public. Because grand jury proceedings are secret, I do not have detailed information on what took place behind those closed doors. My analysis is based off of public statements made by those involved. I do not represent Mr. Mitchell or the Mitchell family, nor do I work for attorneys who currently represent any of the parties involved. This is an independent analysis and statement of a concerned citizen.

The question at the center of this analysis is whether or not Officer Lucas Jones should stand trial for his use of force by shooting Jerime Mitchell while on duty. The short answer is yes. These proceedings were handled by the Linn County Attorney Jerry Vander Sanden in a manner that appears to be favorable to Jones rather than in the interest of justice. There are many unanswered questions of fact surrounding the circumstances of this case. “It is for the fact finder…to resolve questions of fact and determine the credibility of witnesses.”[1] In other words, it is the job of trial jurors or judge to resolve these questions of fact this is not the job of a grand jury[2]. It appears that the grand jury in this case made the decision with biased, partial information which resulted in the “no bill” ruling[3]. Jones’ account of the events in question, as told by Vander Sanden during his press conference on December 6, 2016[4] presents this case as a simple “officer in fear for his life” or self-defense situation. However, the information produced does not give a clear justifiable use of this defense. Therefore, whether or not Jones’ actions were justified should be determined by a judge or trial jury.

Analysis

Due to the secrecy surrounding the grand jury proceedings it is unclear what evidence and sworn testimony was presented to the grand jury. If the “facts” stated[5] are the same facts that were presented to the grand jury by Jerry Vander Sanden, there is important information that was not presented to the grand jury at all or presented in a light favorable to Jones. Only Jones’ alleged version of the events were presented to a grand jury, the grand jury heard absolutely nothing from the Mitchell. Jones claims Mitchell was combative and used abusive language, Mitchell disputes that assertion. According to Mitchell, Jones ‘“became combative toward me.” Mitchell said he would never curse like Jones claimed at anyone, “let alone a police officer.”’[6] If Vander Sanden portrayed Mitchell as a rude, foul mouthed, disrespectful person, this would likely have a significant negative impact on the grand jury’s perception of Mitchell which would likely influence how they view the video footage. Based on this portrayal, the grand jury likely sees the entire interaction in a completely different light than they would had the audio been available and instead revealed a rude, aggressive, and disrespectful Jones. This difference of perspective is certainly crucial information as it may change who is viewed the as the aggressor. This is not to say that either Jones’ or Mitchell’s story is more credible, this is to point out the fact that only two people know what was said and how it was said. It appears that only one side of the story was given to intentionally present Mitchell in a very negative way and to present Jones as an officer just doing his job in a professional manner. The overall tone of Jones and Mitchell cannot be accurately determined without audio. Vander Sanden said he did not think “a statement from Mitchell would have changed the outcome of the grand jury hearing, after members viewed the dash camera footage of the incident.”[7] It is unclear whether or not the grand jury would have come to a different conclusion if they had Mitchell’s statement. However, the lack of audio and the conflicting stories from Jones and Mitchell raise extremely important questions of fact. It is the job of the trial jurors or judge to determine the credibility of witnesses and resolve questions of fact, this is not the job of a grand jury.

According to Vander Sanden, “The video is the best evidence and the jury must have thought so.”[8] This is true, the video is the best evidence but it presents credibility for both stories being told. The video does show Mitchell turning to his left, in the direction of Jones. A fact finder might say he was resisting at this point which is why Jones “swept Mitchell’s feet, resulting in them both falling to the ground.”[9] Another fact finder may believe that Mitchell was simply speaking with Jones and because Mitchell’s hands remained behind his back he was not resisting. We do not know what dialogue took place at the time that Jones took Mitchell down to the ground. Is it within the realm of possibility that Jones was asking questions that Mitchell was attempting to answer? Is it possible that Jones was speaking rudely and aggressively to Mitchell? Mitchell said,

I was frightened, and decided it was in my best interest to get back in my truck. At that point, Officer Jones got even more aggressive towards me and slammed me against the truck, then without provocation from me, he tackled me to the ground and released his dog who started attacking me.[10]

There are many possibilities as to what was being said but the grand jury only heard the narrative which favored Jones. Without hearing the dialogue between Jones and Mitchell, does the video provide sufficient proof that Jones was justified in taking Mitchell down on the ground? If a fact finder did not determine Jones’ actions were reasonable when he threw Mitchell down and released the dog, should it then be assumed that attempting to escape was reasonable after being unjustifiably thrown down and bitten? Would a reasonable person in this situation fear for their life attempt to get away from the officer whom “without provocation started attacking”[11] them? Again, the lack of a functioning microphone leaves multiple questions of fact that would likely be raised in a trial court.

During the press conference Vander Sanden said, “Officer Jones was caught between the open door and the truck itself. He couldn’t tell what was holding him to the truck but he was unable to free himself as Mitchell pressed the brake and reached towards the gear lever on the steering column.”[12] Vander Sanden also said Jones “told Mitchell several times to stop and to not accelerate.”[13] Vander Sanden then states Mitchell “disregarded Officer Jones’ directives” claiming that at this point Mitchell put the vehicle in drive and began to accelerate with Jones still attached.

Officer Jones felt he was still secured to the now moving truck and feared his life was in jeopardy. He then grabbed his service weapon with his right hand and fired three shots into Mitchell’s head with the intent to kill him. After the three shots were fired, Officer Jones broke free and fell backwards onto the pavement. [14]  

Many parts of this statement are contradicted by the video. Again, the lack of a functioning body microphone leaves us unable to say with absolute certainty whether or not Jones gave the aforementioned warnings or “told Mitchell several times to stop and to not accelerate.” However, the dog and other noises from outside of the police car can be heard on the microphone inside the police car, including the sound of an object being dropped at Jones’ feet when Mitchell gets back into his vehicle. We do not hear Jones yelling any of the above mentioned “directives” at this time.

Jones begins to reach for his firearm at 01:19:01, Mitchell’s brake lights flash (presumably when the vehicle is put into gear) at 01:19:03. This contradicts Jones’ claim that the vehicle was in gear and moving when he grabbed his service weapon out of fear for his own life. From this contradiction a fact finder might determine that Jones was not acting in fear for his life but instead decided to unjustifiably use deadly force before the vehicle began moving.

In the statement above made by Vander Sanden, Jones was caught and unable to free himself. However at the moment that Jones draws his weapon and takes aim at Mitchell, Jones does not fire the weapon near his own face, which is where he might fire from if he were unable to free his left arm from inside the vehicle. Instead, Jones is able to lean back far enough to almost fully extend his right arm before firing. This raises another question of fact, was Jones in fact stuck and unable to free himself, was he able to break free before firing, or was he simply refusing to let go of Mitchell until after he fired his weapon?

              The claim that Jones had already called for backup,[15] for broken license plate lights, before pulling Mitchell over, raises many questions about this stop. First, when was this call for back-up made? From the time that the audio on the dash-cam video comes on inside the vehicle, and after Mitchell’s truck enters the frame, a radio call giving Jones’ location or requesting backup cannot be heard. There is some inaudible radio chatter in the background in the earlier part of the video, however later in the video when Jones calls out “shots fired” over the radio, his voice is heard clearly over the radio. Therefore, it could be reasonably assumed that had he made such a call for backup when pulling Mitchell over, that radio communication would also be heard clearly. This analysis addresses these issues because it appears that this call for backup is how Vander Sanden and the CRPD explain the fact that there were at least four other police vehicles, one of which was unmarked, in the immediate area. An officer can be seen coming over the hill at the same time Jones is calling out for assistance. If no call for backup was made, how did so many officers respond so quickly to the exact location? If there was an unheard backup call before the stop it is still unclear why four police vehicles would need to respond for backup for license plate lights. This analysis will not address in detail the possible pre-textual reasons for this stop. However, until a thorough investigation is completed, it should not be ruled out that there may have been reasons other than what the Linn County Attorney and CRPD are telling the community for this stop, especially considering the fact that CRPD seemed to believe it required a total of at least five officers to assist in this stop.

Lucas Jones should be charged with attempted murder pursuant to Iowa Code §707.11(1).[16] Again, this is not saying he is guilty of this crime. This is only to say that there is sufficient evidence in which a fact finder could determine guilt. Jones’ intent to end the life of Mitchell was stated in the facts according to the DCI investigation read by Vander Sanden during the December 6 press conference. Jones would likely present a self-defense claim pursuant to Iowa Code §§§704.12,[17]704.13,[18]804.8.[19] As to the self-defense claim, Iowa Code §704.6(2) specifically states that the defense of justification is not available to “one who initially provokes the use of force against oneself, with the intent to use such force as an excuse to inflict injury on the assailant.” It is possible that a fact finder may determine Jones provoked the circumstances by violently and unjustifiably forcing Mitchell to the ground then releasing the K-9 which in turn resulted in Mitchell retreating to his vehicle and attempting to flee. “Although the burden to disprove self-defense rests with the State, the defendant bears the burden of demonstrating that the record contains sufficient evidence to support an instruction on this issue.”[20] Since these facts were reviewed by grand jury instead of a judge or trial jury, Jones was not required to meet this burden. Jones only had to say he was stuck and feared for his life, he was not required to show the grand jury any evidence supporting this claim. Given the circumstances and the limited evidence, it is reasonable to believe that a fact finder might not find Jones’ version of the events meets the burden necessary for a justification of self-defense.

The justification for use of deadly force under §804.8 could fail for a number of reasons. First, considering the number of police officers in the immediate vicinity, it is unreasonable to believe that Mitchell could not have been captured any other way. Assuming Jones had in fact called for backup for the broken license plate lights, he was aware that officers were coming to assist. If the other officers were already strategically in place at the time Jones pulled Mitchell over, Jones was likely aware of their presence which would also mean Jones should know that there were other means of capture. Next, neither Mitchell’s statement[21] nor the statement given by Jones, indicate anything was said that would give Jones a reasonable belief that Mitchell had previously or would use deadly force in committing a felony. There also does not appear to be any indication that Jones should have reasonably believed that Mitchell would use deadly force against any person unless immediately apprehended. ‘“The “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them.”’[22] The analysis of the facts and circumstances confronting Jones largely depends on the answer or determination by a fact finder to the earlier mentioned question, was Jones actually stuck or was he simply refusing to let go of Mitchell? If the latter, would a reasonable officer use deadly force for license plate lights and a suspicion of marijuana possession or would a reasonable officer focus on getting safely away from the vehicle and wait for backup he knew would be arriving shortly? If the former, “because it is an affirmative defense under Iowa Code section 704.12, the defendant has the burden of going forward with sufficient evidence to show that the defense applies.”[23] In other words, a fact finder might not consider Vander Sanden’s statement that Jones was “caught between the open door and the truck itself, he couldn’t tell what was holding him to the truck but he was unable to free himself,” to be sufficient evidence to support the affirmative defense. Jones’ word should not be simply taken as fact solely because he is a police officer. In fact, the police should be held to the same, if not a higher standard of proof than that of a civilian because it is the job of the police to uphold and enforce the law and use deadly force only when it is absolutely necessary. To allow an inadequate justification for firing a weapon at a civilian creates a very dangerous precedent within law enforcement. Such a precedent could create the mindset that officers only need to claim they were in fear for their life instead of showing that the circumstances reasonably created such a fear and justified the use of deadly force.

Prosecutorial Conflict and Bias

              “The grand jury is an independent body chosen at random from the community with no stake in the outcome other than to see that justice is done” said Vander Sanden. This may be true of the grand jury but the same cannot be said about Linn County Attorney Vander Sanden. He does have a very significant stake in the outcome, a stake so significant that it could impact his career and relationship with CRPD. Such bias and serious conflict of interest should have resulted in Vander Sanden recusing himself and either asking the court to assign a special prosecutor,[24] or asking the State Attorney General’s office to handle the case.[25] Typically in a grand jury proceeding, a theory of the crime is presented by the prosecutor whom supports that theory with witnesses and evidence. By presenting only Jones’ version to the grand jury, and Vander Sanden’s overall public tone, Vander Sanden came across more like a criminal defense attorney trying to acquit his client [Jones] than a County Attorney seeking a fact based determination whether Jones should stand trial. We saw a similar technique used in the case of Officer Darren Wilson.[26] There we also watched the prosecuting attorney put on a show of impartiality by presenting the case to a grand jury instead of outright declining to charge Wilson. In both cases, the prosecutors attempted to distract the public with the appearance of impartiality, using the grand jury ruling as a reason to not file charges against the officers. Based on public statements made by the Ferguson District Attorney Robert McCulloch, he too seemed to have presented the facts of the case in a way that appeared favorable to Wilson. Much like Robert McCulloch, Vander Sanden’s account of the events did not appear to support a theory of a crime but instead justified a defense.

As the old saying goes “you can indict a ham sandwich”, in other words if a prosecutor wants an indictment, they will likely get one. This begs the question, was the failure to indict Jones due to lack of a genuine pursuit of justice? Although the law does not require county attorneys to prosecute zealously, their job is to seek justice. The court has said prosecutors have an;

obligation to govern impartially[that] is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.[27]

Linn County Attorney Vander Sanden was not impartial and mishandled this case in such a way that justice was not sought and was completely and intentionally ignored.

Vander Sanden should not have taken on a case which involved the possibility of prosecuting the very police that he depends on every day to do his own job. “Prosecutors rely heavily on police cooperation for the success of their cases. Almost no criminal case exists without the police as the first contact point.”[28] The Linn County Attorney cannot do his job without the cooperation of the CRPD. Therefore, to zealously pursue a conviction against one of the CRPD’s officers may have a serious impact on his ability to convict future offenders as well as serious impact on political aspirations including re-election.[29] This is a very problematic conflict of interest.

“To foster such professional reliance, prosecutors must have a smooth working relationship with the police. This relationship naturally carries over outside of work.”[30] It is not outside of the realm of possibility that Jones and Vander Sanden know each other on a personal level. Even more likely, Jones and Vander Sanden have probably worked together on previous cases which Vander Sanden relied on Jones’ sworn testimony to secure convictions. Were Vander Sanden to now prosecute Jones, Vander Sanden “must switch from [his] reliance on the police as allies to the position of an adversary, questioning the credibility and judgment of a police officer.”[31] This would likely impact any future relationship and reliance with the CRPD. It is reasonable to believe that the possibility of damaging such a relationship with the CRPD would likely impact Vander Sanden’s ability to remain objective or impartial thereby impacting his interest and/or ability to pursue justice. Considering the relationship between the Linn County Attorney and the CRPD, it does not appear that he presented the case to the grand jury with an interest in pursuing justice but instead a facade made to look like a pursuit of justice while ensuring good standing in this ongoing relationship.

Conclusion

The failure by Linn County Attorney Jerry Vander Sanden and the CRPD to hold Lucas Jones accountable for his actions, tells the people of Iowa, specifically Cedar Rapids that the very system that is supposed to protect and serve them, is the same system that may also use weapons against them without having to provide any justification other than “I was in fear for my life.”

An estimated 1090 people were killed nationwide by the police in 2016. Approximately 162 people were unarmed and 59% of those that were unarmed were killed by gunshot.[32] Unless the police are held to a higher standard and required to account for their actions, it is reasonable to believe that officer involved shootings will become more frequent. Officers must not become judge, jury, and executioner simply because they are scared and it is the easier route.

“A poll conducted in August 2014, found that only 37% of people believed that the justice system could be trusted to deal with police–defendants.”[33] For our system of law and order to work, the people subjected to it must believe that this system will not only punish them but will work for them as well. We must have equal justice under the law for all. “Law and order without justice is unobtainable, they are inextricably tied together. If there is no justice, there is no peace.”[34] We are in a position to show the people of Iowa that the system does work for them and will seek justice for all. Jerime Mitchell, a citizen of Cedar Rapids will not be afforded justice unless Lucas Jones stands trial. I reiterate, this is not to say that Jones is or must be found guilty, however there are significant questions of fact of which a fact finder could determine that Lucas Jones was not justified in his use of force. Not requiring Lucas Jones to provide evidence before the court showing his actions were justified under a claim of self-defense is not only a travesty of justice but is state sponsored violence. Police must know if they feel compelled to end someone’s life, they must be certain that they are justified in doing so and that a failure to reasonably justify their use of deadly force will result in them being prosecuted to the full extent that the law allows. A badge does not and cannot grant an open license to kill.

For all of the aforementioned reasons the court should have overturned or rejected the partially informed grand jury’s “no bill” decision, assigned an objective special prosecutor or asked the state’s Attorney General’s office to launch a full and impartial investigation into this case.
 
Appendix I

Facts (Video Analysis)

At approximately 01:15:42, we observe Officer Jones fail to stop at a flashing red traffic light. At 01:16:0 Mitchell’s vehicle comes into view of the dash-cam. At 01:16:07 the squad car’s interior microphone turns on. The police officer appears to have increased speed, although it is not absolutely clear as the “MPH” reading on the dash-cam does not give the speed in which he is traveling. At 01:16:12 Jones drives through a flashing red light without having his own emergency lights on. Jones follows Mitchell then at 01:17:03 Jones turns on his emergency lights to signal Mitchell to pull over. At 01:17:30 Mitchell pulls over to the right side of the road, at this time loud barking can be heard by the K-9 officer still inside of the vehicle. There is no audio from Jones’ body microphone, only the microphone inside of the police car is recording. At 01:17:49 Mitchell appears to hand Jones his documentation (license, registration, etc.). At 01:18:06 Jones orders Mitchell out of his vehicle, the dog is still barking very loudly. Immediately upon exiting the vehicle (01:18:13), Jones grabs Mitchell’s arm, twisting it behind his back and forcing Mitchell up against his own vehicle. Mitchell, with his hands behind his back, appears to attempt to turn to speak with the officer when Jones pushes Mitchell’s shoulder back into position against the vehicle. Words can be heard however due to the dog barking and lack of a functioning body microphone it is unclear as to what is being said. With his hands still behind his back, Mitchell again appears to attempt to turn to speak with Jones, at 01:18:39 Jones again forces Mitchell against the vehicle then turns to put Mitchell on the ground, this results in both of them falling. As Mitchell attempts to return to his feet (01:18:45), Jones wraps his right arm around Mitchell’s waist and with his left hand releases the K-9 officer from the vehicle. Once the K-9 is released from the vehicle there is an audible yelling that appears to be coming from Jones, it is unclear exactly what is being said. The K-9 runs up to Mitchell and appears to bite his leg (01:18:51), there is another audible yell or scream which sounds like it is coming from Mitchell. At 01:18:55 Mitchell opens the door to his vehicle and begins to re-enter. At this time Jones is now behind Mitchell and the dog continues to attack Mitchell. Mitchell gets back into his vehicle and at this time Jones begins to reach for his firearm (01:19:01). We see the flash of the vehicles lights (when the vehicle is put into gear) at 01:19:03 then the vehicle begins moving. At 01:19:05 Jones leans back from Mitchell and fires his service weapon three times then falls from the moving vehicle at 01:19:06. The vehicle continues moving forward and out of sight of the dash-cam. At 01:19:16 Jones can be heard on his radio saying “shots fired, shots fired! Northbound, the red truck turn around and go get it, shots fired.” The first of two police vehicles approaching from the front of Jones’ car can be seen at this time. At 01:19:23 two police vehicles arrive at the scene from in front of Jones’ squad car, a third approaches from behind, all three immediately leave the scene in what can be assumed to be in pursuit of Mitchell’s vehicle. There is further radio chatter; (dispatch or other officer) “where did that truck go when he went by?” (Jones) “He went north towards First Avenue.” (Other officer) “that SUV, the black SUV, did you see where it went?”[35] (Jones) “It’s an Avalanche, maroon Avalanche” (Other officer) “there’s a car up here with lights, anyone check this one out?” (more chatter, unclear, something about 4th Ave and 12th St.), (other officer) “guys I don’t have it, I don’t know which way it went.” (more unclear chatter), (other officer) “I’m not sure who was driving that black SUV but…” (another officer on radio) “I know it was directly behind me when it passed me…” (unclear due to K-9 returning to vehicle still barking very loudly).

Appendix II

Facts (Jones Perspective/Vander Sanden Press Conference) [36]

According to Vander Sanden, the Iowa Division of Criminal Investigation (DCI) was contacted to investigate this shooting. The DCI completed their investigation and turned over their findings to the Linn County Attorney’s office on November 16, 2016. Vander Sanden states that he asked the DCI to complete a follow up “with a few aspects of the case which were swiftly completed.” On November 17, 2016, Vander Sanden issued a summons to the grand jury asking them to convene on December 5, 2016. According to Vander Sanden, testimony and evidence was presented to the grand jury on the scheduled date. Vander Sanden states “the facts showed…this truck came to the attention of Jones on Center Pointe Rd. NE. because neither of his license plate lights were working.” Vander Sanden goes on to explain that Jones pulls Mitchell over and that the dash-cam captures the encounter but the “body microphone of Officer Jones was not operational, so there is no audio recording of the encounter.” Vander Sanden goes on to say that Jones detected a “strong odor of raw marijuana coming from the truck that grew stronger as he approached the open driver’s side window.” It is at this time that Vander Sanden reads Jones’ account of the verbal interaction per the DCI investigation. Jones claims that Mitchell was the first to speak saying “what the fuck do you want?” Jones then claims that he “explained his reason for the stop, referring to the license plate lights.” Jones claims Mitchell replied, “bullshit, no it’s fucking not.” Jones claims Mitchell then said he wanted to see the broken lights and reached for his door, Jones then stepped back to allow him out of the vehicle but then Mitchell changed his mind stating “no, fuck that” and locked his door. “Officer Jones then ordered Mitchell out of his truck and unlocked the door.” “Officer Jones informed Mitchell that he detected the odor of marijuana and he intended to detain Mitchell to check into it.” Jones says he felt Mitchell “tense up” as he tried to apply the handcuffs to Mitchell. Jones goes on to say that he attempted to calm Mitchell and then warned that he would “release his K-9 partner Bane if Mitchell became combative.” To this, Jones claims Mitchell replied, “let that fucking dog out.” “Mitchell then began to turn to his left then Officer Jones who swept Mitchell’s feet, resulting in them both falling to the ground.” Vander Sanden goes on to describe the dog being released to “assist in his effort to secure Mr. Mitchell.” He describes the struggle that took place by saying Mitchell lifted Jones off of his feet. He explains that Mitchell was able to re-enter the vehicle and it was at this time that he says “Officer Jones was caught between the open door and the truck itself, he couldn’t tell what was holding him to the truck but he was unable to free himself as Mitchell pressed the brake and reached towards the gear lever on the steering column.” Vander Sanden states Jones “told Mitchell several times to stop and to not accelerate.” Vander Sanden then states Mitchell “disregarded Officer Jones’ directives” claiming that at this point Mitchell put the vehicle in drive and began to accelerate with Jones still attached. “Officer Jones felt he was still secured to the now moving truck and feared his life was in jeopardy. He then grabbed his service weapon with his right hand and fired three shots into Mitchell’s head “with the intent to kill him.” After the three shots were fired, Officer Jones broke free and fell backwards onto the pavement.” Vander Sanden goes on to explain how one of the three shots paralyzed Mitchell instantly and the vehicle continues down the road before “side-swiping a black police SUV that was responding for back-up.” Vander Sanden goes on to explain that a search of the vehicle revealed cash ($1,500) and a pound of marijuana and a search of the cell phone showed communications between Mitchell and an unnamed person regarding the sale of said marijuana. He then goes on to talk about blood tests performed on Mitchell which revealed recent use of marijuana. Vander Sanden claims that DCI agents “made several attempts to speak with Mr. Mitchell about the incident” but claims that phone calls to the family’s attorney were not returned until the announcement of the grand jury to be convened. Vander Sanden claims that at that time DCI was lead to believe that an interview with Mitchell would take place November 21 or 28, 2016. “Those efforts [to interview Mitchell] were not successful,” said Vander Sanden. The grand jury heard this information and “sworn testimony”, deliberated and then returned “no bill.”

[1] State v. Martin, 341 N.W.2d 728, 729 (Iowa 1983).

[2] A grand jury determines whether charges should be brought against a suspect, trial juries give a decision about whose facts they believe in the trial itself.

[3] There is no judge present during grand jury proceedings and the prosecutor is the sole attorney explaining the facts and the law to the grand jury and the grand jury proceedings are kept secret.

[4] Trish Mahaffey, Grand jurors clear Cedar Rapids officer in traffic-stop shooting, The Gazette (Dec. 6, 2016, 9:41 pm), http://www.thegazette.com/subject/news/public-safety/linn-county-grand-jury-will-not-indict-cedar-rapids-police-officer-in-shooting-of-jerime-mitchell-20161206.

[5] Id. also see Appendix II.

[6] Trish Mahaffey, Jerime Mitchell: Version of events from DCI and Linn County Attorney 'untrue', The Gazette (Dec. 7, 2016, 11:55pm), http://www.thegazette.com/subject/news/public-safety/jerime-mitchell-version-of-events-from-dci-and-linn-county-attorney-untrue-20161207.

[7] Trish Mahaffey, Police: Many attempts made to get statement from man shot by Cedar Rapids officer, The Gazette (Dec. 7, 2016, 9:00 pm), http://www.thegazette.com/subject/news/public-safety/police-many-attempts-made-to-get-statement-from-man-shot-by-cedar-rapids-officer-20161207.

[8] Id.

[9] Mahaffey, supra note 4.

[10] Mahaffey, supra note 6.

[11] Id.

[12] Mahaffey, supra note 4.

[13] Id.

[14] Id.

[15] Id.

[16] IOWA CODE §707.11(1) (2017): A person commits the offense of attempt to commit murder when, with the intent to cause the death of another person and not under circumstances which would justify the person’s actions, the person does any act by which the person expects to set in motion a force or chain of events which will cause or result in the death of the other person.

[17] IOWA CODE §704.12 (2017): A peace officer or other person making an arrest or securing an arrested person may use such force as is permitted by sections 804.8, 804.10, 804.13 and 804.15.

[18] IOWA CODE §704.13 (2017): A person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force.

[19] IOWA CODE §804.8(1) (2017): A peace officer, while making a lawful arrest, is justified in the use of any force which the peace officer reasonably believes to be necessary to effect the arrest or to defend any person from bodily harm while making the arrest. However, the use of deadly force is only justified when a person cannot be captured any other way and either of the following apply:

a. The person has used or threatened to use deadly force in committing a felony.

b. The peace officer reasonably believes the person would use deadly force against any person unless immediately apprehended.

[20] State v. Ceaser, 585 N.W.2d 192, 194 (Iowa 1998).

[21] Mahaffey, supra note 6.

[22] Chelf v. Civil Serv. Comm'n, 515 N.W.2d 353, 356 (Iowa Ct. App. 1994).

[23] State v. Lawler, 571 N.W.2d 486, 489 (Iowa 1997).

[24] IOWA CODE §66.12 (2017): When the proceeding is brought to remove the county attorney, the court may appoint an attorney to appear in behalf of the state and prosecute such proceedings.

[25] IA. R. CRIM. P. 2.5(1) (2017)… The attorney general, unless otherwise authorized by law, shall have the authority to file such a trial information upon the request of the county attorney and the determination of the attorney general that a criminal prosecution is warranted.

[26] Officer involved shooting of Michael Brown in Ferguson, MO. 2014.

[27] Berger v. United States, 295 U.S. 78, 88 (1935).

[28] Kate Levine, Who Shouldn’t Prosecute the Police, 101 Iowa L. Rev. 1447, 1465 (2016).

[29] Id. at 1472, 1486.

[30] Id. at 1469.

[31] Id. at 1470.

[32] The Counted; People Killed by Police in the US, The Guardian (last visited Jan. 5, 2017, 12:16 PM), https://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killings-us-database#

[33] Levine, at 1482, quoting Peter Moore, Poll Results: Police, YOUGOV (Aug. 14, 2014, 11:35 AM), https://today.you

gov.com/news/2014/08/14/poll-results-police.

[34] Senator Cory Booker (D-NJ), Booker breaks with precedent to testify against Sessions – and earns Republican rebuke, Fox News Politics, (Jan. 12, 2017), http://www.foxnews.com/politics/2017/01/12/booker-breaks-with-precedent-to-testify-against-sessions-and-earns-republican-rebuke.html.

[35] Unmarked police vehicle described as “responding for backup.”

[36] Mahaff
ey, supra not
e 4.


____________________________________________________________


February 23, 2017


Response of Jerry Vander Sanden, Linn County Attorney to Adrian Haughton's Assessment of Jerime Mitchell Shooting


Dear Mr. Haughton:

Thank you for taking the time to write about the decision of the Grand Jury of Linn County not to indict Officer Lucas Jones for his use of deadly force upon Jerime Mitchell.  I thought you deserved a response even though it is obvious we will not come to a consensus about the outcome.  Let me just share a few random observations about your paper. 

I take issue with your assertion that prosecutors cannot be objective when evaluating police conduct.  We do it every day.  It is part of my job to scrutinize their work and evaluate the cases they refer for prosecution.  It is not unusual for me to advise police they do not have sufficient evidence to charge someone with a crime.  There are other instances when I refuse to file charges because I believe police did not have grounds to detain or search a suspect.  I’m sure you are developing professional relationships with others in law school.  Do you believe you can’t be objective in your evaluation of their conduct? 

Incidentally, I did check with other prosecutors across the state concerning their practice with presenting officer involved shooting cases to a grand jury.  I could not find one that ever sought an independent prosecutor for this task.  In fact, there is no legal mechanism to ask for a special prosecutor unless there is a legal conflict of interest.  (see section 331.754(2) of the Iowa Code).  The fact that a law officer is involved does not present a legal conflict of interest.

I might also note there is no rule that required me to convene a grand jury in this matter at all.  That is, if it was my intent to simply protect the police, I could have simply declared that there was insufficient evidence to charge the officer.    I could have cleared the officer on my own if I so chose but I brought in a grand jury to decide the issue.

I don’t mean to be overly critical, but it is clear to me you have no understanding how the grand jury process works.  The prosecutor does not present a theory of a crime.  The prosecutor does not argue or attempt to persuade the grand jury one way or another.  The prosecutor questions witnesses but then turns the questioning over to the grand jurors who are free to ask questions.  The grand jurors also have the authority to subpoena any witnesses or records they deem relevant.   I should also point out that grand jurors make credibility decisions just like a trial jury does.  They are free to believe all, some or none of a witness’s testimony. 

The biggest irony of your commentary was that although you didn’t have any information about what the grand jury saw or heard, you felt you were in a position to assert, based upon newspaper accounts, that Officer Jones should be made to stand trial for attempted murder.  What did you learn from the newspaper that put you in a better position to judge than those seven grand jurors that heard and evaluated the evidence and took an oath to do justice?

I can’t reveal what the grand jurors thought or said.  Their deliberations are confidential under the law.  But you can assume they saw the same video that you have seen and ruled there was insufficient evidence to charge Officer Jones with any crime.  I would note the video did not take sides or present one version of events.  The video captured equally the actions of both Officer Jones and Jerime Mitchell.  I can also tell you from my 33 years of experience in the justice system that when there is a video, it doesn’t matter much what witnesses say.  The jurors will give more weight to what they are able to see with their own eyes.

While you may question my impartiality, I think it is also important for you to critically evaluate your own.  You sound like an advocate for Jerime Mitchell.  You were highly critical of me and Officer Jones in your paper but I don’t see where you offered any critical analysis about why a fair and impartial body may have questioned Jerime Mitchell’s credibility.  I would offer a few possibilities:

·         According to lab test results, Jerime Mitchell was under the influence of marijuana during his encounter with Officer Jones.

·         Mitchell had two previous felony drug convictions on his record.  This would have been his third felony drug offense and likely would have resulted in a prison term.

·         Mitchell had a pound and a quarter of high grade marijuana, drug scales, $1500, and was in route to making another drug delivery when he was stopped.

I think it is also worthy to note that when Officer Jones first approached Mitchell’s truck, he had every reason to believe his every word and action were being video-recorded.  What motive would he have to engage in misconduct when he thought everything he did and said was being recorded?   

Even though we won’t agree in our thinking, I wanted to confirm I had read your commentary and do respect you for taking the time to write about a subject you are obviously passionate about. Good luck in law school and with passing the bar exam.  Kindest regards, Jerry

Jerry A. Vander Sanden
Linn County Attorney
Linn County Courthouse
Cedar Rapids, IA 52401
Office: (319) 892-6350
Email: jerry.vandersanden@linncounty.org

_________________________________________________________________________

February 27, 2017


Adrian Haughton's Response to County Attorney Vander Sanden


Mr. Vander Sanden,

I would first like to thank you for taking time out of your very busy schedule to respond to my analysis. I honestly did not expect a response as it was not my intention to convince you to see things my way. As you pointed out we will not likely come to a consensus about the outcome. I am grateful to have someone such as yourself whom has been practicing almost as long as I have been alive to give me such feedback on my work. With that said, let me too share some observations about your response.

You told me “I take issue with your assertion that prosecutors cannot be objective when evaluating police conduct.  We do it every day.  It is part of my job to scrutinize their work and evaluate the cases they refer for prosecution.” From this response, I can only assume that I was not clear in my writing and for that I apologize. I was not critiquing a prosecutor’s ability to be objective when evaluating the day to day cases referred for prosecution. I was specifically referring to a prosecutor’s ability to remain objective when it comes to possibly sending a police officer to prison. A police officer whom that prosecutor may have worked with closely, a police officer whom that prosecutor may have relied on for convictions on numerous occasions, a police officer who may have developed a personal relationship maybe even a friendship with that same prosecutor. I do not have the many years of experience that you have however, I imagine it is significantly easier to say “hey Luke, there is not enough evidence to pursue that burglary,” in comparison to “hey Luke, I am going to file charges against you for attempted murder for shooting an unarmed man.” There is a vast difference in the objectivity required to evaluate the work of someone when the two of you are seeking the same goal in comparison to the objectivity required to make a decision that could impact not only the life of the alleged perpetrator but could also impact your career as well. No, I do not believe that someone could be objective in that type of situation. I would actually be frightened by someone who could be objective under those circumstances. We are only human, there is nothing wrong with having human emotions when dealing with people that you work with and may have developed personal relationships. The problem is when we allow those emotions to control us in the pursuit of justice. You said to me, “I’m sure you are developing professional relationships with others in law school.  Do you believe you can’t be objective in your evaluation of their conduct?” Again, not having your many years of experience but as with most things in the law the answer is, it depends. If my objectivity or lack thereof was a large factor which may or may not send them to prison for a long time, the answer is probably no. If I had an ongoing personal and professional relationship with them I would hope my own arrogance would not prevent me from admitting my lack of objectivity and instead allow me to ask someone else to make such a decision in the pursuit of justice.

Another point that I found interesting in your response was when you said “I did check with other prosecutors across the state concerning their practice with presenting officer involved shooting cases to a grand jury.  I could not find one that ever sought an independent prosecutor for this task.  In fact, there is no legal mechanism to ask for a special prosecutor unless there is a legal conflict of interest.  (see section 331.754(2) of the Iowa Code).  The fact that a law officer is involved does not present a legal conflict of interest.” I believe I may have failed to make my point clear here as well and I truly apologize for this. I was not saying that you should have asked the court to appoint a special prosecutor for the task of the grand jury. I was saying that you should have requested a special prosecutor for all decisions on this case, including whether or not to bring charges by information. Section 331.754(2) of the Iowa Code does in fact state that such a request may be granted upon the showing of “a bona fide reason for the disqualification based upon a principle of law or court rule.” Iowa courts have found issue when the situation presented the possibility of a conflict that may be something tainted about the case, State v. Casey (Ct. App. 2009). In such findings it would appear that the court is very concerned about the appearance of the possibility of conflict impacting the integrity of the legal system. “Society as a whole has a right to expect that the system not be tainted by resort to hidden and conflicting agendas." Iowa Supreme Court Atty. Disciplinary Bd. v. Zenor, (Iowa 2005). I understand that these are very different types of cases than that of Officer Jones. However, the principle of law surrounding the possibility of conflict being an issue is applicable. I believe having a working and possible personal relationship with someone is exactly the type of “conflicting agenda” courts may be concerned about. In this particular case, the potential conflict worked out to the advantage of the possible defendant which means there is not going to be a challenge to this conflict. If the charges were against someone in your own office would you not seek outside counsel to handle the case? The same should apply when it comes to officers that you constantly rely on when the allegations are against them.

You may have been partially correct when you said “it is clear to me you have no understanding how the grand jury process works. The prosecutor does not present a theory of a crime.” My grand jury knowledge is in fact limited but I do thank you for this comment. Because of this comment, I realized that I missed the citation for the quote that I paraphrased. The actual article, Who Shouldn’t Prosecute the Police, 101 Iowa L. Rev. 1447, 1473 (2016) says, “At a usual grand jury presentation, the prosecutor presents her theory of the case, examines a few witnesses who support that theory, and displays evidence that coheres.” This was written by Assistant Professor of Law at St. Johns University, Kate Levine (J.D., Harvard Law School (cum laude)). She teaches Criminal Law and Contemporary Topics in Criminal Law. I want to make sure that I credit Professor Levine for her articles insight so I will be sure to correct that oversight for future publications.

I also found it very interesting that what you perceived to be the “biggest irony” of my commentary was the fact that I was able to come to the conclusion that Jones should be made to stand trial. In your response you minimized my research of this subject to learning from “newspaper accounts.” I will admit, as I did in my statement that my analysis was based on limited information due to the secrecy surrounding the grand jury. But, to be completely honest it was not the newspapers that led me to this conclusion. The most telling information for me were the words that came directly from you. You held a press conference after the grand jury came back with their no bill ruling. I watched that press conference multiple times, I paid attention to what you said happened, the order in which you said things happened, and your overall tone of how you said it happened. I also watched video from your appearance at the African American Museum.  Your statements, in conjunction with the dash-cam video led me to believe that Lucas Jones should have stood trial for attempted murder. I watched that video repeatedly, at regular speed, at ¼ speed, over and over and over again. No matter how many times I watched it, it just did not add up. I began my research with an open mind but no matter what there were too many holes, too many questions of fact which should have been decided by a trier of fact. I do not doubt your belief from “33 years of experience in the justice system that when there is a video, it doesn’t matter much what witnesses say.” However, only hearing one side of the story to narrate that video is going to make a significant difference. In your critical analysis on Professor Levine’s understanding of the grand jury process you said “grand jurors make credibility decisions just like a trial jury does.  They are free to believe all, some or none of a witness’s testimony.” The problem here is that they didn’t hear ALL of the witness’s testimony. Based on your response and your statements it can be assumed that they only heard Jones’ testimony. Is it a safe assumption to say that he came in full uniform or his dress blues? Jones was able to get up there and tell a story of a victimized officer. A story that he had plenty of time to get straight with no other story given to counter that story. No audio to support or counter that story. Only an ambiguous video that could also tell a very different story had it had the opportunity to be told but you made sure that did not happen. No the video “did not take sides or present one version of events” but by the way this case was handled and taking into consideration your working and possible personal relationship with Jones, I believe that you did.

I think the part of your response that stood out to me the most was when you told me “While you may question my impartiality, I think it is also important for you to critically evaluate your own.” Whether or not I am being impartial has no relevance on the case at hand. It is not yet my job to determine whether or not someone should stand trial for their actions that power currently rests with you. The fact that you had the audacity to then say that I should also be questioning Mr. Mitchell’s credibility and you then offered prior drug convictions and alleging that a pound of marijuana with money and scales was found in his truck absolutely sickens me. Would you question the credibility of an alleged rape victim because she was also an exotic dancer? This is why I say you are protecting Jones. I know there is no rule requiring you to take this to the grand jury but doing so provided you with the perfect cover. You were able to appear impartial while presenting Jones’ version of events and any other prejudicial information including prior drug convictions. To me, it appears that you presented this information in an effort to discredit the victim. I don’t know if you told the grand jury this but again, there would have been no one there to say that it did not happen that way. The grand jury did not have the opportunity to weigh the witnesses against each other, they only heard what you wanted them to hear. Whether or not Mr. Mitchell had priors bore no relevance to the fact that Jones’ actions likely did not meet the requirements necessary to use deadly force. It seems to me that you pulled an old sleight of hand trick, you had the audience looking at your right hand while you made the real issue disappear with your left. Best of all, your presentation to the grand jury whether it was or was not impartial is shielded by the secrecy of the law and you would not be required to answer for it. This was not a question of whether or not Mr. Mitchell committed a crime punishable by prison. You claimed Jones had already called for backup. When that call was made, I am not sure but let’s assume that he did. Jones knew there were other officers on their way, why would he tell Mr. Mitchell to get out of the vehicle before they arrived? The fact that there were a number of officers in the immediate vicinity tells me that Mr. Mitchell could have easily been brought in without use of deadly force. The issue at hand here was whether or not Jones was justified in his use of force, a question that he should be required to provide evidence to support. Failure to support that use of force should result in his prison term.

Your last point about Jones having “every reason to believe his every word and action were being video-recorded.  What motive would he have to engage in misconduct when he thought everything he did and said was being recorded?” There are just so many issues with that statement. That video without narration says very little to what exactly happened that night. Like I said in my statement, without the audio we have no idea as to what was truly said or who was the aggressive party. You gave a very obscene account of what took place that night, as if you heard it yourself. There are only two people who could have possibly told you what was said and I would be willing to bet that it was not Mr. Mitchell, yet at the press conference you presented that information as if it were fact. I believe it was also in the press conference (I could be mistaken as to when you said it) that you said the batteries on those mics last approximately four hours and that Jones was approaching the end of his eight hour shift. If we pulled Jones’ recordings for the night would there be four hours of recordings? Does that four hours only include recording time or is that also standby time? Are we to believe that the police officers have no protocol for ensuring their batteries are charged? Jones could have easily known that his device was not recording, or perhaps he did not have it turned on or even on his person when he approached the vehicle. Again, yet another question of fact that should have been decided by the trier of fact.

I was, as you pointed out “highly critical of [you] and Officer Jones,” the reason for that being that both of you have a duty to the people of Cedar Rapids (Linn County in your case). I do not believe that duty was honored in this case. I do not mean that as an insult just an observation. Jones has been on the police force for five years and has already shot two people. Some officers go an entire career without discharging their weapon but he has already done it twice, killing one and leaving another paralyzed! This should raise red flags for not only you but for the mayor and chief of police as well. This is not to say that I think that you are generally bad at your job. This is me saying that human emotion and self-preservation may have played a larger role in this case than it should have. When, not if but WHEN Jones shoots someone else I will be front and center and will hopefully have more credibility to stand on with a law license to support my argument. At his current rate of fire I might not be there yet but I will definitely be watching and telling it as I see it to all who are willing to listen. All who refuse to sit by and do nothing while injustice prevails will be watching, we will be watching the criminal justice system… with a thousand eyes.

I reiterate my earlier point, it was not my intention to convince you to see things my way. I am certain that the only thing that we will agree upon is the fact that we will not likely come to a consensus about the outcome. I am grateful to have someone such as yourself, with your experience give me feedback on my work. I believed that I should send this to you as a professional courtesy. As I am beginning my journey into the legal field, I would hope that if someone is going to be critical of my work they would also do the same for me. Again, thank you for your response.

Sincerely,

Adrian A. Haughton