Night of the Bluebonnets.
By Jim Conley • Aug 3rd, 2008 • Email This Post to a Friend •
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There are people in your life who’ve come and gone.
They let you down, you know they hurt your pride.
You better put it all behind you; because life goes on.
If you keep carrying that anger, it’ll eat you up inside.
- Don Henley
Monday evening’s meeting of Brookline’s Citizen Complaint Review Committee (formed out of the mangling of due process in the Arthur Conquest matter) was both high comedy and a tragic exemplar of Brookline town government’s failure to execute the public interest.
The two hour meeting—like several before it—was given over to Brookline Police Chief Daniel O’Leary, who appears repulsed by the prospect that complaints against his department may become easier to lodge. O’Leary was asked for comments on a draft [read here] of the Committee’s ideas thus far and offered up three pages of moaning [read here] in response.
As far as I can tell, the chief’s objection boils down to this — citizens can’t be believed when they complain about police officers. Besides, his crew is the best trained and most professional in the Universe. So people who complain are either uppity or prone to that sort of thing. Got that?
After 90 minutes of this nonsense, the chief extricated himself from the end of the table. Now we’ll hear from some of the citizens assembled, I thought. Oh no, next comes patrolman’s union President Bobby Murphy who tells the Committee of the emotional toll these complaints exact, especially on young officers. According to Murphy, Brookline officers are traumatized by criticism. And those charges that result in a finding of “unsubstantiated” cut the deepest (inasmuch that the officer is not cleared outright).
Okay, time for the citizens. Oops, nope. Here comes the police union’s lawyer (a most forgettable chap) who advises the panel that there is a public records law and that police officers deserve due process too. Thanks for that, Captain Obvious.
It’s one minute before adjournment — time for public comment.
When I asked the Committee’s chairman, Justice Patrick King (ret.), if the panel has plans to hear from complainants who have actually experienced the procedures O’Leary declares as sound, King responds by saying, “We had a public hearing.”
One-sided Reviews Result in One-sided Recommendations.
That they did. And at the pubic hearing the Chief, Murphy and the union’s lawyer were given plenty of opportunity to raise their concerns. Indeed, our local Smithers, Town Administrator Richard Kelliher (who for some explicable reason staffs the panel), made sure that the boys in blue got the last (several) words that evening.
A public hearing noticed on the Town’s Web site counts as seeking out those who have experience in making police complaints? A public hearing offsets the hours of bitching by O’Leary and crew (with the able assistance of panel member Douglas Louison)?
Guess so. Okay then, let’s stop calling this a citizen’s complaint review process. The panel obviously cares little for how citizens might lodge a complaint, and frets endlessly over the protection of thin skinned police officers. But then again, this has never been more than a cover for the Brookline Selectmen (who proved incapable of exercising their official duties by denying Conquest’s appeal of his treatment during May 24, 2007’s Brawl at Town Hall).
I know of no process review—except this one—which consists of hearing from one party ad nauseam while forming its recommendations. A serious effort would seek out those who have had experience with the procedures under exam to understand how they have been employed. I know of no panel—except this one—which would look at the circumstances under which it was created (alleged police mistreatment of a resident in a public building) and then turn the proceedings over to the subject of the allegations and staff it with a town hall obstructionist (i.e., Kelliher).
O’Leary’s defeatism makes him a seriously unreliable interlocutor. So, why is the Committee letting him speak for past complainants?
Now, maybe it’s hard to find those people who dropped a dime on a cop. And complainants may be reluctant to meet with the Committee in public. To my knowledge, though, the Committee hasn’t even tried to contact people with first hand experience under the current policy and procedures. For pity’s sake, put Smithers on the case.
Depends on What You Mean by Witness.
It seems to me that there are two questions which need to be answered by this Committee. First, do the current practices allow citizens to address their grievances? And second, is this policy—or any future iteration—administered responsibly? No, and God no.
I mean, these jokers took a complaint over rude treatment and turned it into a racial profiling cause of action.
Conquest, pictured left, never asked the police department to investigate the racial aspects of his treatment by police [read the complaining letter here]. It was O’Leary’s internal affairs officer who alleged racial discrimination. Why? Well, it sure looks to me like the internal affairs officer (Lt. Stephen Burke) made the allegation without first talking to witnesses.
No one should be surprised by the bumbling of O’Leary’s in-bred department; it’s been hopelessly politicized. His is a PD that takes the (fabricated) word of a complaining witness (former ZBA member Lawrence Kaplan) on “alleged assault” at the hands mouth of Conquest and rushes it to the charging magistrate. But on Monday evening, on the matter of citizen complaints, O’Leary and Murphy bemoaned that most of these actions amount to he said-she said tiffs which are impossible to prove.
Wait a minute. The incident with Conquest matter involved eight additional witnesses who provide a remarkably consistent version of events, all say that Conquest was treated poorly. So, we’ll take a criminal charge to the bar on the statement of a Yahoo with Portfolio, but won’t take the word of a citizen because it might lead to a demerit against an officer? Impossible to prove can be relative, I guess.
What surprises me is the Department’s insistence that they are delicate flowers who need to be protected from a non-adoring public. Maybe O’Leary’s sensitivity training has gone overboard, because I wonder what job they think they signed up for. Police work often results in conflict, sometimes brought on by rather poor people skills on the part of the officer. That’s news?
Here’s a bit of wisdom passed down by the legion of public servants — if you find it arduous to work in a public position (or to exercise out-sized authority over the public), don’t do it. Quit. Get a security job. Drive a cab. Practice law full time.
If you choose to stay on the public force, then expect that there will be complaints. And sometimes those complaints will be unfairly lodged. Deal with it. Because in a free society, we tilt the protections to the citizens instead of the police. It’s one way we avoid that nasty thing called a police state.
Now I can see how all of this could be lost on those in the trenches, but I can’t see how a so-called panel of experts in civil liberties and anti-discrimination law would indulge the Department’s nonsense.
But then there’s a reason these folks were invited onto the panel. And those who know what they are doing were not…or don’t bother to show up.
Jim Conley is publisher of On Brookline.
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THE ELEPHANT IN THE ROOM?
The elephant at the public hearings of the Citizen Complaint Review Committee is the October 2007 report of BPD Lt. Burke on his investigation of the complaint of Arthur Conquest concerning certain events of May 24, 2007. The Committee’s “Recommendations for Changes … “ document linked to in the above post suggests that Committee members (or some of them) have read Lt. Burke’s report. However, the Committee has not, to my knowledge, publicly set forth a full critique of Lt. Burke’s report.
Perhaps it is the Committee’s view that its role is limited to the BPD complaint procedure and process. But this elephant – Lt. Burke’s report – is an integral part of the Committee’s mission and cannot, should not, be ignored. Without Lt. Burke’s report, most likely no Committee would have been appointed.
Consider that the date of Lt. Burke’s report is more than four (4) months following Conquest’s complaint filed early in June of 2007. Was Lt. Burke’s investigation fairly conducted? Was Lt. Burke’s report a fair reflection of his investigation? If not, shouldn’t the Committee point this out in detail and focus on the reasons? Did this result from inadequacies of the BPD complaint procedure or the manner in which it was implemented, or both?
How can the Committee ignore the elephant casting its shadow over the Committee’s public hearings in the performance of its mission?
Here is one of the Committee’s recommendations:
“O. Investigative Techniques:
• We recommend that the accuracy of IAO report be improved by
requiring the investigator to make an effort to take statements by one
of the following methods:
- taped (audio or video) statements,
- statements that are written by the investigator or the complainant and
reviewed for accuracy and signed by the complainant, or
- statements that are written by the investigator or the complainant,
but that the complainant does not want to sign for whatever reason, but
reviewed by complainant with the opportunity to make any necessary
corrections.”
How was this subject handled in the course of Lt. Burke’s investigation of Conquest’s complaint? Has Lt. Burke provided to the Committee all of the back-up materials generated in the course of the investigation he conducted? Has the Committee been offered testimony before it by any of the witnesses interviewed by Lt. Burke who may have questioned the accuracy of Lt. Burke’s report as it related to what they had told him?
The Committee in its “Recommendations … ” makes the following observations:
“4. INTERNAL AFFAIRS/STAFF INSPECTION OFFICER & PROCEDURES
Section N requires that lAO’s findings and conclusions meet certain
requirements. A review of the IAO reports suggests that those reports
often do not comply with the following requirements.
• Report should include a chronological list of similar complaints
against the officer, if any, along with the outcome of such complaints.
• Report should highlight areas of disagreement with regard to
statements of witnesses concerning the incident in question.
• Report should contain pertinent factual assertions of all witnesses
interviewed.
• Report should make findings concerning credibility of the witnesses
and state objective reasons for giving credence to one version of what
happened.1″
“I In 80 percent of the cases there is a finding that the complaint is ‘not
sustained,’ that is, the allegation cannot be either proved or disproved. These
cases typically involve a citizen complaint involving a police officer’s conduct
where there is no independent corroboration concerning what happened. It
should be the exceptional case where lAO does not know who to believe.”
How do these observations reflect upon Lt. Burke’s October 2007 report on his investigation of Conquest’s Complaint? If the Committee is of the view that Lt. Burke’s report failed to comply with some or all of the noted requirements, is the problem the implementation of the complaint procedure? If so, might that suggest to the Committee the need for an independent police review board rather than an in-house BPD review?
The Committee’s “Recommendations … “ document closes with:
“MISCELLANEOUS
• Issue guidelines and procedures for when civilian town officials and
employees can issue “no trespass” orders and procedures that a citizen
can follow to have a ‘no trespass” order lifted.
• Adopt a policy for procedures to be followed by police officers whose
objectivity can be called into question including “conflict of interest”
situations.
• Selectman should consider establishing guidelines to be followed
when police officers seek the issuance of criminal complaints in
misdemeanor cases where police are not witnesses to the alleged
crime.”
BPD Police Chief O’Leary responded:
“Miscellaneous Section
- No trespass orders - a lot of this is governed by law
- Conflict of Interest - we are currently undergoing a review of our
Department’s Polices and Procedures. This review is probably the
better place to review this issue.
- Criminal Complaints - again, we are guided by law on this. We also
have a system of checks and balances on these matters such as report
review, supervisory review and review by the courts.”
I wonder if “no trespass orders” as applied by the Town, whether by BPD or civilian officials, are “governed by law.” Perhaps both the Committee and Chief could clarify what is the “law” on “no trespass orders” outside of the Commonwealth’s judicial system.
As to “Conflict of Interest,” the Chief’s response might suggest that the BPD’s Policies and Procedures addresses conflicts of interest regarding BPD personnel. What, if anything, does such Policies and Procedures document say about BPD personnel who are attorneys and practice law on their own time? For example, Brookline Police Lieutenant Richard E. Allen is listed in the 2008 MA Lawyers Diary and Manual as “Of Counsel” to the Law Firm “R Allen LLP” at 300 Washington Street, Brookline, his brother, who is also a Brookline Selectman. How does the BPD address potential conflicts with this relationship?
As to the criminal complaint process, this is where the “Elephant in the Room” pops up. Consider the steps taken regarding a criminal complaint against Conquest set forth in Lt. Burke’s report. The Chief’s “checks and balances” were “assisted” by the defensive steps taken by Conquest that prosecuting officer Lt. Harrington handled so adroitly, perhaps to avoid further embarrassment to the BPD. But what might have resulted IF Conquest had not taken his defensive steps?