Rights of officers who are accused of crimes

January 8, 2009 7:44:06 PM PST
It has been a week since the fatal shooting of 22-year-old Oscar Grant by BART police, but the officer who pulled the trigger still has not been interviewed about what happened. ABC7 checked in with law enforcement experts about this, many of them critical of how BART investigators have handled this explosive case.

When officer Johannes Mehserle resigned Wednesday, he still had not talked to BART investigators. Every law enforcement expert ABC7 spoke to said they should have interviewed him quickly.

"The first thing we would do is isolate the officer, get an interview right away with our homicide unit," said Frank Jordan, former mayor and police chief of San Francisco.

Security consultant and former FBI agent Rick Smith explains why that is important.

"You don't want a long period of time to occur where he could come up with a better story as to what happened or get counsel as to what he should say," said Smith.

"I've been through this with my own officers and it's a very, very difficult occurrence," said Gary Delagnes, president of the San Francisco Police Officers Association. "The worst in a policeman's life, a police officer's life, is to fire their firearm. So it's unfortunate that people forget that police officers have rights as well," said Delagnes.

But an officer can refuse to talk to investigators in the hours or even days after an incident. They, too, have rights which are outlined in the California Public Safety Officers Bill of Rights Act. It reads in part, "the interview shall be conducted preferably when the officer is on duty." It also states they have to be informed about the nature of the investigation, they have the right to get a lawyer, and if the investigation is criminal, the officer has a constitutional right to remain silent.

However, that is where an internal administrative probe differs from a court of law. If the officer refuses to cooperate, investigators can compel him to talk with conditions.

"You must answer those questions, but whatever you say in those administrative hearings cannot be used against you in a criminal investigation," said Delagnes.

Harry Low is a former judge and San Francisco Police Commission president. He says tensions from high profile cases such as this one can by minimized by strong police supervision. But he says the BART Police Department is like many small cities.

"Unfortunately, they don't have the structure of a police commission or an office of citizens complaint or anything similar to that," said Low.

BART says they kept trying to schedule an interview with Mesherle, but his attorney kept delaying the date of the hearing. He resigned on Wednesday. Since Mehserle is no longer an officer, he is no longer compelled to speak to BART investigators.

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