The Salt Lake Tribune Gets It Wrong: Former West Valley City Police Detective Shaun Cowley
By Ken K. Gourdin
Note: To anyone who might be prone, given the foregoing headline, to dismiss my opinion as mere to mindless criticism of what appears in the Tribune and as an out-of-hand dismissal ofwhat I read in its pages, my message is, “Don’t despair.” In the interest of even-handed fairness, this entry and the next will describe, respectively, an instance in which I believe the Tribune got it wrong and one in which I believe it got it right.
* * *
Given the recent resignation of former West Valley City Detective Shaun Cowley, these points may be moot (at least in his particular case). However, I take serious issue with a recent Salt Lake Tribune editorial about the case, available here and last accessed June 14, 2015:
My problems with this editorial begin in the lede. It begins, “Whatever it takes, however much it costs, West Valley City must make sure that Shaun Cowley never again prowls the streets of that community with a badge and a gun.” The word editorial writers chose to use to describe Cowley’s alleged actions was not patrol; it was not protect; it was not any other word normally used to describe usual police actions; it was prowl, thus putting Cowley in the same category as many of the people he arrested during his career. Nope! Nothing inflammatory there!
And whatever it takes to bring Cowley down—however long it takes, and no matter how much money or other resources are expended in doing so, and even though the criminal case against him was dismissed and the administrative action resulting in his firing was overturned? How many times has the Tribune editorialized against alleged “witch hunts” (my term) and against the alleged wasteful expenditure of money, time, and other resources in an effort to investigate, and to prosecute (or to persecute, depending on whose ox is being gored), other alleged wrongdoing that the Tribune decides is trivial, or against people whom the Tribune and other media outlets decline to prosecute or to convict in the court of public opinion?
“Public faith in the criminal justice system,” the Tribune tells us, “a system that cannot function without the people’s trust, depends” on barring people such as Cowley—people who have never been convicted of a crime, and against whom administrative action which has been attempted has not been allowed to stand—from law enforcement. Maybe I’m old fashioned, but even if these ideals are more aspirational than reflections of reality, I still believe in the old adages that it’s better for a hundred guilty men to go free than for one innocent man to be convicted, and that a man is innocent unless and until proven guilty. Thus, maintaining faith in the criminal justice system depends, not on convicting unpopular defendants in the court of public opinion when such attempts fail in a court of law, but, rather, on learning to live with verdicts that many of us may not like.
Maybe Shaun Cowley deserved to be fired—if not for his shooting of Willard, then for other misconduct in which he is alleged to have engaged. But too many people (including many who control the media’s bully pulpits and who, as a result, disproportionately affect public opinion) decide, a priori, who is “guilty,” proceding on the basis of the weight of a subject’s unpopularity and the unpopularity of what he’s accused of rather than on the weight of the evidence.
And absent a trial or other proceding intended to produce such a result, how do the Tribune, many other media outlets, and those in the public who rush to render judgment in the court of public opinion know who’s guilty or who’s deserving of administrative punishment and who’s not? Are such results, rather than being determined through established legal and administrative processes, instead, divinable through use of a crystal ball or a magic talisman, to which those of us who actually favor allowing such processes to play out before rendering our own verdicts lack access?
While, in practice, this may be more of an ideal to which our system of justice aspires than a goal it actually achieves, as much as possible, we should strive to ensure that rights, due process, and procedural protections are afforded to everyone. In their distrust of authority, too many people seem to want to say, “Rights, procedural protections, and due process for me, but not for thee—especially when thou art a law enforcement officer.” But we shouldn’t get to pick and choose who gets these benefits based on how unpopular a defendant, his alleged actions, and his profession might be. In fact, fairness and justice demand that these benefits be extended, insofar as possible, to everyone. And the more unpopular a defendant, the accusations against him, and his profession are, the more he needs those benefits.
Now, a word about Shaun Cowley’s actions. I’m not necessarily a Cowley apologist. In discussing his case with my father, a retired 43 year veteran of law enforcement, he asked me if—even with my limitations—I thought I could have gotten out of the way of Danielle Willard’s vehicle without shooting at her. (I have Cerebral Palsy, and I walk with a pair of forearm crutches—or with a pronounced limp without them.) I told him, limitations notwithstanding, that I thought I could have.
My assertion in the foregoing paragraph, however, comes with a caveat: imposing a duty to retreat on law enforcement in circumstances in which they now are allowed to use deadly force might introduce even more complications into a job that, too often, already is greatly complicated. It’s easy to second-guess split-second, life-or-death decisions in the illuminating glare of hindsight, and imposing such a duty might put law enforcement in a no-win situation, in which officers are criticized both for shooting when they shouldn’t and for not shooting when they should. That’s problematic, because officers have are allowed to use deadly force to protect not only themselves, but also everyone else in the communities they serve.
While this ideal is aspirational, and while it reflects reality to varying degrees in various cases and circumstances, wherever the weight of public opinion leans on a matter, as much as possible, charging decisions, preliminary hearing results, and administrative actions should not be based on such public sentiment. In my Deseret News Op-Ed regarding the case, I wrote:
In a court of law (unlike in the court of public opinion) it doesn’t matter what anybody “knows,” or how sympathetic a victim is: it only matters what they can prove. Whatever anyone’s opinion of the justness of a given case, rulings and verdicts should be based on the law and on the evidence.1
Now, about Salt Lake County District Attorney Sim Gill’s handling of the case. Had I been Gill, I would have approached the Cowley case the same way St. Louis County District Attorney Robert McCulloch approached the case of former Ferguson, Mo. police officer Darren Wilson, who fatally shot Michael Brown: I would have presented every scintilla of evidence I had to a grand jury and let it decide what charges, if any, should have been filed. A decision to not indict in the Cowley case would have been greeted with the same skepticism as was that decision in the Wilson case, but if a grand jury had made that decision, at least the onus would have been on members of the community rather than on a single prosecutor.
The Tribune notes that Salt Lake County District Attorney Sim “Gill also filed a criminal manslaughter charge against Cowley, but that case was dismissed by a state judge for insufficient evidence.” So . . . dismissing the criminal case against Cowley for lack of evidence was proper, but overturning, for essentially the same reason, the administrative action that resulted in Cowley’s firing was not? The Tribune doesn’t bother to explain the apparent inconsistency: it simply seems to want to have its cake, and to eat it, too.
The Tribune concludes, “[T]he lesson that this city, and every city, should take from this sad case is that they must all have firm and clear rules and procedures in place to make sure that, whenever a police officer deserves to be fired, he stays fired.” That seems suspiciously like an admission that such rules and procedures were not in place before Cowley’s firing, and an endorsement of responding to Cowley’s alleged misconduct by proceding as though they were.
That’s why the Tribune got this one wrong.
|1.||Ken K. Gourdin (October 15, 2014), “Justice system should be the same for everyone,” Deseret News, accessed on line at http://www.deseretnews.com/article/865613139/Justice-system-Same-for-everyone.html?pg=all on June 15, 2015.|