Tuesday, March 11, 2008

The Wichita PD unveils a controversial new investigation policy - The Wichita NAACP prepares to challenge

The Wichita Police Department has recently updated one of its policies governing internal investigations. The change affects cases where individuals who have been arrested, allege that during the course of their arrest an officer (or officers) acted improperly and that their rights were violated. The new policy requires complainants to waive their right to counsel during the course of the investigation. In fact, complainants are presented with a waiver form that must be completed and signed by defense counsel. (a copy is presented below)

click on the document to open a full size version

This document essentially states that the defense counsel must agree that the Police Department can and will interview the complainant without counsel or representation. If the Defense Counsel refuses to sign the waiver, the investigation will be postponed until all criminal proceedings from the originating arrest have terminated.
That is troubling because it is certainly not uncommon for criminal proceedings to last as long as a year. It is also problematic because at the conclusion of all criminal proceedings, the complainant would be expected to discharge their attorney anyway, so even then the complainant would have to face questioning by trained police investigators without counsel.
If a complainant agrees to these terms and gets the form completed and signed by their defense team, they will then be informed that while the purpose of the Professional Standards investigation is not to further develop the case against them, anything that they say that is incriminating in nature will be turned over to the prosecution. So by proceeding with their claim, the complainant assumes the risk of self-incrimination; and by that point they will have waived their right to counsel. But while the complainant is not allowed to have any representation present during questioning, officers who are questioned as a part of the investigation may be accompanied by Union representation.
Now I'm no Ivy League Law Professor, ...but I Did stay at a Holiday Inn Express last night and I know enough to know that this policy does not pass the smell test.
Mary Dean (The Wichita NAACP Legal Redress Chair) and I met with the office of Professional Standards regarding this policy change. And while they politely argued that this policy had been approved by the City Attorney, we asserted our position that we believe the policy to be at the least unethical, and possibly even unconstitutional.

We suggested that the third bullet point in the waiver be changed to state that if the written waiver is refused then the complainant will be allowed to proceed forth with the investigation under the advisement of counsel. WPD rejected that. We then suggested that the waiver be scrapped completely and that the complainants be afforded their full Miranda rights. They again stated that it was the position of the City Attorney that this policy and waiver (as currently worded) was legal.
For the Record: We strongly disagree with the position of the WPD Professional Standards Department and the City's Legal Department and we are prepared to press our case. If someone alleges that their rights have been violated during the course of an arrest, those charges should be promptly investigated. An internal investigation of police activity should not be contingent upon the complainant's willingness to waive their basic rights under Miranda or their constitutional protection from self-incrimination. Allegations of Officer misconduct or malfeasance during the course of an arrest, if sustained, could prove germane to any subsequent criminal proceedings and therefore should NOT be delayed or postponed.

We have since called for a meeting with the City's Interim City Manager and we will post the changes and updates to this story as they come.

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