Police accountability bill revives decades-long debate about investigative subpoena power
Days before members of the House of Representatives are expected to vote on a robust police accountability bill, the Division of Criminal Justice published New Britain State’s Attorney Brian Preleski’s latest investigation into a police officer’s deadly use of force, the fifth such probe prosecutors have completed in 2020.
Preleski ultimately concluded Waterbury Officer Ronald Tompkins was justified in killing Edward R. Gendron, Jr. as the two struggled over a gun in January of this year. But he concluded his report by issuing three recommendations: that the Judicial Branch help connect people facing eviction to housing and mental health resources; that officials outfit all police with body and dashboard cameras that automatically turn on when an officer draws a firearm; and that prosecutors investigating civilian deaths in police custody be given the power to compel witnesses to come forward and testify, or produce documents relevant to the case.
“When someone is killed by a police officer, we have to consider what might have been done different,” Preleski told reporters Monday morning. “Not only what could have reduced the likelihood of this happening, but what could have assisted in the investigation.”
Preleski’s proposals come as Connecticut, and the nation, reckons with the role of police officers in communities of color, and how to hold them accountable for misconduct and murder. Gendron was white, but his death is still connected to the ongoing conversations about use of force by police, said Kelly Moore, policy counsel for the ACLU of Connecticut.
“There’s no question that police kill people of all demographics,” Moore said. “We need police reform to ensure police don’t kill anyone in Connecticut, regardless of the color of their skin.”
Two of Preleski’s suggestions — police body and dash cameras, and prosecutorial investigative subpoena power — are part of the wide-ranging police accountability bill lawmakers will take up in a special legislative session on July 23. The bill calls for the appointment of an inspector general to investigate police use of deadly force, a change from the current practice in which state’s attorneys conduct the probes.
When someone is killed by a police officer, we have to consider what might have been done different. Not only what could have reduced the likelihood of this happening, but what could have assisted in the investigation.”
It is the call for subpoena power that hearkens back to the legislative sessions of the past. Lawmakers have been grappling with whether to afford that tool to state’s attorneys since at least 1995.
“Connecticut law should be reconsidered, to provide prosecutors with an effective mechanism that enables us to interview uncooperative witnesses at the investigative stage,” Preleski said. “We stand virtually alone in the nation in this regard. My fear is that the next prosecutor investigating one of these incidents will be unable to thoroughly investigate because of this deficiency in Connecticut law.”
Legislators plan to accept prosecutors’ proposals and grant investigative subpoena power to the inspector general, said Rep. Steven Stafstrom, D-Bridgeport, the co-chair of the Judiciary Committee. They will allow the new prosecutor to subpoena records from municipalities and police departments, including the state cops, and to compel testimony from individual police officers.
“I think it’s more important than ever,” Stafstrom said. “And today’s report certainly highlights the need for the IG to be able to compel documents from local police departments because we’ve just seen too many times where they’ve tried to stonewall investigations.”
The suggestion puts criminal justice advocates in a tricky spot. Granting subpoena power would help prosecutors investigate police misconduct when their brothers in blue refuse to cooperate with state’s attorneys’ probes. It also could help them file criminal charges against officers who unjustifiably use deadly force — an outcome that has occurred once since 2001 — which is a change supporters of reform are demanding.
But it also could open the door to state’s attorneys having more power to prosecute crimes that don’t involve police officers, potentially increasing the number of people locked up in state correctional facilities and exacerbating existing racial disparities among the state’s incarcerated population.
“Because the legislature has repeatedly decided state’s attorneys shouldn’t have this power, it might be too much of a slippery slope to open the door to that by allowing the inspector general to have subpoena power,” Moore said. “If state’s attorneys got this power, there’s no reason to think they wouldn’t have yet another tool to harm people who are vulnerable and marginalized in Connecticut.”
‘A terrible loss’
Before he was killed, Gendron, 57, had been distressed at the prospect of being evicted from the home he had lived in for more than 20 years. Preleski’s report states that Gendron’s roommate said he “lost his mind” after he’d been informed he was going to be evicted. He drank heavily and began using methamphetamine. His behavior became erratic. He told his cohabitants he was considering suicide.
Tompkins arrived at Gendron’s Waterbury home on Jan. 20 to perform a welfare check after a neighbor reported what looked like bullet holes had appeared in her wall and ceiling. The Waterbury police officer was not wearing a body camera that day, since his police department does not mandate their use. Preleski’s investigation was based on interviews with multiple witnesses and a police officer, and forensic testing.
When Tompkins confronted Gendron, the distressed man reached for his pistol and said he wanted to shoot the officer. A struggle ensued. After Gendron refused to comply with an order to drop his weapon, Tompkins fired two rounds of his own gun into Gendron’s chest, killing him.
Preleski concluded that Tompkins was justified in using deadly force against Gendron, a man Tompkins believed was about to shoot him. That said, Preleski noted, Gendron was beloved by family and friends.
“His death is a terrible loss, an irreparable tear in the fabric of so many lives,” said Preleski.
Tompkins was the only Waterbury police officer Preleski interviewed in his investigation. Another officer, Daniel Stanton, was outside when the shooting occurred. He repeatedly declined requests to be interviewed, opting to instead submit an 11-sentence report a month and a half after Gendron’s death. Preleski called Stanton’s report “grossly inadequate.”
If there’s a mechanism out there, and Attorney Preleski believes the subpoena power is the mechanism to compel officers, it certainly needs to be researched and brought forward. ”
Because of his refusal to participate in Preleski’s fact-finding, the prosecutor does not know what Stanton heard from his position outside Gendron’s home on the day he died. Also unknown is how many gunshots he heard, or what he heard Gendron and Tompkins talk about before Gendron died.
“While Officer Stanton is entitled to refuse to be interviewed, he must recognize that such conduct only serves to deepen the gulf of mistrust between police and the communities they serve,” Preleski wrote in his report. “Each and every day, Waterbury officers expect civilian witnesses to consent to interviews and cooperate with them in the investigation of routine cases. And every day they do. It is unfortunate that Officer Stanton has chosen not to provide the same level of cooperation that police rely upon from civilians.”
Waterbury Police Chief Fernando C. Spagnolo said police officers rely heavily on the advice of their attorneys when their actions are scrutinized in deadly use of force investigations.
“Attorneys are provided for them through the union, immediately, when officers are involved in this,” he said. “The officers ended up relying on the advice of those attorneys.”
Spagnolo said police shootings are “terrible situations,” and that anything that can make prosecutors’ job easier in completing their investigations should be considered.
“If there’s a mechanism out there, and Attorney Preleski believes the subpoena power is the mechanism to compel officers, it certainly needs to be researched and brought forward,” said Spagnolo.
Preleski’s calls for affording investigative subpoena power to those who investigate police use of force were reinforced by Chief State’s Attorney Richard J. Colangelo, Jr. when he testified on the police accountability bill.
“The Division cannot understate (sic) the fact that if this important reform is to succeed, the Inspector General must have investigative subpoena power and the office must be properly staffed and funded,” Colangelo said. “The Inspector General also must have the ability to compel relevant testimony in the course of these investigations. Connecticut is unique in the nation in that state prosecutors operate without a viable and effective grand jury system and have no investigative subpoena power whatsoever.”
Preleski and Colangelo’s suggestions are echoed by their predecessors. In 1995, retired state’s attorney Robert Satti, Sr., told lawmakers investigative subpoena power is a “necessary tool” for prosecutors. He specifically mentioned that it would be useful in police department investigations. One of his colleagues at the time had been investigating alleged wrongdoing by Waterbury Police, Satti said, but he’d been unable to complete his investigation because he lacked investigative subpoena power.
“He could not compel people to come in and testify,” said Satti.
In 2013, former Chief State’s Attorney Kevin Kane reiterated to members of the Judiciary Committee that state’s attorneys, and the public, would benefit from being granted investigative subpoena power.
“We have no authority whatsoever other than asking a person, ‘Would you like to come into the office so we can ask you questions, can we come and talk to you?’ And if they say no, there’s absolutely nothing we can do,” Kane said. “Crimes can’t be solved without information. But now all we can do is invite them in, and they can say no, politely or not.”
Fears of a ‘slippery slope’
Colangelo and Preleski did not call for investigative subpoena power for all state’s attorneys; they’ve only proposed it be extended to those who investigate police use of deadly force. Advocates and others who work in criminal justice are still wary.
“The issue is, once there’s an investigative subpoena power for one thing, then it’s a legislative slippery slope,” said Christine Rapillo, the state’s Chief Public Defender. “People will decide, ‘Well, we want to make sure we have subpoena power for the next thing, and the next thing.’”
The goal, Rapillo said, is to make sure people’s rights are protected.
Once there’s an investigative subpoena power for one thing, then it’s a legislative slippery slope.”
In her written testimony on the police accountability bill, Rapillo requested lawmakers add protections so people don’t incriminate themselves and place them in danger of prosecution.
“People ought to be able to bring forward their concerns without worry that it’s going to be used against them later,” Rapillo told the CT Mirror in an interview. “We just want to make sure whatever is crafted contains protections for folks because this is going to be a model for whatever else comes down the line.”
Under the current special session bill, Stafstrom said, investigative subpoena power will be granted only to the inspector general. He understands Rapillo’s concerns, but said reports like Preleski’s underscore the need to give investigators all the tools they need to hold police accountable.
“I just don’t believe the IG will be able to do the job we want them to do, thoroughly, without the ability to command documents from police departments and require their testimony,” said Stafstrom.
Also missing from Colangelo’s testimony and Preleski’s report is a proposal to change the state’s use of deadly force law. The current statute allows an investigator to conclude deadly force was justified if an officer had an “objectively reasonable” belief that it was necessary to defend themselves or others. The police accountability bill would narrow the circumstances in which police can use deadly force.
In Moore’s view, it’s not state’s attorneys’ lack of subpoena power that gets in the way of their decision about whether to charge police officers.
“They lack the will and statutory authority to proceed with prosecution,” Moore said.
The ACLU’s perspective is that if the police accountability bill is signed into law, the change in use of force policy and the creation of an inspector general position would go a long way toward holding police accountable, although they do want to see a few changes to ensure the inspector general is truly independent and can prosecute deaths that occur in custody, regardless of whether police use of force was a factor.
Moore sees the decision, since the ’90s, to deny prosecutors investigative subpoena power as a cost-benefit analysis: lawmakers decided, repeatedly, that the risk of giving that power to state’s attorneys was too great, she concluded.
“We think it should not have investigative subpoena power to keep it on a level playing field with the other prosecutors,” Moore said of the inspector general. “Prosecutors’ lack of subpoena power doesn’t get in the way of their ability to prosecute cases, and we don’t see it as getting in the way of the inspector general’s ability to prosecute cases.”
Correction: A previous version of this story misstated the number of deadly force investigations that state’s attorneys have completed this year.
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