WHITEWASH IN ATHENS

Published in Flagpole Magazine, p. 6 (February 14, 1996).

Author: Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of Law.
 

How many burly Athens cops does it take to subdue a medium-sized, unarmed, naked, mentally disturbed person? The answer is one, provided the policeman fires six bullets from a .40 caliber semiautomatic handgun, striking the person at least three times and killing him.

Furthermore, if the 6 foot 2 inch, 220 pound, armed officer, proficient in the martial arts, claims the 5 foot 8 inch, 155 pound victim was endangering the officer's life, then the slaying is, according to the local district attorney, justifiable homicide.

I have observed the lackadaisical, grudging, slow-motion, uninspired, initiativeless police investigation of the death of Edward Wright, and I have read the DA's report exonerating Sean Potter, who shot Wright. Now I must regretfully inform the public that both the police investigation and the DA's report amount to a whitewash confirming the predictions of those who maintained from the beginning that police and prosecutors investigating the case were closing ranks in support of the officer and behaving defensively rather than proactively.

That the officer who gunned down Wright was being treated with kid gloves from the beginning is evident from the fact that he was not immediately arrested, as any ordinary citizen who killed under such suspicious circumstances would have been. All it takes to arrest on a felony charge is probable cause to believe that the person to be arrested has committed a felony. The concept of probable cause has been watered down by the conservative U. S. Supreme Court; whether there is enough proof to convict, or whether the arrestee may have a good defense, is irrelevant in making a probable cause arrest; and people are arrested every day on the basis of evidence of possible wrongdoing no stronger than the evidence that existed at the time Wright lay bleeding to death. The officer had fired numerous shots at and killed an unarmed, nude person. Why was he not arrested on the spot?

Why did the CCPD apparently not require the officer to file a written report with the department? If such a report was prepared, why has it not been disclosed? And why did police wait over 3 months to release to the public the statement the officer made to the GBI?

The DA's report is a masterpiece of half-truths and bad law. It is written in a tone hostile to Wright, who cannot give his side of the story. It reads more like a brief written by the officer's highpriced lawyer than a dispassionate inquiry undertaken by a zealous and thorough prosecutor. It is a classic case of blaming the victim.

The report blindly accepts the officer's account, repeatedly slants the facts in the officer's favor, and ignores facts that might work against the officer. It asserts, for example, that "forensic investigation of the scene of this incident confirms [the officer's] account in several respects." The report says nothing about to what extent, if any, the officer's account is not confirmed by the facts, or is contrary to the facts, or is not credible. The report does not tell us how far away the victim was when the officer blasted away. And was or was not the victim's finger injury what prosecutors love to call a "defensive wound"?

The report also states that "[a]t the time [the officer] fired his pistol it was obvious that Edward Wright posed an immediate threat to [the] officer ..." In making this statement the report fails to acknowledge that this "fact," while arguable, is hardly obvious. The report does not think it "obvious" that the shooting might have been an overreaction, that the officer might have been acting unreasonably, or that the officer might have been at fault to a significant degree.

To avoid preposterousness, the report does not claim that the Wright killing was a justifiable act of self-defense. Instead the report maintains the death was justifiable because the officer was attempting to arrest Wright for the felony of resisting an officer with violence.

But it is not the law that police may automatically shoot dead anyone who resists them with violence. They may use deadly force in self-defense, or to arrest for a violent crime, only when they have probable cause to believe the felon poses a threat of death or serious bodily harm. The basic principle is that deadly force may never be lawfully used in response to nondeadly force. What deadly force was the victim using?

The report fails to address this central question: Was there probable cause to believe that the officer committed a crime? Grand juries may and do indict people on the basis of probable cause only. This case should be referred to a grand jury; this matter should not be concluded by a police investigation worthy of Inspector Gadget or by a DA report that manifests so little sympathy for victims of police violence and so much commitment to the divine rights of cops.

Ironically, the report suggests we hire more cops. This is typical prosecutorial doublethink; a slaying of a citizen by a policeman is used as the basis for proposing to expand the number of police. Who says prosecutors and police don't scratch each other backs?

One part of the DA's report deserving of credit is where the killing of Edward Wright is called a tragedy. The word tragedy comes from ancient Greek plays with a fatal conclusion, often depicting characters with sobriquets reflecting their true nature or function. If the death of Edward Wright is in the Greek tragic tradition, does not the person who killed him deserve the appellation Six-Shot Sean, Slayer of a Naked Person?