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ON THE DEFENSIVE: Analyzing law enforcement’s use of deadly force

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and served two terms on the board of the National Association of Criminal Defense Lawyers.

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and previously served two terms on the board of the National Association of Criminal Defense Lawyers.

The adage that prosecutors can “indict a ham sandwich” has been called into question recently, when grand juries declined to prosecute officers involved in the deaths of Michael Brown in Ferguson, Mo., and Eric Garner in New York.

Milwaukee is grappling with its own “Ferguson.” District Attorney John Chisholm is reviewing the matter involving Dontre Hamilton, who was shot and killed by Milwaukee Police Officer Christopher Manney.

Chisholm has acknowledged repeatedly the fact that the buck stops with him. Unlike the Garner and Brown prosecutors, he is not shielding himself behind the decisions of an anonymous grand jury.

The job of a prosecutor, as Chisholm has noted, is to bring criminal charges only when the prosecutor is convinced those charges can be proven beyond a reasonable doubt.

The prevailing, but not uniform, view among defense attorneys is that the officers in those cases should be charged. There are at least two reasons for that view.

First, most criminal lawyers have defended people charged with crimes for much less egregious conduct. Take for example the all-too-familiar “one-punch homicide” prosecutions, in which someone faces a felony murder charge because an ordinary punch happened to be a fatal blow.

Second, most defense attorneys harbor some degree of mistrust toward police officers and remain skeptical of their versions of events.

It is somewhat ironic that many defense lawyers support using the criminal justice system to handle those matters. Traditionally, defense lawyers have opposed using the criminal justice system to effect societal change.

Defense lawyers also are keenly aware of the devastating effect criminal prosecutions have on defendants and their families.

Each of those cases involving police officers would be extraordinarily difficult for prosecutors to prove, and a verdict of not guilty almost surely would result in even more rioting and protesting than a refusal to prosecute would.

Additionally, a criminal prosecution does nothing to enhance the relationship between the officers and the community.

Any deterrent effect that might be established could run contrary to the goals of the prosecution. Officers may be less inclined to use any amount of force, thereby resulting in harm to themselves or innocent civilians.

The solution to use-of-force problems is not in prosecuting and imposing prison sentences against the officers. In fact, three steps could be taken immediately.

First, officers should be outfitted with body cameras. Second, officers always should be armed with nonlethal options, such as pepper spray or Tasers.

And third, the defense bar should be involved in police training because having that alternate point-of-view would help officers reflect on their behavior and assess how they should handle difficult or questionable encounters.

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