With the federal government now investigating the Baton Rouge Police officer who shot Alton Sterling, the city’s religious leaders Thursday stepped in to question whether the FBI will be fully examining all aspects of the case.
The issue of federal versus state jurisdiction also has opened the door to discussions about where any potential cases will be tried and who will lead the prosecution.
Gov. John Bel Edwards announced on Wednesday that the U.S. Department of Justice would be investigating the fatal shooting. However, the FBI and U.S. Attorney’s office said they were opening it as a federal civil rights investigation.
Members of the faith-based organization Together Baton Rouge held a news conference Thursday morning in which they urged the Department of Justice to go further and explore possible violations of state law from false arrest to second-degree murder.
East Baton Rouge Parish District Attorney Hillar Moore III said in an interview afterward that the FBI is performing the entire investigation because having three rounds of witness interviews and other duplicated effort would only create confusion. However, Moore said, at the conclusion of the FBI’s investigation, agents will be prepared to recommend whether federal, state or no charges are appropriate, Moore said.
Together Baton Rouge lead organizer Broderick Bagert would like Justice Department authorities to confirm their role will be as described by Moore and make their recommendations to prosecutors public when the time comes.
The New Orleans Branch of the FBI did not return calls seeking comment, and the federal prosecutor assigned to Baton Rouge declined comment through a representative.
Though the Justice Department has assumed control of the investigation, it is unclear whether federal or state prosecutors will bring a case to court if the investigation’s findings warrant it.
Harry Rosenberg, a former federal prosecutor, said the U.S. Attorney’s Office can prosecute a murder as a federal crime, but the burden of proof is greater than it is under state laws.
Unless the victim was a federal agent or was murdered on federal land, prosecutors have to show a “willful deprivation of constitutional rights,” which is “very hard to prove,” Rosenberg said.
Those cases are not unheard of, however. Former New Orleans police Officer David Warren was prosecuted on such a charge for the death of Henry Glover in the wake of Hurricane Katrina, though he was later acquitted, Rosenberg said.
Jurists generally have to use the oxymoronic “objective reasonableness” standard to determine whether a defendant had a legitimate fear for his life or the life of another person to determine if the defendant exercised excessive force, Rosenberg said.
Moore pointed out another federal law that is a bit broader and not specific to murder but can be punished by life imprisonment or even the death penalty. It is known as “deprivation of rights under color of law” and covers assaults, rapes, killings and abductions committed by public officials, such as police officers, that are “done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting or pretending to act in the performance of his/her official duties.”
If there isn’t a civil rights case, the federal government likely will have to step aside, and the local district attorney’s office will have nearly unfettered jurisdiction to proceed as it wishes, the former prosecutor continued.
Moore will have to consider the FBI’s evidence and recommendation and decide whether to prosecute the officers under state law, without the burden of proving that rights were violated, only that a crime occurred. However, the district attorney may decide to recuse himself and turn the matter over to the Louisiana attorney general.
Moore said Thursday that it is too early to discuss recusal and that he will review the facts of the case before making a decision.
The attorneys also remarked that the officers present during the shooting may be tried in different venues with different charges, and one or both may face no criminal charges.
If no agency pursues charges, it is “highly, highly unlikely” that the FBI will open its reports to public scrutiny, Rosenberg said.
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