Wednesday, November 15, 2000

Officers' silence creates quandary




By Jane Prendergast
The Cincinnati Enquirer

        A week after a suspect suffocated in Cincinnati police custody, the legal waiting game continued Tuesday as officers involved stayed silent.

        This silence has left the city in a legal quandary, set up more than three decades ago by the U.S. Supreme Court. In a 1967 case, Garrity vs. New Jersey, the court held that New Jersey police officers given the choice to talk about alleged ticket fixing or lose their jobs were unfairly coerced into speaking by the threat of losing their livelihood.

        Such coerced confessions stripped them of their consti tutional right to remain silent, and therefore information obtained this way cannot be used to prosecute.

        Translated here, that means city homicide investigators could force their five colleagues involved in the death of Roger Owensby to talk about what happened to the College Hill man Nov. 7 in a Roselawn parking lot. But if the officers are forced to speak, they could not be prosecuted, even if the facts they reveal clearly amount to a crime.

OWENSBY CASE
Owensby
Owensby
    Key events in the death of Roger Owensby:
   • Nov. 7: Mr. Owensby, 29, dies in police custody in a Roselawn parking lot.
   • Nov. 8: An assistant police chief refuses to answer City Council members about what caused Mr. Owensby's death.
   • Nov. 11,12: Council members complain that reports they receive are detailed where facts support police and vague where they do not support police.
   • Nov. 11: The Cincinnati chapter of the NAACP spearheads a rally outside City Hall, calling for the end of killing of African-American men by Cincinnati police officers.
   • Nov. 13: City Council members call a special meeting of council. They ask the FBI and the U.S. Attorney's office to assist in the investigation. One council member asks the city manager to resign.
   • Today: Council members, who have complained about the city manager, could vote him out of office.

        Cincinnati detectives are proceeding with their homicide investigation in the Owensby case, officials said — interviewing witnesses, reviewing evidence and meeting for the first time Tuesday with Hamilton County Prosecutor Mike Allen.

        Despite the many calls for more information by mem bers of City Council and Cincinnati's African-American community, the officers have the same constitutional right as anybody else in a criminal case — the right to remain silent.

        And they'll continue to be paid while they stay on administrative leave. City Manager John Shirey said he can't take their salaries away. That would constitute punishment, he said, and the men haven't been found guilty of anything to warrant punishment.

        The initial officers on the scene that night were doing what the division calls “directed patrol” when they saw Mr. Owensby, 29, in a store, Chief Thomas Streicher said.

        Directed patrol means they had been asked to pay special attention in the area because of complaints, in this case of drug activity. Councilwoman Alicia Reece asked for the extra attention, the chief said.

        Directed patrols are common. A check of dispatch records Tuesday showed at least 24 such requests for various parts of the city.

        The officers recognized Mr. Owensby as “L.A.,” his street nickname, FOP President Keith Fangman said. At least one of the officers had been looking for him for several days, the chief said, since he had escaped arrest for alleged drug activity.

        What happened from there remains unclear because the officers have exercised their right not to talk about it. During the incident, police say, Mr. Owensby resisted arrest, was sprayed with chemical irritant and handcuffed after a physical struggle. They then noticed he was unresponsive. A coroner's preliminary report says he was asphyxiated, either by a choke hold or by officers piling on his back.
       

Past arrests

        Mr. Owensby had been arrested before by Cincinnati officers for drugs. He pleaded guilty last December to possession of drugs and paid a $169 fine. Last month, another Cincinnati officer said he found baggies of marijuana and hashish in Mr. Owensby's pockets, but a Hamilton County grand jury ignored the allegations. He was charged in 1997 with misdemeanor drug abuse, but the charge was dismissed.

        Mr. Owensby also had trouble showing up for court, according to records. Repeated warrants for his arrest were issued in several cases.

        Two weeks before his death, Mr. Owensby was released from the Hamilton County Justice Center, where he sat on a charge of assaulting a restaurant worker last year. He spent nine days behind bars, but the charge was later dismissed.
       

Waiting for answers

        While the investigation of Mr. Owensby's death continues, others — by the police division's Internal Investigations Section and the city's Office of Municipal Investigation — will wait until the homicide investigation is finished. That is common practice, said OMI Director Kimberly Gray, because subsequent investigators don't want to interfere with the first, and possibly criminal, investigation.

        Mr. Allen said his office will handle the prosecution, if any, and does not need the special prosecutor some City Council members suggested.

        “We all need to take a step back and take a deep breath,” he said. “It doesn't do anyone any good to act prematurely.”

        Probes by the FBI, the U.S. Department of Justice and the U.S. attorney's office all began Monday.
       



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