Chief Koval's Blog

A Perspective Beyond Legal Posturing

February 24, 2017 1:58 PM

First things first.  As we approach the anniversary of Tony Robinson's death (3/6), I must again express my condolences to the Robinson's, their family, and their friends.  No amount of money can assuage their grief and loss. As a father of two adult sons, I cannot even fathom what it would be like to wake up and not be able to call them, hug them, and encourage them in the pursuit of their dreams.  All of our police officers go about the daily business of trying to protect and enhance life; no one would have ever wanted such a tragic outcome.

In the aftermath of yesterday's announced settlement in a federal lawsuit brought by the Robinson estate, I feel compelled to comment.  Some statements were made in the press conference convened by attorneys for the plaintiff – attorneys who work for a national firm from Chicago specializing in police misconduct cases – that I take issue with.  These attorneys decided this was an opportune time to conduct a one-sided presentation of what their closing arguments would have been.  Cherry picking those facts that are most conducive to their case and supported by "their" forensic experts is a great "shock and awe" technique to use before a jury; but there are two sides to this lawsuit.

Regrettably, since these lawyers raised the possibility of pursuing or encouraging legal action against Officer Kenny, my ability to respond with a point-by-point rebuttal is constrained by advice from the City Attorney's Office.  But I must challenge, in general terms, some of the sweeping pronouncements that were proclaimed by a team anxious to prove that a settlement is indicative of "fault."  That is contrary to the actual terms of the agreement which indicate that there is no admission of liability for any claimed injuries or damages. 

Expressed indignation from the Robinson legal team promoting the notion that no one settles unless they think they are about to lose is a gate that swings both ways . . .if they thought their case was that good, was the amount they "settled" for the same amount that they sought when the suit was first filed or as the trial approached?  I'm betting "no." Though apparently unwilling to state the obvious, every party to a lawsuit, at some point, will use an algorithm based on risk assessment and the possibility of losing . . .and they agreed to "settle" the case as opposed to taking on the possibility of losing.  Spare me the diatribes that this had nothing to do with a business platform. . .it has everything to do with  a calculated cost/benefit analysis.  The Madison Police Department was ready to go to court and that decision was made for us, not by us.

Much of the press conference focused on MPD's administrative internal review, suggesting it was flawed and did not go far enough.  I guess that's an appropriate position of an "advocate," but let's examine it from the vantage point of the judge who granted summary judgment for the City of Madison Police Department on 2/13/17.  In his written opinion, Judge Peterson noted that he granted the City's removal because "plaintiff (Robinson estate) cannot establish that there was a policy or widespread practice of shoddy investigation of officer-involved shootings, or that the City was aware of and deliberately indifferent to a problem with those investigations, or that the shoddy investigations were the "moving force" behind Kenny's use of force."

For the benefit of our community, let's take a closer look at the parameters of what is included as part of the administrative review process:

  • As part of the initial criminal investigation, officers are subjected to an in-depth interview.This interview – like the entire criminal investigation - is conducted by an independent agency (the Department of Justice's Division of Criminal Investigation - DCI).  These interviews take hours and are thoroughly documented.  By the way, by providing a statement, the officer is basically waiving his Fifth Amendment rights on self-incrimination.
  • The DCI investigation will also include witness interviews, medical records, physical evidence and other information relevant to the incident.  This will typically result in hundreds of pages of reports.
  • The focus of the DCI investigation will be on the force used by the officer.  While the DA's standard for making a charging decision (something that can be proved beyond a reasonable doubt) is not the same as the MPD standard for policy compliance, the relevant conduct and focus of the DCI investigation is on the same behavior (the appropriateness of the use of force).
  • After the criminal review, the MPD internal process will largely rely on the DCI investigation, as there is no need to re-interview individuals, re-collect evidence, etc.  Indeed, relying on this investigative information--generated by an independent agency--should generate more trust in the internal MPD process (since any potential for bias created by MPD personnel conducting the actual investigation is not present).
  • If a review of the DCI investigation shows that additional investigation is needed to address issues specific to MPD policy, then our Professional Standards Unit will do so.  This could (and has) included additional interviews by Professional Standards.
  • MPD has a robust and transparent internal discipline process.  The Department takes disciplinary or corrective action against employees when warranted, and take the additional proactive step of releasing significant disciplinary case outcomes to the public. (It should be noted that part of the commissioned review authorized by the Common Council will include review of our Professional Standards process).

Thus, I will state that I am confident in both the process and outcome of MPD's internal review of the incident.  Indeed, as stated above, the judge (in removing the City from this case)--expressly rejected the contention that MPD's internal investigation process was inadequate.  The internal investigation was proactively released by MPD and has been available for public review.  I do not intend to re-open MPD's internal investigation into this incident nor do I see grounds for any further criminal review of this incident.

Finally, I would expect people to wonder about the next assignment awaiting Officer Kenny.  Last fall, Officer Kenny exercised his contractual rights to use his seniority in selecting an assignment in Patrol Services.  And while Officer Kenny is entitled to his option, Officer Kenny has come to me and discussed what he feels is in the community's as well as the Department's best interests.  Officer Kenny is committed to his dual roles of assisting our Training Team as well as playing a seminal role in growing our Mounted Horse Patrol.  Thus, Officer Kenny has requested to remain in the training/mounted position and I believe this was an insightful request and therefore approved.

A lawsuit of this scale will certainly have a chilling effect on officers in the field as well as our efforts to recruit the best and the brightest to join our ranks.  Be that as it may, I know my workforce will rise to yet another challenge and demonstrate unequivocally to our constituents that MPD is still striving to serve with care and compassion.  Unlike other cities where adversity can create a bunker mindset as well as a de facto policy of de-policing (where officers only respond to radio calls for service and do nothing more), our Department will be even more affirmative in our engagement efforts.  We need to build authentic relationships of trust in order to forge partnerships that can work well collaboratively.  

Posted by: Chief Koval

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