Right to Remain Silent: Is Dallas' New Police Shooting Guideline Good Policy or Double Standard?

On October 14, Bobby Bennett was scooting across a cul-de-sac in an office chair in front of two advancing Dallas police officers. He held a knife, but he stood flat-footed, his arms at his sides, a safe distance from the cops. Seconds later, Officer Cardan Spencer inexplicably opened fire. Bennett doubled over, hit in the gut.

Bennett, a press release later claimed, was "acting violent." An aggravated assault charge followed.

The release of footage from a home surveillance camera completely contradicted the official story, which was apparently based on the recollection of Spencer's partner, Officer Christopher Watson. Shortly after the shooting, he claimed Bennett moved on them, knife raised.

The aggravated assault charge against Bennett has since been dropped. Spencer has been fired. Watson got a 15-day suspension for fibbing. A month later, The Dallas Morning News reported that Chief David Brown quietly changed the rules, creating a three-day grace period following officer-involved shootings during which the officers don't have to answer any questions. What's more, the officer must be given any documentary evidence -- like the video -- that will be used in the investigation.

Brown said the policy change was made with the interests of the department's most important investigations in mind. The science surrounding memory reliability and traumatic incidents is well-established, he said. The DMN talked to a behaviorist who agreed with the chief, concluding that officers involved in shootings need rest before they can accurately recount them. There are some researchers out there, I should point out, who might quibble with the notion that eyewitness testimony becomes more reliable after its had a few days to marinate. But you have to consider the source.

DMN's expert, Dr. Alexis Artwohl, is a law-enforcement consultant who wrote a book titled Deadly Force Encounters: What Cops Need to Know to Physically Prepare For and Survive a Gunfight. The book's advice doesn't end at survival, though; Artwohl offers tips for navigating the legal system, too. She serves a very specific demographic, and it isn't the general public, who could wind up at the other end of one of these "deadly force encounters."

Hard to blame Bennett's attorney for seeing Brown's serious revision of department policy as a double-standard that accords the police psychologically inspired considerations that criminal defendants don't get. Grits for Breakfast doesn't buy for a second that Brown is motivated by science. Over at the Dallas Criminal Defense Lawyer Blog, attorney Robert Guest notes that Spencer didn't give a statement until the next day, after he'd already lawyered up and had a chance to review the tape of him gut-shooting a man who posed no apparent threat.

Maybe Brown reasons that because Spencer waited a day, reviewed the tape and then didn't give an inaccurate accounting of what happened, like his partner, three days of no questioning is the answer.

You could look at it another way, too. If Watson had been immune to investigations for three days, he would have told the truth, knowing well his made-up story wouldn't wash.

Think of the implications Brown's philosophy has for the larger criminal justice system, and not just the defendants locked away on the assumption that the officer is telling the truth unless proven otherwise, like Bennett would have been if not for the video. What does this say about the convictions based on testimony given by eyewitnesses who were under duress at the time, like Brown's officers? We know that the experts say it's horrifyingly unreliable. Exonerations based on false eyewitness testimony in Dallas County bear this out.

What about the defendants who get eviscerated on the witness stand for giving contradictory statements to the police on the day of the alleged crime, and in subsequent interviews, as Grits points out?

Guest sums up pretty perfectly how Brown's new policy looks to the rest of us: "Defendants break rules and face the unbridled wrath of the criminal justice system (which seeks to take their money, time, and sometimes freedom). But what happens when the Government breaks rules? More often than not, the government changes the rules so that they don't get caught again."