California Attorney General Xavier Becerra needs to be the one who determines whether Sacramento police officers broke the law when they shot and killed Stephon Clark last month, and he needs to do this for the sake of Clark's family, the city of Sacramento and even the prosecutor in whose hands the case currently rests.
That's Sacramento County District Attorney Anne Marie Schubert, who is too compromised and too mistrusted to have the last word on whether Clark's killing was a crime.
Federal case laws give cops wide latitude to use deadly force in the line of duty, and the cops who killed Clark, 22, were recorded yelling that they thought they saw him wielding a gun in a darkened backyard in south Sacramento on March 18. All Clark had was a cellphone.
Because of deadly-force precedent upheld consistently by the U.S. Supreme Court, which gives cops the leeway to kill if they have a "reasonable" fear of being in mortal danger, the cops who killed Clark likely won't face criminal prosecution. The cops were mistaken, tragically so, but they were scared, and being scared is a license for a cop to kill in the eyes of the law. This failed standard of justice is not Schubert's failure, but the country's.
But after weeks of Stephon Clark protestors staging emphatic demonstrations at her office door, we know this: Activists speaking for Clark and his family would never accept a no-prosecution decision from Schubert. Mistrust of Schubert, and flawed California law that complicates cases involving lethal force by cops, prevents the Sacramento DA from proceeding effectively in the case.
In March, Becerra said his office would "provide some independent eyes" by bringing an extra layer of oversight. But he also said, "We're not taking over the investigation."
Well, he needs to take over the investigation. He needs to be held to his pledge that he would file criminal charges if warranted. He needs to bring clarity and independence to this process.
Even people within the law enforcement community are confused by Becerra's current role in the Clark probe. Will his office file a report first? Will Schubert's? Who will be the ultimate authority if cops broke the law in killing Clark? Nobody knows, and the longer nobody knows, the more Schubert remains the target of protests.
A prosecutor is not supposed to judge a case before it even comes to her. Schubert said Wednesday that Sacramento police have not concluded their investigation of the Clark killing and haven't forwarded their findings to her for review.
But the demands for indictment are already loud and persistent. The highest law enforcement officer in the state should step in now and say that he's got this.
Even though the state AG's office may potentially have its own conflicts – like Schubert, AGs take money from cop unions, too – Becerra is at least a layer removed from Schubert. He doesn't deal with Sacramento cops every day as she does. Protesters have been direct about their demands, hanging a banner from the Tower Bridge calling for Schubert to indict the Sacramento cops who killed Clark. Schubert criticized the protesters during her press conference for harassing people outside the DA's office, and Friday a fence was installed around the building. Emotions aren't cooling.
A third party arbiter with authority – and some emotional distance – must provide independent oversight in the Clark case.
Becerra is not required by law to investigate cops, and in truth, his office isn't really equipped for it. Nor does Becerra need this burden in an election year when he's facing a tough opponent such as state Insurance Commissioner Dave Jones.
But April is already drawing to a close, and Becerra's office could not possibly render judgment on the Clark killing before election day on June 5. If he takes on the Clark case, he also shows voters that his toughness extends beyond suing President Donald Trump.
Becerra could also help begin the healing in the city where he was born, raised and attended high school.
The Clark protests have placed Schubert, and other local law enforcement leaders, on public trial like never before. The cozy relationship between the cops and the DA's Office is one reason why Schubert has emerged as the primary target of Clark protests in the last month.
Schubert is hardly the only DA who is too close to cops via financial ties, friendships and powerful bonds within the law enforcement community. In recent decades, no Sacramento cop has been prosecuted for killing anyone in the line of duty. Across the nation, DAs rarely go after cops for using deadly force of the job.
In a sense, Schubert is catching hell for a national criminal justice system crying out for more fairness in holding cops accountable for ending lives. And she's catching hell for her past mistakes.
Even though Schubert began reviewing police involved shootings after her predecessor, Jan Scully, had halted the reviews during a round of budget cuts in 2011, the review process under Schubert has been uneven and criticized. When she declined to prosecute the city cops who killed Joseph Mann, a mentally ill man behaving erratically when he was shot to death in Del Paso Heights in 2016, her findings were indirectly contradicted by the Sacramento Police Department. City cops fired Officer John Tennis for killing Mann. City cops reportedly didn't feel that Tennis needed to use deadly force.
Schubert's office determined that Tennis feared for his life when shooting Mann. But video showed other Sacramento cops trying to apprehend Mann peacefully before Tennis and another Sacramento cop began blasting. Schubert's report also was so sympathetic to the cops, a union rep could have written it.
The DA refused to elaborate on her decision not to prosecute Tennis and his partner, Randy Lozoya, during her press conference. She wouldn't talk about campaign contributions from cops, except to say they were legal. Meanwhile, we're almost through the first quarter of 2018 and her office still hasn't publicly shared any of her reviews from any law enforcement shootings in 2017.
Why do they take so long? Schubert really couldn't say. She couldn't or wouldn't say a lot in response to questions about police involved shootings.
The lack of answers, the cozy DA-cop relationships, cops investigating cops, the lack of transparency in how cop investigations work feed a trust gap between law enforcement and the public that's only going to get worse. Schubert's go-to phrase during her press conference was there is a lot of anger and a lot of frustration," and she understood that. The AG needs to step in before that frustration and anger – and mistrust – from the public boils over into actions everyone regrets.