Moving Toward Recommendation, Study Committee Learns Limitations of Prosecutorial Power in Ingham County

The East Lansing Study Committee, charged with recommending how City Council should form an Independent Police Oversight Commission, is making steady progress towards drafting its report, based on the three-hour meeting held this past Monday, Jan. 25. 

At that meeting, the group discussed the important roles an Oversight Commission could play in terms of increasing ELPD transparency and helping improve ELPD policies. The Committee also heard a presentation from Ingham County Prosecuting Attorney Carol A. Siemon and Chief Assistant Prosecuting Attorney Mike Cheltenham and asked the two many questions about what happens when an officer is accused of excessive use of force and their office takes on the case.

Speaking to the role of the prosecutor’s office in handling allegations of misconduct against local law enforcement officers, Siemon said that her office decided to keep as many of these cases “in-house” as possible. She suggested they prefer not to do what they did in the case of ELPD Officer Andrew Stephenson, wherein Siemon asked the Attorney General’s office to assign a different prosecutor. (Stephenson was ultimately exonerated by the Washtenaw prosecutor’s office.)

Both Siemon and Cheltenham emphasized the “struggle” of keeping cases in-house. According to them, cases that involve fatalities automatically go to the Michigan State Police for investigation. Though not a strict rule, the Ingham County Prosecuting Attorneys would prefer to deal with cases that do not rise to this level. Siemon said this process is still a “work in progress.”

 “We are trying to create a situation where we are reviewing our own community, holding ourselves and the community accountable,” she told the Study Committee on Monday. “On the other hand, we’re trying to create a structure that doesn’t lead to potential for bias or conflict of interest. We are going to continue to evaluate this as we see what you [on the Study Committee] are doing.”

Not all Michigan counties operate in this manner, nor do all others across the nation, but Siemon argued that, in terms of professional standards, there is “absolutely zero best practice right now” in how prosecutorial offices decide which cases to keep. Cheltenham clarified the reasoning for wanting to keep cases in-house, stating that remaining transparent and responsive to the local community is of utmost importance.

Among Study Committee members, this raised questions about objectivity, along with concerns about the historically close relationship between local prosecutors and law enforcement, particularly in the context of racial disparities in charges and arrests.

Study Committee member Kelli Ellsworth-Ethchinson asked Siemon how her office was “removing biases” when evaluating cases concerning allegations against police officers, when few police officers are officially charged with criminal acts.

Siemon replied by speaking to the difficulties in formulating cases against law enforcement officers. If prosecutors do not feel they have enough evidence to “prove beyond a reasonable doubt that a crime was committed,” they do not pursue the case. She said she is aware that this “frustrates many citizens” and hoped to work with the Police Oversight Commission when it’s officially formed to discuss some “intermediate steps for holding someone accountable” when allegations do not meet criteria high enough for prosecution.

Siemon also said that her office is working to address the “disproportionate impact” policing has on people of color, particularly African Americans. She cited inequitable arrest and incarceration rates and long-standing institutional biases against racial minorities: “The institutions themselves are racist. There are no major institutions in the United States that are not…How do we improve these structures, bring the right people in and get the wrong people out?”

Committee Chair Chuck Grigsby expressed frustration with the prosecutorial process and reiterated Ellsworth-Etchinson’s concerns about the low probability of police officers being charged, even ones with several complaints against them on record and with what citizens often see as compelling video evidence against them.

Grigsby said, “I know there are good cops out there doing a great job, but there are some bad ones that are really emboldened by this process that does not seem to be getting better.”

Ellsworth-Etchinson and Grigsby also referenced the seeming disparities between how evidence is gathered against average citizens, particularly minorities, compared to police officers accused of criminal acts. Police typically decide what to turn over to prosecutors.

Committee member Cedrick Heraux, who studies use of force as an academic researcher, brought up national and local discussions of “resisting arrest and obstructing justice” charges, stating, “there’s generally a perception that a resisting and obstructing charge is used by an officer in some situations to cover up for uses of force.” He suggested that it makes sense to drop prosecution against a person against whom there are no other charges and to scrutinize these cases carefully.

Both Cheltenham and Siemon spoke to their office’s lack of investigatory power when it comes to making cases against law enforcement. Siemon informed the committee that the prosecutor’s office itself relies fully on the police to carry out investigations and provide evidence. Dealing with limited resources, they have no independent investigators.

“If we don’t get more information from the law enforcement agency,” she said,  “then we can’t go out and get that ourselves.” (In the Stephenson case, Siemon’s office’s work was stymied by misrepresentations by Michigan State Police about the process.)

Siemon added that her office does not work with police department Internal Affairs units “directly” and does not receive reports from them either. Cheltenham addressed Committee questions about how their office gets information and evidence from the police. Essentially, they make requests and hope the police provide.

“There’s not much more you can do than keep asking,” Cheltenham said. “Law enforcement is generally very good about giving us what they have.”

After concluding the discussion with the prosecutors, the Study Committee discussed making decisions on some specific recommendations about functions the future Oversight Commission. Vice Chair Chris Root called this process as “trying to move from having interesting conversations…to actually kind of testing out ‘are we wanting to recommend x?’”

The possible functions discussed in-depth included community outreach and public access to police data. The Committee debated what forms these functions could potentially take in their recommendations, but there was consensus that both were crucial to include as they continue to draft their report.

This week’s agenda packet included a draft section of the committee’s report to Council – this time a section drafted by Heraux that explained the potential benefits of having an oversight commission. Heraux’s draft argues that, “In helping law enforcement agencies prevent critical incidents from developing, oversight bodies can increase an agency’s standing within the community.” Preventing such incidents can also save people from injuries or death, prevent officers from facing the fallout of incidents, and prevent costly lawsuits.

Looking to see what other cities housing Big Ten universities do, Heraux found that “six (6) currently have some measure of civilian oversight, with the earliest (Lincoln, NE) established in 1970 and the most recent (Madison, WI, and Columbus, OH) having been established only in 2020,” but, “while over 60% of other (included) Big Ten jurisdictions have established civilian oversight bodies, all of these serve significantly larger populations with much larger numbers of personnel in these agencies.”

The next meeting of the Study Committee will be on Monday, Feb. 8. This Wednesday, Feb. 3, East Lansing’s Human Rights Commission is set to hear a report from ELPD’s administrations about complaints made against officers.

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