Legal Community Divided over Standard of Review in Suspect's Death

By Gina Barton, Guest Journalist Blogger
Reporter, Milwaukee Journal Sentinel

What is the definition of an intentional failure?

Debate over the answer to that question divides the legal community in Milwaukee after the death of Derek Williams, who died after gasping for breath and begging for help in the back of a Milwaukee police car.

Officials at the Milwaukee Police Department, Milwaukee County District Attorney's office and at the city's civilian Fire and Police Commission all watched a squad video that captured Williams' eight-minute struggle to breathe and concluded officers did nothing wrong.

After an investigation by the Milwaukee Journal Sentinel, which included a 10-month battle for a copy of the video, the medical examiner's office changed its ruling on the manner of death from natural to homicide. As a result of the revised findings, the district attorney re-opened the case, appointing a special prosecutor and calling for an inquest.

The inquest jury found probable cause to charge three Milwaukee police officers with the misdemeanor crime of failure to render aid by law enforcement, a misdemeanor.
The statute reads: "Any peace officer, while acting in the course of employment or under the authority of employment, who intentionally fails to render or make arrangements for any necessary first aid for any person in his or her actual custody is guilty of a Class A misdemeanor if bodily harm results from the failure. This subsection applies whether the custody is lawful or unlawful and whether the custody is actual or constructive."

In the view of John Franke, the special prosecutor, the law requires that an officer "knew that first aid was necessary and either had the purpose of causing bodily harm or was aware that his conduct was practically certain to cause bodily harm," according to the jury instructions at the Williams inquest, which were written by Franke and approved by presiding Judge Kevin Martens.

Franke didn't charge the officers despite the jury's finding, saying he didn't think he could prove the officers knew Williams would suffer harm if they didn't call for help.

Jonathan Safran, who represents Williams' family, disagrees with Franke's analysis.

Safran believes the only "intent" required by the law is that the officer "intentionally failed" to render aid. Not calling 9-1-1 for someone who needed medical assistance would qualify, in his opinion. But if an officer, for example, tried to call but got a busy signal, the failure to get help wouldn't be intentional.

Safran does not believe there is a statutory requirement that the officer either intended to cause harm or that the officer was certain that harm would result.

"A reasonable person looking at the video in the back of the squad car should have reasonably determined that Mr. Williams needed first aid," Safran said.

Spencer Coggs, a former state representative who helped write the law, said Williams' death was exactly the type of situation state legislators had in mind when they passed it.

"What we were trying to do is make sure that if a person was in custody, the person was at least in a safe environment from a health standpoint," said Coggs, now Milwaukee treasurer. "In the ... Williams case, that just didn't happen."

The officers were not disciplined and are back on the street.

Which interpretation is right? Should the law be re-written, or is it being misinterpreted? I would welcome any and all opinions, as well as examples of laws in other states that have been used to hold officers accountable in similar situations. I can be reached at gbarton@jrn.com.

Gina Barton is a law enforcement investigative reporter at the Milwaukee Journal Sentinel. Her reporting on the Derek Williams story earned her a national George Polk Award, one of the most prestigious awards in journalism. She earned a John Jay College/Harry Frank Guggenheim Excellence in Criminal Justice Reporting Award for her series, "Both Sides of the Law."