Legal experts are pushing back on criticism over the handling of a Boston police officer’s arrest last week.
Officer Nicholas O’Malley was arrested last Thursday after he fatally shot 39-year-old Stephenson King, who was a suspect in a carjacking. In announcing the arrest, Suffolk District Attorney Kevin Hayden said he would bring O’Malley’s case before a grand jury to consider manslaughter charges.
Following O’Malley’s arraignment, his defense attorney and the police union accused Hayden of acting politically during an election year.
“I just want to say that this is unprecedented,” O’Malley’s attorney, Ken Anderson, told reporters outside of Roxbury District Court. “I think at the end of this case, he’s going to walk away as an innocent man. I’ve been involved in probably a hundred or more police shootings. This is the first one anyone’s ever been arrested. This is not preferential treatment. This is election year tactics.”
Hayden, who is up for reelection, denied that politics played any influence in the decision to arrest O’Malley, and stressed in his own comments to reporters that the case is moving forward within the normal legal process.
“People are arrested and charged in district court prior to the matter going to the grand jury all the time,” Hayden said. “This case was not treated any differently than any of those other cases.”
Several legal experts who spoke with GBH News agreed with that comment in terms of process, even if it is unusual for a police officer to face charges in a case like this.
“I think perhaps because police officers are almost never charged and held accountable for shootings, that’s why we haven’t seen them arrested,” said Shira Diner, a lecturer and clinical instructor in the Defender Clinic at Boston University School of Law. “And that’s where we haven’t seen bail requests being made on their behalf. That’s why we haven’t seen them being brought into court, right? So, if it never happens to police officers, the regular process that happens to other people hasn’t happened for those police officers.”
The process that’s being followed now is treating O’Malley like any other criminal defendant, Diner said.
“The way our system works in Massachusetts is almost entirely that people are arrested, they’re brought into the district court, or the municipal court in this case,” Diner said. “And then after that, a grand jury would meet and issue an indictment, and then the case would go to superior court.”
If anything is unusual about O’Malley’s treatment, Diner said, it’s that he was released on personal recognizance and wasn’t held in custody while the case is pending.
“I think that someone in another situation, the judge might’ve imposed a really high cash bail, more than the person could make, or there would’ve been a move to hold them as someone who was a danger to the community,” Diner said. “But none of those things happened and the defendant is now released and he’s out and he is able to assist his lawyer in a really meaningful way in preparing his defense.”
Retired Massachusetts Superior Court Judge Jack Lu, who is now teaching at the University of Massachusetts School of Criminology and Justice Studies, sees the case similarly.
“I will applaud the district attorney for treating this individual like anyone else,” Lu said.
In court, prosecutors said O’Malley shot and killed King on March 11 as he was fleeing police in a car he had allegedly stolen in a carjacking. According to investigators, no weapon was found on King or in the vehicle.
“Any person, with or without legal training, can see that this police officer was in a terrible position,” Lu said. “So I have a world of sympathies for this individual, and I wish them all the luck in the legal process.”
Even so, Lu said, that legal process should be the same for all defendants.
“Why should this police officer get different treatment than somebody who shoots somebody on the street in allegedly self-defense?” Lu asked. “Why should there be different treatment for police officers?”
In addition to anger over the district attorney’s decision to arrest O’Malley, his defense attorney and the police union also criticized how it happened. The officer was arrested at his home, rather than being allowed to turn himself in.
“We’re outraged at the way the arrest took place,” Boston Police Patrolmen’s Association President Larry Calderone told reporters after the arraignment. “You have an individual with an impeccable record, that volunteered to go give testimony … at the homicide division. He could have very easily volunteered to come in here and submit himself to the accusations at hand.”
O’Malley’s attorney, Anderson, asserted that his client is not a flight risk.
“They ask for $25,000 cash bail for someone who’s lived every day of his life in Massachusetts, married … two young kids, not a fight risk. And they grab him off the street, they arrest him, they book him to embarrass him, to put this show on for all of you,” he said to the assembled reporters.
Professor Chris Dearborn of Suffolk University Law School, who directs the Suffolk Defenders Program, said he’s seen plenty of cases in which defendants have been allowed to turn themselves in.
“That courtesy is often given to somebody when they reach out ahead of time,” he said.
Dearborn said it’s not clear, though, if the timing of the decision to bring charges allowed the district attorney to offer that opportunity to the defense lawyer. And he took issue with the suggestion that the Hayden’s tactics were driven by politics.
“I don’t think he was thinking, ‘Gosh, I better arrest this cop instead of allowing him to turn himself in, otherwise I might lose the election.’ I just think that’s silly. I think that’s nonsensical,” he said. “I do agree that there is a credible argument, as with any criminal defendant, that given this circumstance, maybe they could have given him the opportunity to turn himself in. But at the end of the day, [the judge] did the right thing with a guy with no record and released him on personal [recognizance] with conditions.”
Dearborn said the district attorney’s office deserves credit for their decision to charge O’Malley.
“Especially what we’re seeing happen in other jurisdictions with other law enforcement agencies, where investigations are being slid under the carpet or not even happening,” he said, pointing to recent fatal shootings of protestors Alex Pretti and Renee Good in Minnesota by federal agents, which the U.S. Department of Justice has declined to investigate.
“And I don’t think this is like an overreaction to that. I think this is just the district attorney’s office recognizing what this is, having viewed the evidence and believing at the very least there’s probable cause to go forward with a charge,” Dearborn said. “But that’s why we have juries. This is a case that I anticipate going to a jury trial and letting a jury decide whether there should be a conviction or not.”
But first, the case will be heard by a grand jury, and Dearborn says it could be several months before they decide whether to issue an indictment.
