“What the prosecutors were trying to get at there, and what the issue there is, what is going through the minds of those correctional officers at the time they deployed the pepper spray? It is one thing to deploy pepper spray when no one is making any noise at all and standing there doing nothing, and something else when there is a chaotic scene.“
Rhode Island Attorney General Peter Neronha was featured in a a conversation with NBC 10 Investigative Reporter Katie Davis at the 49th Annual Meeting of Common Cause Rhode Island Monday night, held at the Providence Renaissance Hotel. I have a larger piece forthcoming covering all of Neronha’s comments in answer to questions that evening, but here I’d like to highlight with Neronha said about the grand jury’s failure to indict correctional officers who assaulted peaceful protesters outside the Wyatt Detention Facility on August 14.
“The Wyatt situation is one that I give a lot of thought to,” said Neronha. “There’s lots of pieces of that conversation. So let’s just play out the most difficult ones.
“Why a grand jury in the first place? Number one, if we’re going to charge in a case where there is a lot of evidence, you want to make sure you have all the evidence before you charge, so certainly you use the grand jury to obtain all the evidence that you need. So lets say I’d taken the video that Steve Ahlquist here shot that night and took a couple of police reports and charged it. As part of my discovery obligations… we have a duty to turn over any relevant evidence, exculpatory and inculpatory – I would then have to go out there and find all the video out there and turn it over, and I’d have to take all the witness statements and turn them over. I’d have to do that really fast, because every day I delay in doing that, I’m behind the discovery curve.
“So why use the grand jury?” continued Neronha. “To get all the information you need. Let’s say that someone doesn’t give you the information you want. Let’s say, for example, that the Wyatt won’t give you their video tapes. I can’t get that without a grand jury subpoena, so there’s lots of good reasons to us the grand jury. We use the grand jury in lots of cases. We use the grand jury all the time. Virtually every death case that involves driving – We don’t have to use the grand jury, but we use it. Every single case that involves excessive force by police, we don’t have to use it, but we do.
“Why? Because you want to make sure you get the evidence, and sometimes you want the grand jurors to take a look at the evidence and put it in context.”
Katie Davis asked if this might be an example where an investigative grand jury report might be useful. Under the current state of the law, grand jury materials are not disclosable. Last year Neronha’s office introduced legislation that would allow he release of a grand jury report. The legislation passed in the Senate but failed in the House.
“Yeah, I think it might,” said Neronha. “Obviously I can’t talk about this as to why [the grand jury decided as the did or] how we presented the case to the grand jury, other than in generalities.
“The grand jury is 23 people drawn from the [DMV list], we don’t pick the grand jury. So 23 Rhode Islanders and they vote. Of 23 you need 12 to return an indictment. I met that grand jury because they reported that case out on the last day and I can tell you it was a diverse group. They had blue collar and white collar folks, It had people of color on it, old, young – frankly a typical Providence County grand jury… and I’ll never criticize their work…
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“I will say this,” continued Neronha, “there’s been a narrative that the prosecutors had an agenda in that grand jury. I can tell you that that is not the case. I put our best people on that case. I wrote the jury instruction on assault myself because I wanted to make sure that we had the law right.
Neronha had heard that “that some of the protesters were concerned about the questions they were being asked, questions about what they were doing when pepper spray was deployed. And I don’t know what the grand jurors were thinking as those questions were asked but I’m pretty sure I know why those questions were being asked.
“We ask jurors to evaluate two things. We asked them to consider the actions of the truck driver… and also whether or not the correctional officers had deployed pepper spray in an appropriate way. So what drives that pepper spray determination is this: Was the conduct of deploying that pepper spray objectively reasonable, given what was gong on around them? That was what the Supreme Court requires as a finding for the use of force to be excessive. So to understand whether or not deployment of pepper spray was supported or not, the prosecutors, in my judgement, had to ask the people who were there what was going on when the pepper spray was deployed.
“That means asking questions,” continued Neronha. “Were voices being raised? Were people responding when correctional officers asked people to move away from the truck? And without getting into what the answers were, I can understand how, if you’re a witness in that context, you might think that those questions were being asked because someone thinks that the protesters wee doing something wrong.
“What the prosecutors were trying to get at there, and what the issue there is, what is going through the minds of those correctional officers at the time they deployed the pepper spray? It is one thing to deploy pepper spray when no one is making any noise at all and standing there doing nothing, and something else when there is a chaotic scene. So there is a lot in what I just said, I hope that answers some of the questions.
“But I will tell you this, and I want to come back to it: The two individuals who put that case to the grand jury, there aren’t two individuals that I have more confidence in… My prosecutors did not go into the grand jury with an agenda, they went in trying to get it right. I understand that sometimes people will disagree with the result of a trial jury or a grand jury, but all we can do as prosecutors is present the evidence, give the grand jury the law as we understand it to be, and then we accept the result. Because that’s our democracy.”
Katie Davis asked about the role of social media in cases like the Wyatt, but Neronha went a different direction in his response.
“We’re tethered to the law. I’m aware of what goes on around me. I understood once the grand jury reached the decision that they did that there would be some anger about that decision. That’s why I met with the protesters before I spoke to the media. I felt like they deserved to hear it from me, notwithstanding that I knew that was going to be a difficult situation.
“But we have a job to do. It doesn’t matter what the case is or what kind of case it is. We have a job to do. And I like to think that the office is doing a good job and I’m really committed to getting this as right as I can.”
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