OPINION: State’s justification for withholding police body camera video is vague and overbroad

The state Office of Special Prosecutions reviews all officer-involved shootings to determine if the shooting was legal or should be criminally prosecuted. That process can take many months. OSP has an unwritten policy not to release police body camera video of officer shootings until it has made its final determination.

Under recent public pressure and media attention, OSP attempted to defend its position. Jenna Gruenstein, OSP’s chief, said she understands the public demand to have body camera footage released quickly, but contended that doing so could jeopardize the prosecution.

Going further, Deputy Attorney General John Skidmore stated he could not imagine any exception for publicly releasing such video before OSP’s final determination. Skidmore acknowledged that was taking too long. The state recently added attorneys to help with the backlog. But he also pointed to delays he couldn’t control — like waiting for ballistic and autopsy reports. Skidmore contended due process rights of potential defendants and privacy rights justified not releasing the video.

The state should be required to explain how releasing body camera video in any of the multiple officer shootings currently under review would jeopardize a criminal prosecution or violate due process or privacy rights. Millions of taxpayer dollars have been spent and will continue to be spent on police body cameras in Alaska. But there is more at stake than money.

Anchorage Police Department Chief Sean Case has recognized the public interest in timely releasing officer shooting video. As he explained:

“Anytime we have an officer-involved shooting, that has an impact on the community … It creates anxiety. It creates fear. So, we have to be mindful that if these officer-involved shootings happen. You know, (if) we released a video seven months later, like, that’s seven months of uncertainty.”

Chief Case accepts that a delay to get eyewitness statements, uninfluenced by the video, may be necessary. But APD and the City Assembly agree there should be a written timeline for releasing video. They are currently discussing whether it should be a 30- or 45-day period. Both agree that any delay beyond the written timeline would require a specific public accounting. And, Chief Case stated simply saying “it’s under investigation” isn’t specific enough.

OSP’s blanket response for not releasing body camera video is vague, overbroad and unacceptable. I say that as a former prosecutor who worked in OSP. OSP doesn’t tell us what due process rights of a potential defendant — they are numerous — might be violated, so I’ll try.

Due process requires, amongst other things, the right to a fair and impartial jury. Pretrial publicity can threaten that. Officer shootings command public and media attention. The release of officer shooting video does the same.

But prosecutors have dealt with pretrial publicity for centuries. The system provides tools. They include an agreed-upon delay of trial for publicity to fade, a change of venue for the trial, special juror questionnaires, and individual juror questioning about their exposure to publicity.

What if a citizen or news source released video shortly after a police shooting? If OSP subsequently decided the officer had acted criminally, would it say it couldn’t prosecute? No. It would use the tools it has used long before body camera video.

The state alluded to privacy rights. Whose privacy? The person shot or third-party witnesses? Overlooking the question of whether they have a right to privacy if the shooting occurred in a public place, such privacy pretrial can be protected by blurring their faces or other identifying information.

A potential defendant’s privacy? If it’s an officer, they have no right to privacy for actions taken in their official capacity—whether they are charged or exonerated. If it’s the person shot, they have most likely already been publicly identified. If not, their privacy can be protected the same way as an eyewitness’s until it’s determined whether they will be criminally prosecuted.

But there’s been no indication anyone is asserting any privacy right in the cases in which OSP is withholding police video.

It’s not just Anchorage that’s implementing a timeline for releasing body camera video of officer shootings. Other police departments and states have passed such policies or legislation. Some are releasing videos within hours, days or a few weeks — well before a final determination of whether the shootings were legal or criminal. Would OSP have us believe they are all jeopardizing prosecutions or violating rights in doing so?

Pressed about OSP’s practice compared to Anchorage and other states, Skidmore said he didn’t know the laws of the other states, he only knew Alaska’s laws. Glaringly, he didn’t say what Alaska laws require OSP’s stance, nor why such laws don’t require the same of Anchorage. (In fairness, Mr. Skidmore takes marching orders from the attorney general.)

It’s time the state updated its unwritten policy and addressed the compelling community and police interest in timely releasing police body camera video of officer shootings. Should the state decide it necessary to withhold such video beyond the gathering of witness statements, it should be forthcoming and specific in its reason for doing so. To do otherwise risks a loss of public trust.

Val Van Brocklin is a former state and federal prosecutor in Alaska who now trains and writes on criminal justice topics nationwide. She lives in Anchorage.

The views expressed here are the writer’s and are not necessarily endorsed by the Anchorage Daily News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)adn.com. Send submissions shorter than 200 words to letters@adn.com or click here to submit via any web browser. Read our full guidelines for letters and commentaries here.