Dueling press events Wednesday highlighted a disagreement over whether a law enforcement officer in an officer-involved shooting should be allowed to view the body or dash cam footage of the incident before being questioned by investigators.
The Washington County State’s Attorney Office on Tuesday and the Vermont Attorney General’s Office on Wednesday announced that separate reviews by each prosecutor’s office conducted into an August officer-involved shooting in Montpelier cleared that officer of wrongdoing.
Both probes ruled that Montpelier Police Cpl. Chad Bean was justified in his use of deadly force in firing his rifle and striking 62-year-old Mark Johnson in the torso, killing him.
The investigations found that Bean feared for his life when Johnson waved what later turned out to be a pellet gun, refused orders to drop it, and then pointed it in the corporal’s direction during the early morning of Aug. 9 on the Spring Street bridge.
However, while the conclusions were the same, the two independent offices took different paths in getting there.
The Montpelier Police Department allowed Bean and Officer Christopher Quesnel, also at the shooting scene, to view dash cam footage from Quesnel’s cruiser that captured the shooting.
The Vermont State Police, the statewide agency that investigates all officer-involved shootings, did not interview either officer. It recently changed its procedure and won’t interview officers in such cases if they have already seen body cam or dash cam footage of the incident.
Meanwhile, Washington County State’s Attorney Rory Thibault conducted a court inquest during which, he said, both Bean and Quesnel voluntarily testified behind closed doors about their actions in the shooting incident.
Thibault this week sought the release of the transcripts of the testimony of both officers; a judge granted that request Wednesday morning.
Thibault held a press conference Wednesday afternoon at Montpelier City Hall, a day after issuing a release stating that he found that Bean was justified in his use of deadly force.
The prosecutor said Wednesday that he wanted to interview the officers and have their testimony released in an effort to provide “transparency” to what transpired in the shooting and the events leading up to it.
“I thought it was important to be able to fill in some of the gaps that existed in the video,” Thibault said, “and to hear what the state of mind and what the emotions of those officers at the time was. Ultimately, I did that in the hopes of getting a more complete view of the situation.”
He added, “I really thought the public would question why those officers were not spoken to and I think would leave something missing from the equation if we did not hear their account.”
Not obtaining the officers’ accounts, Thibault said, “would deprive us of the complete and total understanding of the situation.”
Thibault added that officers frequently interview people involved in crimes.
“We don’t not interview those individuals merely because they talked to somebody else, they watched an incident occur on someone’s camera phone video or they had access to extraneous information,” he said.
“I think it’s imperative,” Thibault said, “and it’s the function of investigators and prosecutors to make, initially, reasonable decisions about the credibility of someone.”
He added, “Of course everybody has the right to maintain their constitutional right to remain silent and say nothing at all.”
Montpelier Police Chief Tony Facos, speaking at the same press conference, defended his department’s decision allowing the officers to view the videos, even though it went against state police protocol.
“That was a departmental decision based on our counsel, and also we believe it’s an important practice so that the officers have an opportunity to be accurate,” Facos said.
The police chief said state police had requested that the department not allow the officers to see the video. “They did tell me that, there was some discussion,” Facos said.
He added that his department was still looking at the department’s “protocol” going forward in such incidents.
“There’s a lot of things to consider,” he said, adding it is a “national conversation.”
The Montpelier police chief said the officers involved in the shooting, who were put on paid leave initially after the shooting, returned to duty about a week and a half later.
Shortly after Thibault and Facos spoke to the press at Montpelier City Hall, Maj. Dan Trudeau of the Vermont State Police took questions from several reporters outside the agency’s headquarters in Waterbury.
Trudeau said the Montpelier officers involved in the shooting had been “offered” a chance to give a statement to state police investigators under the condition that they not view the videos ahead of time.
The major said the change in procedure for state police followed several officer-involved shootings, causing agency leaders to look deeper at their “tactics” and “investigations” in such cases.
“As a result of consulting with several people, and we still are to this day, we did change course and we’re going in a manner where we are not allowing officers that are directly involved in a shooting to preview their video,” Trudeau said.
“The theory behind that is that we’re just trying to get the officer’s true recollections and perspective,” Trudeau added. “We don’t want them to regurgitate what they’re watching on a video.”
He added that he knew there were varying opinions on the practice.
“It’s probably a 50/50 split on investigative agencies doing it one way or another,” he said. “We feel like this is the course that we’re comfortable with.”
Trudeau said he believed it was the most “transparent” way to conduct an investigation. “This is a clean way to interview these officer,” he added.
Vermont Attorney General TJ Donovan backed the state police’s position.
“The best practices is not to show video cam footage to the police prior to the interview,” the attorney general said.
“In no other investigation would we give a person of interest or suspect the ability to review evidence before interviewing them,” he added, “and I don’t think the police should be treated any differently.”
Donovan announced findings that the officer was justified in his use of force in the Montpelier case in a press release issued Wednesday morning.
Asked why his office didn’t take part in a joint press conference with the Washington County State’s Attorney’s Office, as happens in many cases involving officer-involved shootings in Vermont, Donovan replied that his office doesn’t always hold press events in such cases.
Later, he added, that there were “probably a variety of reasons, one of which will probably be a disagreement about the type of investigation that was conducted.”
As a result, Donovan said, his office let the Washington County State’s Office hold its own press conference while his office sent out a press release.
Lia Ernst, a staff attorney with the American Civil Liberties Union of Vermont, said Wednesday that her organization backed the state police’s position.
“Our position has been and continues to be that officers should not be able to view body cam or dash cam footage prior to submitting an initial statement or report about the incident in question,” Ernst said. “The reason for this is that an extensive body of evidence shows that when you view something, it changes your memory.”
The state police procedure is also playing a role in another case from earlier this year in Burlington that included a video of an officer, Corey Campbell, punching a man who died days later.
A judge in that case ordered the release of that video following a lawsuit brought by the Burlington police union on the officer’s behalf seeking to see it.
Dan Gilligan, president of the Burlington Police Officers’ Association, said Wednesday that Campbell had not been interviewed by the state police.
Gilligan said he didn’t understand or agree with the VSP’s policy to not talk to officers who have reviewed their footage. He said body cameras might pick up things that the officer did not see, and vice versa.
“You are going to have questions, if there are inconsistencies, that you are going to want to have answered,” Gilligan said. “If you’re looking for the facts and the truth, that seems to be the best way to do that.”
Chittenden County State’s Attorney Sarah George, whose office is conducting an ongoing review of that case along with the Vermont Attorney General’s Office which is doing its own separate review, said her office will not be interviewing Campbell.
“Our review was to determine whether criminal charges were warranted. We would never interview offenders in an effort to determine whether criminal charges should be brought, regardless of whether they are a civilian or a law enforcement officer,” she wrote in an email.
“It creates an insurmountable conflict when a prosecutor interviews a potential defendant and then attempts to use that statement against them in a prosecution, assuming they would waive their constitutional rights to remain silent.”
Shooting justified
Thibault, during his press conference Wednesday, provided a timeline of events that ended with the shooting on the Spring Street bridge, near the roundabout on Main Street in Montpelier.
The incident leading to the shooting began around 5 a.m. on Aug. 9 when police were called by a tenant at the Pioneer Apartments on Main Street, just a short distance from Spring Street, for a report that Johnson had been trying to enter a unit there and he had a knife.
Johnson lived at the Pioneer Apartments.
Shortly after Bean and Quesnel arrived at the scene, Thibault said, Johnson left the building, eventually making his way to the bridge.
There, the prosecutor said, both officers repeatedly ordered Johnson to put down a weapon he held in his hand. The weapon was later determined to be a pellet gun, though both officers said it looked like a real gun.
Thibault said throughout the fast-moving incident both officers spoke to Johnson.
“Let’s figure this out. I’m happy to talk to you,” Thibault said Quesnel told Johnson at one point. “What’s going on, talk to us.”
Bean told Johnson he wanted to get him help, adding, “It’s never too late, Mark, it’s never too late,” according to Thibault.
Around 5:15 a.m., according to Thibault, Johnson began pacing on the bridge, then appeared to be climbing on the railing, as if he was going to jump.
Thibault said Bean then shouted out, “Mark, get down, Mark, get down, get off the bridge.”
Johnson got down, squared himself toward the direction of the officers, Thibault said, and then began lifting his right arm, “appearing to aim the weapon at Bean and/or Quesnel.”
At that point, the prosecutor said, Bean fired the first of two shots striking Johnson.
Bean, Thibault added, then said, “He just pointed it right at me.”
Quesnel responded, “I saw that,” the prosecutor said.
Johnson, shot once, remained standing holding the gun and pointing at the officer, prompting Bean to fire a second shot that struck Johnson again in his torso, Thibault said.
This time, according to the prosecutor, Johnson fell to the ground.
The officers, Thibault said, began administering CPR on Johnson until rescue medical workers arrived. Johnson was taken to the hospital where he was pronounced dead.
The video released by Montpelier Police Wednesday captured the shooting from dash cam of Quesnel’s cruiser, which was parked in the roundabout, a short distance from the bridge.
Both officers can be heard in the videos, though it’s difficult to make out anything Johnson is saying.
The nearly 80 pages of transcripts released Wednesday of the officers questioning during the inquest proceeding included both officers saying they felt in great fear as Johnson was waving the gun and then pointing it in their direction.
“I felt as though I was in danger for my life,” Quesnel testified. “I’ve never been so scared in my life.”
VTDigger Aidan Quigley contributed to this report.
