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Derek Colling

As regular readers know, I’ve been following the deadly exploits of Derek Colling, as a result of investigating the Erik Scott case, for years.   Colling was one of many Las Vegas Metro serial shooters with two (or more) kills to his credit, fired by Metro after brutally, and without cause, beating an innocent citizen.  The SMM Derek Colling archive is here.  

With the recent announcement of an Albany County grand jury’s decision not to indict Colling for the death of Robbie Ramirez, one might think this the last article in that series.  It will not be, for several reasons, but let us visit The Laramie Boomerang for the most recent news:

Robbie Ramirez
credit wyofile.com

Derek Colling, a deputy in the Albany County Sheriff’s Office, will not be indicted for the November fatal shooting of Laramie man Robbie Ramirez.

A grand jury convened by Albany County Attorney Peggy Trent opted not to indict Colling for involuntary manslaughter this week.

Trent said this was the first time a grand jury has ever been convened in Wyoming for an officer-involved shooting.

That is, in very real ways, extraordinary.  In the first article of this series, I wrote:

Wyoming, like many places, still suffers from ‘good-old-boyism.’ Most agencies would not think of hiring someone like Colling.  Apparently local connections overrode more professional concerns.

Albany County Prosecutor Peggy Trent
credit: laramielive

I do not know Peggy Trent or the political dynamics of Laramie, Wyoming.  It would not, however, be unreasonable to think Trent convened a grand jury for politically self-preservative reasons.  All prosecutors know they have to work with city and county police officers, and must have some kind of professional working relationship with them.  Some of their prosecutorial decisions are inevitably made more in the interests of politics than justice.  In this case, Sheriff David O’Malley has staked out a public position that Colling is the epitome of law enforcement virtue and performance.  It would be naïve to imagine that this position has not put significant political pressure on Prosecutor Trent to avoid charging Colling.

By the same token, public sentiment seems to be significantly opposite O’Malley’s position.  Given Colling’s past and O’Malley’s questionable decision to hire him, that is unremarkable, even encouraging.

Prosecutors have, by law, authority over charging decisions within their jurisdictions.  They—elected officials—decide who will and will not be charged with crimes.  As the article notes, never before has a Wyoming prosecutor empaneled a grand jury in such a case.  That does not mean there are no legitimate reasons for grand juries, just that their use in such a case is unprecedented.

Why would Ms. Trent empanel a grand jury for the first time in Wyoming history?  Trent is presumably capable of reviewing the evidence and rendering a professional charging decision.  This is what virtually all prosecutors in Wyoming do.  However, any decision she might make will surely have political ramifications, as in reelection ramifications.  By using a grand jury to make that decision, she can throw up her hands and say “I just presented the evidence; they made the decision; don’t look at me!”  Because grand jury proceedings are secret, informed criticism of Trent is, at best, difficult.

The results of the grand jury were very expected given the undisputed facts of the case,’ said Tom Jubin, Derek Colling’s attorney. ‘Derek did what he had to do. He feels great sadness over the fact that he had to take a life to do his job. He has expressed sympathy for Robbie’s family.

Jubin is merely doing his job, though he would not have been allowed in the grand jury room.  In the not too distant future, he will be confronted with the reality that the “facts” are anything but undisputed, a reality of which he is certainly aware. With Trent’s help, he has managed to dodge the criminal bullet.  He may not be able to dodge the civil bullet.

Trent said in a press release that a grand jury was the most appropriate course of action to allow ‘citizens to examine evidence and testimony to determine whether the actions or inactions by law enforcement in using deadly force are within and consistent with the general industry standard for officer involved shootings and whether in this instance actions were within Albany County Sheriff’s Office policy and training guidelines and met with national use of force training standards.

Nonsense.  Were that true, Trent would convene a grand jury whenever deadly force was used by anyone. Prosecutors throughout Wyoming would surely, routinely have done it for similar situations in the past.  Citizen participation in the process occurs when they vote for a prosecutor to represent them.  It is that process Trent fears.  Is Trent admitting she is incompetent to make those determinations?

This process provides a means for accountability of law enforcement agencies and officers to ensure local policies and national standards are adhered to when deadly force is used,’ Trent’s press release states.

That’s a job for elected officials—Trent and O’Malley—not for citizens who have no such professional knowledge and who rely only on Trent to provide everything they know.  Responsible prosecutors know this, and have chosen not to pawn off their responsibilities on others.

Grand juries may have been commonplace in the early history of Wyoming, but they’ve since become exceedingly rare.

Eliza Stewart Boyd famously became the first American woman to sit on a jury in 1870. Her achievement came as part of a grand jury in Laramie.

Albany County Clerk of District Court Janice Sexton said there has not been a grand jury convened at the Laramie courthouse since at least before January 1992. That’s when the office’s longest tenured employee, Stacy Lam, began work there.

‘I don’t think we’ve ever had one,’ Sexton said.

She knows of only three counties — Natrona, Laramie and Campbell — where county employees can remember a grand jury being convened.

Julie Goyen, spokeswoman for the Wyoming Administrative Office of the Courts, told the Laramie Boomerang she wasn’t sure if there are even records at the state level of when a grand jury has been convened.

Under Wyoming statute, members of a grand jury are required to ‘keep secret matters occurring before the grand jury unless disclosure is directed or permitted by the court.

This is why Trent can plausibly—likely, she believes this—claim the decision, and the responsibility, are not hers. Probably, no one will ever be able to prove otherwise.  Many in Laramie aren’t happy about that, as Trib.com reports:

Derek Colling Shooting Robbie Ramirez

A founder of Albany County for Proper Policing, a group formed in response to Ramirez’s death, said the group had not met between the prosecutor’s announcement and an early Thursday evening phone call from a reporter. Karlee Provenza said, however, that a December community forum indicated to her that public trust in police is at an all-time low.

‘We didn’t get to see the evidence. We don’t have the facts,’ Provenza said, in reference to the closed nature of the proceeding. ‘We do believe Colling had another choice.

In the second update of this series, I agreed:

That’s the ultimate decision for the prosecutor: did Colling have to shoot when and where he did?  Did he face the imminent threat of seriously injury or death?  Would any reasonable police officer have done the same? I wouldn’t.  In my police career, I—and my fellow officers—faced many situations like that facing Colling.  We would not have thought of using deadly force. We accepted that we would sometimes have to go hand to hand with people.  Particularly with anyone we knew to be mentally impaired, we would have moved heaven and earth to resolve things peacefully. To do otherwise would have been thought unprofessional, even cowardly.

Provenza continues, and again, I agree:

 Provenza said in December that Colling never should have been hired by the Wyoming agency and took issue with Sheriff Dave O’Malley’s comment to WyoFile, an online news organization, that he did not regret hiring Colling.

It is unacceptable that our sheriff’s department hired an officer who had clearly demonstrated he could not safely or legally police the community of Las Vegas,’ Karlee Provenza said. ‘Then, to have our recently re-elected sheriff state that he still does not regret hiring Colling is a slap in the face to the community that elected him.

More so to Robbie Ramirez and his family.

Final Thoughts:

There remain two battlegrounds in this case: political and civil.  The attorneys for the Ramirez family will surely file a wrongful death action. Albany County will have an unenviable choice: stubbornly claim Colling’s actions were blameless and go to trial, or work out a settlement.  If the settlement is relatively small, they can claim they did it to avoid the expense and trouble of a trial.  If it is not, that claim will be much less plausible.

And too many questions remain unanswered.  How many shots did Colling fire?  Where did they end up?  Did he, as it appears, shoot Ramirez in the back as he lay, face down on the ground at his feet?  If so, how does that add up to a justified shooting? Does anyone believe Colling’s body camera just happened to malfunction at precisely the moment when it most needed to work?   When will Sheriff O’Malley call for the public release of the grand jury transcripts?  If Colling acted properly, he should be anxious for the public to see Colling’s strict adherence to protocol and standards. Shouldn’t he?

Sheriff Dave O’Malley

I suspect they will not want the “undisputed facts” of this case to see daylight, and will do everything they can to prevent release of the grand jury transcripts, and to settle.  In civil court, the standard of proof is not “beyond a reasonable doubt, but “a preponderance of the evidence,” often expressed as 51%.  By that standard, it is far more likely that Colling, and O’Malley and Albany County, would be found culpable.  Lawyers for Albany County–Trent?–and Colling will surely argue that Colling and O’Malley enjoy some form of immunity.  That argument may or may not prevail.

It is the political battleground that will ultimately be most dangerous for Trent and O’Malley.  Local elections can be easily won or lost on a handful of votes, or a single vote, and in a case like this, agitated voters tend to have long memories.  They will not forget this case, Derek Colling, and the unanswered questions.

I would not want to be in their shoes the next time Colling brutalizes or kills a citizen, and judging by past performance, that seems more likely than not.  Sheriff O’Malley and Prosecutor Trent may have occasion to regret their decisions.