Portland's district attorney hired a new prosecutor last month, a man with a history that the Willamette Weekly calls "unusual." Cody Berne is a former police officer who, in 2010, shot and killed Keaton Otis, a mentally ill black man.
Multnomah County District Attorney Rod Underhill has strenuously defended Berne's hiring. From Willamette Weekly:
"Cody Berne was recommended to me for hiring by this office following a screening process conducted by members of my management team," Underhill said in a statement. "A review of Mr. Berne's professional and educational background demonstrates that he is highly qualified to serve as a deputy district attorney for Multnomah County."
Berne’s hiring is even more proof that Underhill has only pretended to be a progressive prosecutor interested in reform. In actuality, he’s fallen into the same old patterns of over-criminalization, excessive prosecution, and cronyism. He has said he wants to fix wrongful convictions, but he lobbied against the state's post-conviction DNA testing bill. He's bragged about his progressive juvenile offender policies, but his county has the highest rate of juveniles charged as adults in the state—most of whom are black and Latino. Earlier this year, he charged four 15- and 16-year-old boys with six counts each of felony armed robbery, after another student said they tried to take his money in the hallway between classes. (The boys walked away empty-handed and said they were joking around.) Each boy was charged as an adult, and each armed robbery conviction would have meant a mandatory minimum sentence of five years in prison.
Underhill has often been unnecessarily and cruelly punitive. In 2004, Matthew Lisicki shot his drunken friend and was charged with murder. At trial Lisicki said he acted in self-defense, and the jury agreed. He was found not guilty. But the murder arrest stayed on his record, making it exceedingly difficult to get a job or rent an apartment. In accordance with Oregon law, Lisicki applied to have the charge expunged from his record in 2015, more than ten years after his arrest. He had not been arrested or charged with any other crimes in that time. But the prosecutor’s office argued that he didn’t deserve expungement, because he had received a single traffic ticket in 2013. (Prosecutors lost and his record was expunged.)
Underhill has also charged people for nuisance crimes, such as illegal camping—essentially homelessness—and littering. In 2014, he charged a woman for "offensive littering" because she spit on the ground in front of a cop.
Underhill initially ran unopposed in 2012, and was essentially re-elected in this year’s May primary where he once again faced no opposition. His hiring of Berne as an assistant district attorney has drawn the ire of local activists, and once again raised questions about race, police, and mental illness in Portland.
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Otis was shot 32 times in May of 2010. Of the seven officers at the scene of Otis's death, three of them fired their weapons. Berne was one of those three. The Oregonian reported that, "[b]y the time the violence had ended, Otis had bullets in his boxer shorts and Taser probes in the hood of the sweatshirt"—the same hood that prompted police to run his plates in the first place.
Otis was driving his mother's silver Toyota Corolla on May 12, 2010, when Portland officers stopped him near the Lloyd Center because he failed to signal a turn -- and because they thought the 25-year-old African American man looked and drove "like a gangster." He was slouched low in the driver's seat and wore his hood over his head when police cars first pulled up behind and alongside the Corolla.
By police cars, the article mean a total of four. For a failed turn signal.
Of course, by the time they actually observed a traffic infraction, the officers had already run his plates. According to The Oregonian, Officer Ryan Foote thought Otis "didn't seem to fit the car" and thought he looked "suspicious."
When they attempted to pull him over Otis "eyed them suspiciously in his rear-view mirror, [officers] said, and seemed to veer his car away from them like a man attempting to elude capture." This vague "veering" along with Otis's "gangster" look led to the officers' subsequent behavior.
It’s not entirely clear what happened next. Some reports say that when Officer Ryan Foote walked up to his car window, Otis "appeared 'super angry,' unleashed vulgarities about police and claimed he was being stopped because he was black." That's when Foote called for the six officers in the other three cop cars to box in Otis and approach the Corolla.
Later reports, though, say something different—the officers boxed-in the car first and "ordered Otis to put his hands above his head." According to this version of events, it was only then that Otis "grabbed the steering wheel and screamed obscenities."
Either way, when Otis allegedly refused to put his hands in the air things escalated even more rapidly:
Officer Chris Burley […] reached into the car and grabbed Otis’ left arm in a martial arts hold. Otis pulled back, officers said, with enough force to nearly pull Burley inside the vehicle.
Three other officers fired Tasers. Otis grimaced in pain, officers said, yet managed to open the glove compartment and pull out a Crown Royal bag. Inside was “something bulky”: a gun.
Otis shot Burley twice in the legs, according to police, two quick pops that neighbors confused with fireworks. Burley’s colleagues fired 32 times in response, striking Otis with 23 and leaving the Corolla and the pavement studded with bullet casings.
Berne fired 11 of those shots.
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Everyone knows that it's an uncomfortably common story in America—a person is killed by a police officer or three or five. And when police kill, they disproportionately kill men like Otis—young, black, and male. One of the main injustices of such tragedy is that death steals the only opportunity for that person to provide their version of events. When police kill, often the only narrative that exists is that of the officer.
Many doubt the officer's detailing of what happened that day. Otis's biological father, Fred Bryant, is one of them. Bryant was not close to his son for most of his life, but had begun trying to build a relationship in the recent years before he was killed. He found out about Otis's death on the television, when they flashed his picture on the screen.
Bryant and other activists, including former state representative Jo Ann Hardesty, reviewed much of the available evidence. They've watched a video of the incident. They see Otis's death as yet more evidence of racist policing by Portland law enforcement:
Bryant and other advocates did not believe a man as scrawny as Otis – 155 pounds at his autopsy – could have held his own against a cop, or grabbed a gun and fired while being Tasered.
“It’s the black-man-as-superhero narrative,” Hardesty said.
Bryant and his supporters watched and re-watched a pixelated iPhone video of the shooting taken by a young woman from an apartment overlooking the scene. Bryant paid to have the video’s sound enhanced. He became convinced the video showed Otis submitting to police, that he told them, “I have my hands up!” and that officers yelled, “Let’s do it,’ before they opened fire.
But while Bryant, Hardesty, and others spoke out consistently about Otis's case—and police brutality more generally—in the years following his death, nothing changed. In this case, like many others, law enforcement's story is the only one available. And, as often happens, the system automatically gave police the benefit of the doubt.
Otis's death was also complicated for other reasons. Otis was 20 years old when he died, and was suffering from severe mental illness. He lived with his mother, Felisia Otis, and the man he considered to be his father, Joseph Otis, at their home. From The Oregonian:
Otis was above the age of consent when his mental health problems turned severe, which meant his mother had no control over his care and minimal access to his doctors even though he was living at home.
“People said to me, ‘You just need to get him to the hospital, that’s where he needs to be,’” she said. “Well, Keaton wasn’t going to go to the hospital. And if I tried to make him go, I was going to become just another person who was out to get him.”
Otis's depression, paranoia, and delusions began to get worse in November of 2009.
[He] stopped leaving his bedroom and turning on his light. He boiled his toothbrush and hid his cigarette butts so no one could take a sample of his DNA. He refused to talk to friends, his aunt or his grandmother. He told [his mother and stepfather] Felesia and Joseph Otis to whisper — loud noise hurt his head, he explained, and he hoped to confuse the people he believed were eavesdropping on their conversations to steal his ideas.
"It was like the body snatchers came and took him out and put somebody else in,” his mother said later. She had done what she could to get him help before that point, including setting him up with a nurse practitioner and, since he didn't have insurance, getting him samples of anti-psychotic medicine. But when things took a turn in late 2009, she heightened her efforts.
Eventually, she talked to medical professionals about having him committed. Oregon law makes such a step very difficult, and doctors told Felesia Otis her son didn't pose an “imminent danger” to himself or others.
“He wasn’t sick enough,” she said. “He was starving himself, but he could still hold a conversation.”
By May 2010, Keaton Otis had dropped 50 pounds. His cheekbones protruded. His mother decided that she had to get him help, regardless of the cost or consequences.
“I was ready to lie and say, ‘Yeah, he threatened me, or yeah, he threatened somebody else.’ Whatever it took,” she said.
She arranged to have a "last-ditch meeting" with a nurse practitioner for the morning of May 13. Otis was killed on the evening of May 12.
A grand jury found "no criminal wrongdoing" on the part of the officers, and the Police Review Board found the shooting was "within policy."
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Otis's mother blames his mental illness for his death. His biological father and others in the community blame a culture of racist law enforcement and police brutality. It seems at least partially attributable to both.
And yet, his death also seems entirely avoidable. The police denied racially profiling him even though, by their own description, that's exactly what they did. And their handling of the traffic violation was remarkably, absurdly, excessive.
Four police cars pulling over a man for failing to signal is beyond unnecessary. And despite his mental illness, is completely unsurprising that seven cops in those four cars exacerbated an otherwise standard interaction between the driver and the police.
Of course, Otis's mental illness also affected the interaction between him and police. But that, too, could have been avoided if Otis's mother had had options. It is a permanently cruel irony that she couldn't get him treatment from the state unless he was a threat to others—yet, when he was allegedly a threat to others, the state killed him.
Portland police's problem with race and mental illness is well documented:
Between 2006 and 2008, African Americans comprised 14 percent of all Portland Police traffic stops, despite only making up 6 percent of the city’s population. In the North Precinct where Keaton Otis lived, blacks accounted for 21 percent of all stops. In the Northeast Precinct, where Keaton Otis died, they made up 29 percent.
In 2012, the DOJ began investigating the Portland Police Department, nothing that their biggest concern was "the often tense relationship between PPB and the African-American community."
The DOJ found "'a pattern and practice' of excessive force by officers of the bureau against persons with mental illness."
Many who act erratically or violently in confrontations with police suffer from mental illness. But that doesn’t at all mean most mentally ill people are violent, either. Cases like these inflame already-existing stigmas, but violence isn’t always inevitable in situations like Otis’s.
The DOJ's report told many what they already knew. It is unsurprising, then, that many activists are especially unhappy about Berne's hiring. From Willamette Weekly:
At a minimum … the newly minted prosecutor's background highlights a chronic flashpoint for law enforcement in Portland and across the country: how officers, prosecutors and corrections officials interact with black males and the mentally ill.
"People who are prosecutors are important representatives of the state and the county, and who they are makes a real difference," says Margie Paris, who teaches criminal law at the University of Oregon School of Law. […]
Paris says she's never heard of any other instances in which an ex-police officer involved in a fatal shooting has become a prosecutor.
"The whole incident feeds into our awareness that young black men are overpoliced," she says. "They are stopped more frequently, and those stops escalate more frequently."
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It's been six years.
In 2013, Fred Bryant died from a stroke. Felisia Bryant has continued to fight for mental illness resources, especially for young black people in Oregon. Other activists are still fighting. From The Oregonian:
"Hardesty says she doesn't believe Berne has been held properly accountable for Otis' death.
"We hold a vigil every month because we don't want the community to forget," Hardesty says.
The officers, of course, have gone on living. Berne, 33, left the police force in 2011, which he denied had anything to do with the shooting. He began at the University of California Davis School of Law and graduated in 2014. For the past few years he's been practicing business litigation at a firm in Portland. He started at the end of August as a prosecutor in the Misdemeanor unit. From Willamette Weekly:
He says his experience as a police officer gives him a valuable background in how police approach problems and arrests and he doesn't think his role in the Otis shooting will affect the way he thinks about cases brought to court.
But some disagree. Laura Appleman, a law professor at Willamette University, stated, "Everything [Berne] did as a police officer helped shape his work as a prosecutor."
For the sake of Portland let us hope she's wrong.