The most important thing about the Aug. 28 “Groping victim feels let down by cops, prosecutors, courts” article is that it allowed the victim to have a voice and the ability to speak out, as she was left feeling that “the system” fell short of providing some sense of closure to her.

That sentiment is something we hear far too often in the criminal justice arena. We all need to be working diligently to change that perception so future victims of crime are not left feeling this way. After all, our criminal justice system exists to protect the innocent and to safeguard our community from those who would choose to harm others.

Nothing that happened to the victim by the perpetrator in this case was acceptable. In fact it is despicable and infuriating that someone in our community would do that to another person who was simply doing their job as a manager of a local establishment.

The lion’s share of people I have had the privilege of working with in law enforcement, in various prosecutor’s offices and in courts are some of the most dedicated public servants you will find anywhere in this country. They wake up every morning with the hopes of doing something good for the citizens we serve. They carry with them personal strife when they feel they were not able to help a victim as much as they may have wanted to.

But sometimes responding officers, prosecutors and ultimately the judge are burdened by the limitations of the laws that we have on our books in Wyoming and in other jurisdictions with similar challenges. We should work harder at the legislative level to improve upon some of our specific statutes to make the language in them more user friendly for those who enforce and prosecute them.

After reading this article I became concerned that Officer Jacob Normand was painted in a negative light, as well as others in the city and county prosecutor’s offices.

I want to attempt to clear the record on several specific issues, as I believe that everyone involved in this case operated with the best of intentions but were also obligated to follow the law.

Why did the police issue a citation instead of arresting the suspect?

In the United States a police officer cannot arrest a person for a misdemeanor not committed in their presence unless exigent circumstances exist or unless domestic violence laws are broken. The person must be an immediate danger to themselves, others, or be a flight risk.

This suspect, as well as two of his friends, had already left the scene in a taxi toward home well before police arrived, thus eliminating the suspect as being a likely immediate danger. The suspect was also employed in Jackson and provided a local home address in East Jackson, eliminating the likelihood he would not show up to court. In essence, it would have been illegal for the officer to arrest under these circumstances.

Why was the suspect charged with unlawful contact instead of sexual battery?

Both crimes are misdemeanor offenses in Wyoming, though sexual battery does carry a longer potential jail time if convicted. However, “sexual battery” requires that the officer arrive at probable cause that the suspect committed the offense for “sexual arousal, sexual gratification, or abuse.” It is extremely difficult to prove what someone was thinking or intending when they committed the offense and that will undoubtedly undergo strict scrutiny in court.

Law enforcement has not had great success in being able to prove this crime later in the courtroom, which has often led to cases being dismissed by prosecutors. This is one of those laws that needs legislative changes to help victims.

On the other hand, “unlawful contact” requires only that there is probable cause that the suspect touched someone in a rude and insolent manner, without enough force to cause physical injury. In such a case it is much easier for the officer to achieve probable cause. It has been far more successful in prosecutions for this crime and gets the suspect into the courtroom in front of a judge to have some accountability.

However, the prosecutor always has the option of amending a charge to something more serious if they feel, based on the totality of the circumstances, that evidence exists to do that, and they can prove the elements of the case beyond a reasonable doubt. This is a judgment call by the prosecutor, whose job is to successfully prosecute the case in court.

Why did the officer’s bodycam die in the middle of the incident?

A bodycam is no different than a cellphone. We charge them, but over a 12-hour shift the battery will diminish. This incident occurred in extremely cold mid-December, which makes the batteries die even quicker. This incident was fairly long in duration and the officer had been on other calls that used up some battery life. The result was the bodycam died mid-incident. This is unfortunate, but not at all unusual.

Why did the municipal prosecutor allow the suspect to plead guilty to breach of peace?

The case was originally charged into the Municipal Court by Officer Normand as unlawful contact. However, Becket Hinckley, a prosecutor for the Teton County Prosecutor’s Office at the time, told the victim he could prosecute the case as sexual battery in the Circuit Court and asked the municipal prosecutor to dismiss the case so that he could refile it in Circuit Court.

The Municipal Court prosecutor granted this request and dismissed the unlawful contact charge in Municipal Court. Yet Mr. Hinckley never filed the case in Circuit Court. Hinckley resigned from the county attorney’s office at the end of January, and the case was reviewed by the new county attorney and her chief prosecutor. They both did not believe probable cause existed to successfully prosecute the case for sexual battery in Circuit Court for the same reasons that Officer Normand had not filed that charge there in the first place.

The county attorney then asked the municipal prosecutor to take the case back. But because the municipal prosecutor dismissed the original charge of unlawful contact, she was not allowed legally to charge the same suspect with the same crime a second time or she would have potentially been afoul of double jeopardy laws. Her only alternative was to file the case as a breach of peace charge, the next closest law that was prosecutable in Municipal Court.

I believe communication is key in any criminal case. We who work in the criminal justice system all have an obligation to protect victims. We must effectively communicate to the victim “why” we are making the choices we are making so that they fully understand the limitations of law and our options. Though I believe everyone involved in this case had the best of intentions, we clearly did not communicate as effectively as we should have. We own that mistake. We also should never make a promise to a victim that we cannot honor, as that too will leave them questioning the motives of everyone involved.

I will close with saying that I am sorry to the victim for any part the police department played in not communicating effectively. We will do our part to learn from the experience and improve where we can.

I also want our police officer to know that I believe he did a good job in this case in trying to hold the perpetrator accountable for a terrible crime. I will always hold my staff accountable for anything we do poorly, but I will also stand up and support them publicly when they do the right thing.

Todd Smith is chief of Jackson Police Department. Guest Shots are solely the opinion of their authors.

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(1) comment

Terry Hanks

It comes as no surprise that Chief Smith is more interested in providing a defense of himself, his staff and colleagues than serving the community.

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