No Due Process for the Dead, Part 2: Guilty Until

Part 2: Guilty Until

See Part 1: Allegations

See also: The price of prices at 17, about Ed McGowan

Just hours before Ed McGowan died, Mr. Polk had a talk with him. Mr. Polk was Ed's grandfather.

"I hadn't seen him in awhile," he tells me, "and I wanted to find out how he was doing. I had heard that he wasn't doing the right thing."

Still, Ed, 17, was on track to graduate from high school in a month, and he assured his grandfather that all was okay. What else could the grandfather do?

Edward McGowan's graduation portrait

That evening Mr Polk got the call. He was in East Oakland, dropping his wife off at 73rd. It was 7:30 and Ed's father was on the phone. Over on 64th Street, Ed was lying dead from a bullet wound. Quickly, Mr. Polk drove the few blocks to see his grandson a second time that day, but he couldn't get close. Ed was now evidence, Ed was off limits. They didn't move the body until midnight. He would see his grandson again two days later at the funeral home, then not again for another two weeks.

Because the police said Ed had a gun when he was killed, because allegedly he shot, not mortally, his own killer, because in the words of the rules of the California Victims Compensation Program, a victim is ineligible if he has "participated in or been involved in the crime" (sometimes it reads "contributed to the circumstances of his death"), Ed's family was denied the emergency funds available to most homicide survivors to pay for a timely funeral.

"It was a very stressful time," says Mr. Polk.

In California, there is financial help for victims of violent crime, from the California Victims Compensation Program, or Cal-VCP. In Alameda county, victims apply for that compensation at the Victim/Witness Assistance Division of the DA's office. There you fill out the forms and there your eligibility is determined.

Among the primary eligibility rules: you must be cooperating with the investigation of the crime; and you must not have contributed in any way to the circumstances that led to it. These conditions are determined by the content of the police report.

Of the 50,086 applications processed in fiscal year 2013-14, 7962 were rejected, that's just under 16%.

Tasia Wiggins is the director of the Alameda victims assistance office. She tells me that an initial rejection is not always the end of the story. Sometimes a second, fuller police report might make a difference.

"What we do is order the full police report to see if circumstances change, if that contribution (to the crime) is overcome. So we try to tell people, 'Let's do what we can, let's get that application in, even if it might be found to be ineligible.' We can still make sure we get the full police report so that a decision can be made later once we get all of the information."

In these cases, compensation, in the form of reimbursement, might come later. But for destitute families in the grip of despair at the loss of a loved one, the need for funds for a funeral is urgent.

In general, the victims compensation program in Oakland is known to be genuinely responsive to families in dire need of funds for a funeral. Rarely have I ever heard someone, even someone deemed ineligible, say they were not treated with sympathy and respect there. And when a victim is eligible, this government office is able to provide financial help with great celerity.

On the other hand, the rule that disqualified Ed's family from help punishes innocent survivors, victims, whose loved one, according to the police report, may have been engaged in something unlawful when he was killed.

If Ed had lived and been accused of possessing or firing a gun, he could have contested the charge, gotten a lawyer, gotten his day in court. But, as I have said and written before, there is no due process for the dead. In fact, even on appeal, according to the legislation that governs the program, it is up to the victim's family to disprove the evidence. Here's the wording:

At the hearing, the person seeking compensation shall have the burden of establishing, by a preponderance of the evidence, the elements of eligibility...

It reads as if the notion of "innocent until proven guilty" is being turned on its head, as if the common perception, that any young African American man killed on the streets of Deep East Oakland must have been doing something wrong, has been encoded in the statutes. If fact, according to Jon Myers, a spokesperson for Cal-VCP, it is the statutory nature of that rule that makes it difficult to change.

"Our mission is to help victims of crime, there isn't any prejudice, but we have to follow the law, and the law has certain limitations," Myers told me recently. These limitations in eligibility are also a nod toward the program's limited funds. Compensation money comes from criminal fines, but criminals are notoriously delinquent in paying up. At times the fund's balance has dropped so low that the amount of money available to victims had to be lowered. There used to be $7,500 available for funeral expenses. That figure is now $5,000.

Still, eligibility in some cases has been expanded, first to allow non-violent felons and victims on probation to be eligible. More recently, eligibility has expanded to cases of sexual assault where the victim was a prostitute. Technically in such cases, the victim could be seen to have contributed to the circumstances that led to the assault, and to have been committing a crime when it happened. The program didn't feel comfortable with this designation. They had some wiggle room on such eligibility decisions.

"We had already recognized this problem internally," says Myers, "so it wasn't automatically 'you are out of luck.'" Recently Cal-VCP changed the regulations on sexual assault so that prostitutes are no longer ineligible if they get assaulted on the job.

But Myers says the ineligibility of families like Ed's would be tougher to change, that statutes can only be changed by an act of the legislature.

And so, innocent survivors continue to suffer for something the police say their loved one did. And maybe it is true, maybe their son or grandson has done something stupid, something to put himself in a place of great danger. But his mistake would seem already to have been paid for in the harshest and most painful way.

It is Tasia Wiggins who usually delivers the bad news that an Oakland family like Ed's is ineligible.

"Those are the hard calls," she says. "But if there is an eligibility problem, we're not gonna make them wait, because the bottom line is, they need to know what they can count on."

What most of the families can count on is being forced to go out into the community to ask for help at the worst time in their lives.

"It's tough to see," says Myers. "But I see it all the time, a car wash to fund a funeral."

Ed's family members gave what they could. The family did a GoFundMe campaign that brought in a little money. Catholic Charities donated a small sum, but it still did not add up to the amount needed to bury Ed. It would be two weeks before Ed's funeral. It was already a time of uncertainty.

"The wait didn't make it better," says Mr. Polk.

Despite the two-week wait, Ed's funeral at the Chapel of the Chimes in Oakland was a very full and loving tribute. He had a lot of friends and a big, loving family. Two cousins of his spoke about how they and Ed had all been born within a year of each other, and had been excited to turn 18 together. An uncle had flown in from Georgia. He talked of his regret at not having known Ed better. He promised to work harder to get to know his family members in California. A young man in a wheelchair said he'd been shot ten years ago. He begged the young people to put the guns down. One of the preachers told the story of the Prodigal Son, but focused on a different lesson than one usually takes away from that story. I took his lesson to heart. A singer sang a gospel song called "I Wish You Were Here." Another, older preacher said that God is a good God and never fails us. He said that violence among young men represents a "grave situation." He said there are many paths a young man could choose in Oakland that look bright, "but there is the devil, Satan." Then he read from the Book of Job about the hope of a tree in its tender branches. Later he read from the Book of Proverbs about trusting in the Lord: lean not on your understanding.