No Due Process for the Dead, Parts 1, 2 & 3

Part 1: Allegations

Often, when a homicide victim in Oakland is very young or otherwise outside the common demographic categories of most victims -- that is, when the deceased is not an African American man between the ages of 18 and 34 -- I will see on Twitter or Facebook or elsewhere that someone has begun a GoFundMe campaign, or some other fundraising effort, to "help the family pay for the funeral.' 

Edward McGowan's obituary

It is a very kind thing to do, but in most of those cases, the families don't need help with funeral expenses. The Victims of Crimes office (VOC) of the Office of the Alameda District Attorney can quickly arrange to pay for the expenses that come in the immediate aftermath of a homicide. There is as much as $5,000 available to survivors to pay for funerals.  

But, if the victim was killed while allegedly committing a crime himself, then there is no financial help available. And there is no due process for the dead, certainly no swift one just when the family needs it. If the police say the victim was committing a crime, then the family is out of luck and on their own.

Because he was killed in a gunfight, in which allegedly he wounded his own killer, you wouldn't have heard much about the struggles of the family of 17-year-old Edward McGowan. Outside his own family and large group of friends, he wouldn't have inspired much lingering general sympathy in Oakland, where he grew up, and attended Frick Middle School and Fremont High. Certainly you would have seen no fundraising efforts on his family's behalf.

But because Edward was said to be in possession of a gun, and to have fired that gun in the course of a drug sale gone bad, they are precisely the kind of family that could use some help. It took two weeks for them to scrape together what was needed to bury their son. It must have been a long two weeks. At Edward's well-attended funeral on Friday at the Chapel of the Chimes, you could see and hear the suffering of his family, the same kind of suffering you would encounter at the funeral of any homicide victim, no matter the circumstances of their deaths or the facts of their lives. I'll have a longer piece about Edward and about this issue of VOC aid being denied certain families soon, about how we might think we know something about the lives people live, or lived, but that often our conclusions about them and their families, including our subconscious ones, are based on ignorance.

However, for now, if you wish to help Edward's family and others like them, I suggest you give to either Youth Alive or the Khadafy Washington Foundation for Non-Violence, both of Oakland. (I am a board member of the latter.) The founder of the Khadafy Washington Foundation, Marilyn Harris, has been helping all families of just about every victim in Oakland for 15 years now. Staff of Youth Alive also work to assure the families get the help they need. Either of these nonprofits could use your help.

Donate to Youth Alive.
Donate to The Khadafy Washington Foundation for Non-Violence

Part 2: The Price of Prices at 17

 

Outside the chapel in Oakland

At first when the preacher started to relate the Prodigal Son story I sort-of rolled my eyes a little. Not again. I thought. And anyway, there is no way Edward McGowan could be anybody's prodigal son. Edward will not return to ask for any kind of forgiveness, and no one will be slaughtering any fatted calves to celebrate. 

Edward was killed in Oakland in mid-May, during an apparent drug deal that went bad. He was 17, a popular student and athlete at Fremont High School, and a handsome kid, to judge by his graduation picture, on display next to his coffin in the chilly Chapel of the Chimes in Oakland on a hot Friday morning in June. After two weeks in refrigeration, while is family tried to scrape together the money to pay for his funeral, Edward did not look like himself. The wait, and then the sight of their son, grandson, nephew, cousin and friend could only have added to everyone's pain and grief. 

Since allegedly Edward was killed while involved in a drug deal, since allegedly he had a gun, allegedly fired it at the person who killed him, his family was ineligible for victim compensation money from Alameda County. That is where many families get the funds to pay for funerals. Absent that, it can take weeks to find a way. Especially in cases where the victim is not young or old or white or immediately sympathetic in some other way. For those kinds of victims, often there are fundraisers and added publicity that leads to contributions to help with such expenses. But rarely would that happen for the family of an African American male victim over the age of 16. In other words, demographically, Edward fell into the category of most of our victims, and therefore got little attention. His age, his gender, his race, and his own alleged contribution to his death were barriers to our sympathy and aid.

It is that lack of immediate sympathy that brought me around to the preacher's decision to tell us the story of the Prodigal Son, who took his inheritance from his rich father early, squandered it on fast living, then returned destitute to ask for forgiveness, to ask to be allowed back into his father's good graces. He was accepted back with great joy. The point the preacher was making was not that the God's mercy is infinite, and not that God celebrates once lost sheep more than a sheep who never strayed. His point this time was that the son made a bad decision, an immature decision. Edward did, too. Edward was 17. Most 17-year-olds don't do what he did, it's true, but most don't grow up like he did, and all of them make immature decisions.

I was lucky at 17. I made many immature decisions at 17, although admittedly none involved a weapon. I got away with them. Edward didn't. He paid the price of prices. His family continues to. The question is, should their suffering be compounded by their ineligibility for help? Edward is gone. It makes no difference to him. His parents committed no crime. But they are the ones left to endure the pain and emptiness of his loss, and to struggle to achieve even the bare comfort of giving him a proper funeral.

Part 3: Guilty Until

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.

                                                                                                      - J. O'Brien