With statute of limitations on McDole case almost up, chance of prosecution seems slim
Nationwide protests over police brutality have renewed outrage over the 2015 killing of wheelchair-user Jeremy McDole by Wilmington police.
Time is running out to reconsider charging the officers involved.
It'll be five years this September since Wilmington police officers Daniel Silva, Thomas Lynch, Joseph Dellose and James MacColl shot and killed 28-year-old Jeremy McDole as he sat in his wheelchair on a street in west Wilmington.
That means the statute of limitations—or time period during which most charges could be brought against the officers—is almost up.
So far none of the officers have been charged. The state Department of Justice decided not to pursue prosecution in 2016 after an investigation concluded the use of deadly force against McDole was likely justified under state law.
The state’s investigation found “serious deficiencies” in Wilmington Police Department use of force training, especially around individuals with mental illness and disabilities.
And it did call out one officer in particular for poor police work. Joseph Dellose ran onto the scene, against the direction of an officer already there, and fired the first shot at McDole. He would later tell investigators he fired because he’d seen McDole reach for the handle of a gun in his waistband, and felt his life was in danger.
This summer Jeremy McDole’s sister, Keandra, has intensified her calls for the Department of Justice to reopen her brother’s case. She wants to see the officers charged.
“I don’t feel as though on a federal level or a state level that they did a proper investigation,” she said. “I don’t feel as though they interviewed everyone who needed to be interviewed. I don’t feel as though they took the time out to find witnesses.”
In addition to leading several protests this summer, Keandra McDole met with the current Attorney General Kathy Jennings in late June.
“First, she came into the meeting and apologized and shedded a little crocodile tear like she really cared,” said McDole. “I immediately told her let’s just cut to the chase; we’re here because we demand that you open Jeremy McDole’s case.”
The Department of Justice declined to make Jennings available for an interview. Her spokesperson, Mat Marshall, has said in the absence of new evidence, there is no legal basis to reopen the investigation into McDole's death.
McDole’s family and advocates say they have new evidence.
Terrence Jones, a former Philadelphia police officer and self-described civil rights investigator, says he has talked to two new witnesses who challenge the police version of events. He says they back McDole’s family’s claims that Wilmington police planted a gun on McDole.
Marshall says the state has already interviewed one of the two supposedly new witnesses (Jones disputes this). DOJ’s 2016 investigation looked into the planted gun allegations, and found no evidence supporting them.
Jones refuses to tell DOJ the name of his second witness—a woman he says was just a few car-lengths away from the incident when it unfolded—unless officials commit to reopening the investigation.
“She didn’t see a gun before he was shot, didn’t see a gun after he was shot, didn’t see a gun fall to the ground, didn’t see a gun on the ground,” said Jones. “I audiotaped that conversation.”
Jones has not provided Delaware Public Media with the name of either witness.
“Time is of the essence for Mr. Jones to substantiate his claims of new evidence,” Marshall said in a statement late last month.
Kimeu Boynton, professor of criminal law at Delaware State University, saw DOJ’s initial investigation into McDole’s killing as thorough. He says whether DOJ should reopen the investigation based on the claims of new witnesses depends on several factors.
“I would be curious to know why the witnesses weren’t interviewed,” said Boynton. “Not that there would be anything nefarious there, but there’s always the question of—why now? Where were they? Was there any type of cover-up or conspiracy? These are all questions that would have to be answered.”
“But if they have relevant information, I think it should come to light,” he added.
Under Delaware’s Use of Force statute, law enforcement officers are justified in using deadly force when they believe it is necessary for self-protection—except under a narrow set of circumstances.
The 2016 DOJ investigation concluded Dellose could only be proven guilty under state law if both the way he assessed the situation and his decision to use deadly force were reckless.
Then-Attorney General Matt Denn determined probable cause could exist to pursue felony assault charges, which have a five-year statute of limitations, against Dellose. Denn reasoned the way Dellose advanced onto the scene, ignoring the warning of a fellow officer, and the way he shot McDole just two seconds after telling McDole to show his hands could be reckless conduct under state law.
“Although they say they would and possibly could bring a prosecution against Dellose for a felony assault, one of the things they are clear about is they may have probable cause, but what is the likelihood of them winning at trial?” said Boynton. “That’s one thing that is a big consideration for prosecutors.”
During the investigation, DOJ asked two experts who had also consulted on the Tamir Rice case to weigh in. They both said Dellose’s conduct did not violate Delaware’s criminal statute.
Boynton says simply having those expert opinions out there makes prosecution harder.
“If I was [Dellose's] defense attorney, certainly the first thing I would do is call the experts that the state hired back in 2015, 2016 to testify on my behalf,” he said.
Advocates and some elected officials— including Attorney General Kathy Jennings— are pushing to get the state’s Use of Force standard raised. But any prosecution of the officers would use the law at the time of the shooting.
“As we approach the statute of limitations, the state would have to do a lot to ramp up for a case,” said Boynton. “I’m not sure what conversations have been happening between the Attorney General’s Office and the family, but it still seems like a huge hurdle to overcome at this time.”
To Keandra McDole, there’s been little progress since her brother died.
“I really don't see no changes, because one of the same officers who murdered my brother, James MacCall, shot another young man by the name of Yahim Harris four times,” she said.
The Yahim Harris shooting is one of 14 other instances of police use of deadly force in Delaware that DOJ has investigated since McDole’s death. DOJ found all 14 cases to be justified.
DOJ did not release photographs of the gun Wilmington police say they found on McDole until late last month, following questions from Delaware Public Media for this article.
“I can’t speak to why these weren’t included in the original online report as I wasn’t here at the time that those decisions were made,” DOJ spokesperson Mat Marshall wrote in an email.
Keandra McDole says she had asked the state for the photos multiple times since her brother was shot and was always given “the runaround.” After seeing them, McDole maintains her brother never possessed nor had access to the gun in the photographs.
As for the four officers who shot McDole, Wilmington police say they are no longer employed on the force—but will not specify the nature of their departure, citing the Law Enforcement Officers’ Bill of Rights.
Wilmington Police Department spokesperson David Karas did not respond to questions about the planted gun allegations, whether the four officers were disciplined or whether Department training has changed since McDole’s death.