A Former Portland Police Officer Who Fatally Shot Keaton Otis Is Now a Prosecutor

Last month, the Multnomah County District Attorney's Office hired a new prosecutor with an unusual background: Cody Berne is a former Portland police officer who in 2010 fatally shot Keaton Otis, a mentally ill black man.

Berne's hiring has outraged protesters of police violence against African-Americans. Otis was the last black man to be killed by Portland police, who fired 32 bullets at him after he shot an officer in the legs. Berne fired 11 of those rounds.

"It's pretty troubling that he is now on the other side of the criminal justice system, determining who gets charged and how that person gets charged," says Jo Ann Hardesty, a civil rights activist and one of the organizers of a monthly vigil for Otis.

Berne and his new boss, Multnomah County DA Rod Underhill, say there's absolutely nothing wrong with Berne's hiring.

"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."

At a minimum, however, 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. "When you make a hiring decision of a public officer, you are holding that person to the public as an exemplary person that merits the public's trust. The question the community is entitled to ask is if it was a good hiring decision."

On May 12, 2010, officers pulled Otis over near the Lloyd Center after he allegedly failed to use his turn signal while crossing traffic. As an officer attempted to remove him from his car, according to a subsequent police report, an irrational Otis grabbed a gun from the glove compartment of his Toyota Corolla and shot the officer in the legs, twice.

Fellow officers, including Berne, who is white, responded by firing 32 rounds at Otis, killing him.

A Multnomah County grand jury found no criminal wrongdoing by the officers. The Police Review Board found the shooting was "within policy."

Berne left the force in 2011, for reasons he says were unrelated to the fatal shooting.

He had unusual skills to fall back on. Before becoming a cop, he graduated from highly selective Pomona College. After leaving the Police Bureau, he enrolled at the University of California Davis School of Law, graduating in 2014. He then joined the Portland law firm Miller Nash, specializing in business litigation.

But he decided to return to criminal justice—placing his actions as a police officer back in the spotlight.

Assigned to the misdemeanor unit in the district attorney's office, Berne, 33, started participating in jury trials after taking his position Aug. 22.

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.

Others are not so sure.

David Rogers, executive director of the American Civil Liberties Union of Oregon, called the hiring a "setback."

"There is an all-time low in the level of trust between law enforcement and communities of color," Rogers says. "That lack of trust is further diminished when the district attorney's office fails to prosecute police misconduct, and the county's own research shows black people are treated more harshly by decisions within the DA's office. Hiring a person who was involved in a highly public killing of a young black man—who was racially profiled and who was experiencing a mental health crisis—does not build any credibility."

Law professor 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."

She isn't alone in raising such concerns. In 2012, the U.S. Department of Justice began an investigation into the Portland Police Bureau to examine whether police officers were using excessive force against people with mental illness. The investigation also looked into the bureau's relationships with minorities.

During the course of the investigation, the most prevalent concern the DOJ identified was "the often tense relationship between PPB and the African-American community."

Investigators found "a pattern and practice" of excessive force by officers of the bureau against persons with mental illness. The bureau is still making reforms under federal supervision.

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.

Following her son's death, Otis' mother, Felesia Otis, talked about her son's mental health problems—and told The Oregonian she didn't hold police responsible for his death. WW couldn't reach Felesia Otis for comment on this story.

Laura Appleman, a law professor at Willamette University, says she doesn't think there's anything wrong with hiring Berne as a prosecutor.

"A lot of police officers become prosecutors or defense attorneys," she says. "Everything [Berne] did as a police officer helped shape his work as a prosecutor."

Berne calls his shooting of Otis "a tragedy." He says it's easy for people to criticize the methods used by the Portland Police Bureau, yet he doesn't see them trying to solve the problem.

"I was a police officer a long time, and I exposed myself to all kinds of physical risk," he says. "No police officer wants to stop the car and end up getting in a shooting. If someone is going to shoot at the police, what does the community expect the police to do?"

Willamette Week