The vast majority of us have a great deal of respect for police officers and the difficult job that they do. As with any profession (ahem), though, there are bad apples that can tend to spoil the bunch. I am regularly amazed to see officers continue to commit brutality and killings at relatively consistent levels year after year in spite of the fact that (a) virtually every citizen today carries a video recorder, and (b) the vast majority of patrolmen are now wearing body cameras. It begs the question: If the knowledge that their actions are almost certainly being recorded doesn’t curb police abuse, what will? I am not proposing here a comprehensive, multifaceted solution to this complex issue – I’ll leave that to the think tanks and other more learned public policy advocates. What I am suggesting below, however, is what I believe to be a concrete measure to redress the utter lack of accountability for offending officers in the criminal justice system. It seems to me the only way that we can solidify the public’s faith in the idea that police are not above the law is to ensure that those among them who do actually break the law are convicted and punished for the crimes they commit, just as would happen to you or me.
THE PROBLEM – A Conflict of Interest
Consider also how rare it is to find a case where the police brutality is so heinous (or so unavoidably public) that authorities feel they have no choice but to seek prosecution of the offending officer. Rarer still is the sight of a member of law enforcement actually indicted by a grand jury, let alone convicted after a trial. You have likely noticed that almost always in these cases one of the first things officials do is announce that they are bringing in a prosecutor from a different city than that in which the subject officer works so as to supposedly avoid any appearance of impropriety, bias, or conflict of interest. Using a prosecutor from several towns away, though, does nothing to alleviate the pro-police bias that invariably pervades these proceedings. A city could bring a prosecutor in from Timbuktu and it wouldn’t change a thing. No matter how you slice it prosecutors and police are on the same team – and it shows in their unnatural inability to obtain indictments in these particular types of cases. To really understand why so many accused police officers escape indictment, one has to first have a rudimentary understanding of the grand jury process.
In a grand jury the entire process is controlled by the prosecutor. As an example, criminal defense lawyers are never allowed inside a grand jury hearing even if their client is on the witness stand. It is the prosecutor and the prosecutor alone who gets to select which people the grand jurors hear from and what evidence they see – or don’t see. Further, every single piece of evidence or witness the prosecutor does present goes unchallenged, save for the few questions that may come from grand jurors. A more stark indication can be found in the numbers – according to the federal Bureau of Justice Statistics, in 2010 out of 162,000 cases brought by US Attorneys, the grand jury failed to indict on a minuscule 11 occasions. This means that 99.9999% of the time that a US Attorney sought an indictment that year, the grand jury returned an indictment. As a former Chief Judge of New York State once said, a prosecutor could “indict a ham sandwich” if that’s what he wanted. From a different perspective, consider that a target of a federal grand jury investigation in 2010 had a better chance to make a hole-in-one in a round of golf than he did to escape a grand jury indictment. The point is that the prosecutor wields enormous influence over what will be the outcome of a given grand jury proceeding. And when a law enforcement officer is cleared by a grand jury or acquitted by a trial jury, invariably the prosecuting authorities will stand at a microphone and point to that grand jury or that trial jury, as the case may be, and say: “The system worked” or “the jury has spoken.” Most of the time, however, that characterization is 100% rubbish.
Frankly, most prosecutors assigned to criminally investigate a police officer “take a dive,” i.e., they deliberately present a weak case with the intention that the grand jury not return an indictment.[1] Our justice system only works as well as it does because of its “adversarial” nature; where opposing sides vigorously advocate for their client and a neutral arbiter (jury or judge) reaches a decision. Because of the cozy philosophical and professional relationship between police and prosecutors, however, these kinds of cases are not adversarial in any sense of the word. This clear institutional, determinative conflict of interest fundamentally skews the outcomes of the vast majority of criminal investigations of police officers in this country. The logical remedy, then, is come up with a solution that restores that adversarial equilibrium – one that removes the inherent bias from the process altogether.
THE SOLUTION – “Special Prosecutors” from the Criminal Defense Bar
I propose that, in every city in America that houses a criminal courthouse, there be selected from the private criminal defense bar a panel of seasoned lawyers who have significant trial experience to voluntarily act as “Special Prosecutors” in any case wherein the target is a police officer suspected of having committed a crime. Unlike prosecutors who work with police officers, criminal defense attorneys are routinely tasked with confronting and cross-examining hostile police officers who are the key or sometimes only witnesses against their client. We are constantly challenging members of law enforcement, trying anything and everything within legal and ethical bounds to attack their credibility and to expose them as forgetful or liars or unreliable louts (assuming any of those proverbial <flat-footed> shoes fit). The point being that there is just a natural animosity between cops and defense lawyers – the kind that, if a criminal defense attorney were acting as a Special Prosecutor to investigate an alleged dirty cop, would all but eliminate concern about a less than zealous prosecution.
Of course, various details and logistics would need to be worked out for such panels and processes. For instance, (a) a defense lawyer acting as Special Prosecutor would likely also need the assistance of an actual prosecutor given that most criminal defense attorneys haven’t a thread of experience inside a grand jury room; and (b) how would these Special Prosecutors be paid, if at all? But if we are to be earnest about stemming what appears to be an unending, steady tide of police brutality and sometimes murder, we need a consequential solution. The current process in police misconduct cases being, for all practical purposes, a sham, my proposal of appointing a criminal defense lawyer as a Special Prosecutor will at least bring such matters back into the realm of our adversarial criminal justice system, where we have achieved our most reliable, even-handed and just results throughout our nation’s history.
[1] This article from 2014 highlights everything that I have identified here that is wrong with our current system for investigating police criminality.
http://www.kansascity.com/news/local/article1907128.html