Mimesis Law
28 June 2017

Have Some Sympathy For Anita Alvarez

Jan. 27, 2016 (Mimesis Law) — On October 20, 2014, Laquan McDonald was killed by Chicago police officers. Hey, those sorts of things happen in big cities, right? Sadly, so. But it’s not often that they get caught on video. And it’s even less often that the video looks like this.

Lest you be inclined to try to defend the shooting by saying, you can’t see his hand, he’s walking in the middle of the road, he’s not listening to police commands, consider that Chicago handed the family five million dollars to go away. No lawsuit. No public fuss. No real attempt to evade payment with cool legal concepts like qualified immunity. In less than six months, Chicago paid to make it go away. Plainly, Chicago concluded that the family’s wrongful death case was what we lawyers call a lay down winner.  But that’s only the civil side of a homicide. What about the criminal side of it?

Enter Anita Alvarez.

She’s the elected prosecutor for Cook County, which, if you didn’t know, is where Chicago sits. If you’re thinking of her like Sam Waterston’s character in Law and Order, then stop. According to her website, she oversees about 1,700 employees, and her office has more divisions than she cares to fully list. She probably hasn’t seen the inside of a courtroom since she was elected. Instead, her days are probably filled with budget meetings, campaigning and phone calls from elected officials. The kind of things kids dream about when they tell their parents, “I am going to grow up and be a prosecutor.”

It would be fantasy to think Alvarez personally was working the case up for grand jury presentation and later trial. She’s more a bureaucrat than a trial attorney. Yet, she’s the elected prosecutor. If she’s not accountable for her office’s charging decisions, who is? That’s why she’s being questioned about having waited until after the election to charge the officer who shot Laquan McDonald with murder.

If you’re thinking, you haven’t convinced me that I should be sympathetic to an over-educated bureaucrat who seemingly played politics instead of charging a police officer for the homicide of a young black man, that’s perfectly understandable. And so we continue.

First, if the criminal investigators (police officers) refuse to undertake a good criminal investigation, then it is exceptionally difficult for the prosecutor to proceed with the case. In Chicago, there appears to be political and cultural impediments into investigating a police officer involved in a homicide:

  • It would be more difficult for Chicago police officers to get away with misbehavior if not for two enabling forces: the loyalty of fellow cops and backup from a powerful police union. Both factors appear to have played a role in the McDonald case.
  • There is circumstantial evidence that Chicago police officers erased surveillance footage captured at a Burger King restaurant located near the shooting.
  • Though multiple officers were on the scene when Van Dyke committed a homicide that looks like a murder to most everyone who views the footage, none of them has spoken out publicly to criticize their colleague. And Van Dyke evidently felt comfortable shooting as he did despite being surrounded by other cops.
  • A Chicago police-union spokesperson, Pat Camden, misled the public about what happened on the night of the shooting, as a comparison of his statement with other witnesses and the just-released dash-cam footage demonstrates.

Normally the prosecutor is part of the team, but the signs here point to the prosecutor being viewed as an outsider—at least when it’s an officer accused of wrongdoing. Prosecutors rely heavily on officers to gather the evidence, submit items for testing, and speak to witnesses. If the police refuse to do their part, then on what basis can a prosecutor hope to build a winning case? The video certainly looks like compelling evidence, but if the officers on the scene testify that there was a sudden hand movement or a verbal threat, then the video alone will likely be insufficient.

And that leads to the second, more important consideration: the law. Most, if not all, states have a very forgiving standard for officer-committed homicide. Suppose that Alvarez was able to get full cooperation by the police, a conviction is by no means a certainty. And even when a prosecutor is able to get a conviction, it may not be upheld. In a recent case from the Supreme Court of Ohio, the court cited to an older Iowa case that held the following:

An officer, in the performance of his duty as such, stands on an entirely different footing from an individual. He is a minister of justice, and entitled to the peculiar protection of the law. Without submission to his authority there is no security, and anarchy reigns supreme. He must, of necessity, be the aggressor, and the law affords him special protection.

There you have it. The starting place in the common law was that officers were afforded “special protection.”

Although the Supreme Court of the United States, in Tennessee v. Garner, may have slightly tightened the standard for use of force under the Fourth Amendment, the common law still echoes loudly in prosecutions. Consider the position that Alvarez found herself in: the courts have set the bar for conviction for police officers higher than it would be for anyone else, and the police officers themselves may not cooperate in preparing a case against a fellow officer for trial. In that light, the most likely outcome was for Alvarez to decline charging the officer.

And that’s all before considering the practical issue of getting 12 jurors to convict an officer. The prosecutor must convince 12 jurors that the “good guy” did something criminal to the “bad guy.” That’s akin to the uphill task facing the tormented Sisyphus.

While the shooting of Laquan McDonald arguably lacks justification, the other high profile Chicago shooting victim Cedrick Chatman, is far less clear.  He was another young black man shot in the street by officers. As it turned out, he was carrying a cellphone box and not a weapon.

It doesn’t actually matter if the victim was carrying a cellphone box and not a weapon; the legal question is whether it was reasonable for the officer to believe he was in danger. Jurors are instructed to review whether the use of force was reasonable from the officer’s perspective at the time. This is still a sort of “special protection” provided to police officers. If every officer testifies that at the moment the shooting occurred they thought the dark object in his hand was a gun, then a conviction is unlikely.

Should Alvarez be expected to charge either officer involved if the end result is likely to be an acquittal? No, she shouldn’t hold officers to a lower threshold for initiating prosecution. In other words, if Alvarez did not reasonably believe she could prove the guilt of the officers beyond a reasonable doubt, she rightly concluded not to charge them. We wouldn’t want prosecutors regularly charging citizens with serious crimes, despite the prosecutor’s belief that the person is not guilty beyond a reasonable doubt.

So have some sympathy for the Cook County State’s Attorney. Bad law and bad facts forced her to treat police officers no worse than any other citizen accused of a homicide.

7 Comments on this post.

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  • StevenK
    27 January 2016 at 8:21 am - Reply

    A few points:

    A comparison to Sam Patterson may not be fair, but one to Fred Thompson is likely closer to the mark.

    Most large District Attorney offices have their own investigators, for precisely those occasions when the DA can’t rely on the police to do their jobs, or when the police department may be compromised.

    Prosecutors are supposed to prosecute even when the road to a conviction is a difficult one. Their job is to seek justice, not just pad their conviction rates.

    I don’t feel sorry for her at all.

    • Scott Jacobs
      27 January 2016 at 12:58 pm - Reply

      Nor do I.

      In fact, I think that being forced out of office is far, far to good for her, to the point I start assembling sentences that contain words like “feather” and “tar” and “rail” and when I’m especially angry, “torches” and “pitchforks.”

  • jay
    27 January 2016 at 10:00 am - Reply

    This sounds like a job for Batman.

  • fiver
    27 January 2016 at 1:56 pm - Reply

    I’m going to pretend I didn’t notice the tongue-in-cheek. 😉

    There is an implicit assumption here that Alvarez has been acting in good faith. That assumption really can’t be justified given her own history and the history of that office. These are the folks who buried charges of “widespread and systematic torture” so well that the statutes of limitations ran. That’s not just some amateurs hiding something, that’s a clear sign they’ve perfected the art form.

    Also, Alvarez herself has admitted that this case should be charged by, well, charging it. I can’t wait to see how they are going to throw this case. My guess is a half-hearted prosecution combined with an intentional Brady violation just in case.

    It worked for Tedd Stevens.

    Thanks for the article. I like this place

  • Cornflake S. Pecially
    27 January 2016 at 2:40 pm - Reply

    Bad law and bad facts forced her to treat police officers like any other citizen accused of a homicide.

    WTF? Is the publisher of Anita’s book, It’s Not My Fault, trolling for book jacket quotes on the front pages of Fault Lines or what?

    The campus kids attending law school are gonna love it! Hell, everyone one of them is gonna want to be one a prosecutor after reading it.

    I can’t wait to read all about her thoughts on why it is so critical to understand that the only standard is that from the perspective of a reasonable prosecutor on the case, especially an elected one that has to deal with the police union vote.

    Hindsight is for daycare workers and doctors.

    I can’t believe I have been missing that which is so obvious all along. The only question is whether the prosecutor’s actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.

    Silly me.

    Thanks Andrew, I don’t think I could have ever gotten here without this insightful post of yours. It really is true, the only thing keeping us from anarchy in the streets is lawyers looking after lawyers while they protect us. You are absolutely right, anyone in her shoes, faced with all the split second decisions she was forced to make, would have played it the same way.

  • Be Careful What You Wish For, McGinty & Alvarez Edition
    22 March 2016 at 8:59 am - Reply

    […] Anita Alvarez has been the subject of one of my posts. And Tim McGinty is a prosecutor in my state. In both cases, Scott is right to point that they both apparently failed to manage a media crisis. […]

  • Leave Jeff Sessions Alone! 
    6 January 2017 at 12:52 pm - Reply

    […] be Attorney General. This has led to a gnashing of teeth and rending of garments. In the fashion of Anita Alvarez, Tim McGinty, and Judge Persky before him, Senator Sessions will get a Fault Lines defense—free […]