Local Prosecutors Can Handle Cop Prosecutions Just Fine
Feb. 10, 2016 (Mimesis Law) — The list of community members whom prosecutors can be trusted to prosecute include bankers, teachers, business owners, firefighters, juveniles, and even state representatives. But, so the thinking goes, local prosecutors cannot be trusted to faithfully prosecute police officers when they shoot someone. The New York Attorney General states this general belief here:
The question in these difficult cases is not whether a local prosecutor, including one with understandably close ties to his or her fellow local law enforcement officers, is capable of setting aside any personal biases in deciding whether, or how vigorously, to pursue the case. Rather, the question is whether there is public confidence that justice has been served, especially in cases where homicide or other serious charges against the accused officer are not pursued or are dismissed prior to a trial by jury.
In sum, the NY AG tells local prosecutors, “I am not saying you can’t be trusted; it’s just that we’re not going to trust you.” It’s a troubling conclusion. As local prosecutors are often called on to charge important people in the community, so why not police officers? Indeed, prosecutors often prosecute local police officers for crimes unrelated to on-duty shootings, such as for theft in office. Yet, for some largely unexplained reason, police shootings are now seen as different.
The closest thing to an explanation is usually something along the lines that a prosecutor will pay too high a political price by going after cops. Yet, local prosecutors appear to be one of the offices least susceptible to political pressure:
Incumbent prosecutors win reelection 95 percent of the time—a rate that would make even members of Congress jealous—for the simple reason that they frequently run unopposed. (One study found that prosecutors run unopposed 84 percent of the time, a number far higher than state legislative races.)
Notably, the complaint was that prosecutors are too unaccountable. Yet, when it comes to police shootings, the call is that prosecutors aren’t publicly accountable enough. So, it simply appears that the facts are framed by top stories in the news cycle. But the point stands, prosecutors are independent enough to prosecute police officers without fear of losing their posts.
Moreover, to the extent that prosecutors can be persuaded by public opinion, it appears to be in the direction reformers want. Though it seems like the spread of cameras has had more of an impact than political pressure on prosecuting police officers:
If you take the cases with the video away, you are left with what we would expect to see over the past 10 years – about five cases,” Philip Stinson, a criminologist at Bowling Green State University who was quoted by the Associated Press in a story last week. “You have to wonder if there would have been charges if there wasn’t video evidence.
None of this is to say county prosecutors should always, without question, handle police shooting cases. Certainly, there are instances where the county prosecutor may have a conflict due to a specific agency having an attorney-client relationship with the prosecutor. In such a case where the prosecutor might also defend a wrongful death or civil rights lawsuit, it is understandable for outside counsel to be appointed to altogether avoid a potential conflict of interest. But, as a general matter, prosecutors are trusted to prosecute the criminal acts committed by employees of their clients. They can and should be trusted to prosecute cases against police officers.
A response like, “okay, maybe we can trust them, but with the post-Ferguson image problem, what harm could it do to take it out of the hands of local prosecutors,” still misses the mark. It would still unjustifiably curtail both the authority of prosecutors and the presumption of local control in favor of a certain type of defendant, accused of a certain kind of offense. Thus, the demand for reformers is special treatment for police officers. This categorical exemption draws a legal line without an articulable rule, as compared to the classical distinction between felony and misdemeanor.
If the allocation of authority is going to be based solely on feelz, then let’s not stop with prosecutors. There is no reason not to demand a visiting judge in all police shooting cases. After all, the judge sees the officers testify regularly and evaluates their work product, perhaps even receiving FOP endorsements. So, they too could be influenced by such a relationship. Likewise when determining venue, there is no reason not to move the case outside the jurisdiction. The local community might have a special relationship with the police department because they rely on those officers for protection. And if that department stations officers in schools, that too might influence how parents feel about them.
The not-so-legal standard of “why not; it doesn’t hurt anything” knows few limits.
Moreover, some of the suggested changes also lack an articulable principal. For example, John Pfaff suggested that appointing public defenders as special prosecutors in police shooting cases is perhaps the best solution. Among the four reasons he states is the following:
- It solves the problem of confirmation bias/personal investment. Unlike prosecutors, public defenders work against the police. So they lack the inherent inclination to believe them (that’s the confirmation bias part), and they don’t have to worry about jeopardizing on-going relationships. Of course, the problem could run the other direction, that they overestimate the likelihood the police are guilty and go to trial too often. But my data-free gut instinct is that “net” confirmation bias would drop. Regardless, the beyond a reasonable doubt standard should protect police from excessive PD zeal.
As often as prosecutors are accused of being overzealous, it is puzzling here that the reasonable doubt standard is seen as sufficient to protect police officers. If that is true, we can declare victory on abusive prosecutions everywhere and go home because that standard protects all criminal defendants–not just police officers. It is doubtful Pfaff feels like way.
Thus, this looks a lot more like rationalizing than reasoning. Plus, if the “sure, why not” is our governing principle, then why not public defenders in charge of all police prosecutions, why not all public corruption cases, why not all crimes involving public employees, and so on.
Mere suspicions and accusations of misuse of prosecutorial power without principles will lead to a legal dead end. Advocates of reform will never be able to get otherwise sympathetic prosecutors, legislators, and members of the bar to join their cause.
To be sure, the issue of ensuring that police officers are held accountable when they commit unjustified homicides should be addressed. And there are certainly issues such as misuse of Tasers that warrant further discussion. Yet, like blaming plea bargains for long sentences and wrongful convictions, blaming prosecutors for the statutory and constitutional legal protections that police officers enjoy is to focus on an effect rather than any true cause of grand jury no bills or acquittals regarding officer involved shootings.