Mimesis Law
6 April 2020

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:

  1. 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.

11 Comments on this post.

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  • Ben
    10 February 2016 at 11:14 am - Reply

    Are you seriously arguing that prosecutors in general do not have an implicit bias towards justifying police use of force while on duty, and that that bias is not exacerbated by (if not originating from) the fact that prosecutors depend on the cooperation (and the public credibility) of police officers to prosecute virtually all of their other cases?

  • Paul
    10 February 2016 at 11:28 am - Reply

    So we should trust prosecutors to prosecute police because one prosecutor writes we can trust prosecutors to prosecute police? And this article doesn’t even mention the Eric Garner grand jury, the Tamir Rice grand jury or any other reason why someone might legitimately doubt the local DA’s ability to properly prosecute killer cops? This is a poor argument even by the standards of strawman arguments.

    Although is does reflect how prosecutors think. A prosecutor believes something is true, therefore it must be true, with no other evidence but the appeal to his own authority is typical of how prosecutors argue.

  • Andrew Fleischman
    10 February 2016 at 11:29 am - Reply

    Prosecutors don’t go easy on police officers because they worry about reelection. But they do worry about police officers showing up on time for hearings, testifying favorably, working cases, and not talking to defense counsel.

    If a prosecutor pursues charges against an officer, and the rest of the department disagrees, some of that cooperation might dry up. That’s an incentive that a special prosecutor doesn’t have.

    • Andrew King
      12 February 2016 at 7:50 am - Reply

      The invitation of my article was to introduce some rigor into the “familiarity” argument. As I see it, such a statement is conclusory at best. If we rely on conclusions and anecdotes, then we can’t really have a discussion. As far as the lack of cooperation, that is completely speculative.

      For example, in my county, a local police chief is currently under indictment and two deputies and a state trooper were charged with dereliction of duty and convicted within the past few years. An former interim sheriff is currently under a federal indictment.

      In addition, another county prosecutor spent five years working on a case, getting a conviction, and then had the supreme court overturn it: http://www.wtol.com/story/20563813/ottawa-hills-officer-convicted-of-shooting-motorcyclist-to-get-new-trial

      So, at least in my state, local prosecutors can and do get convictions against police officers.

      • Andrew Fleischman
        12 February 2016 at 1:05 pm - Reply

        I know plenty of ethical prosecutors who will pursue charges against police officers. Anecdotally, I know they exist.

        But I also know that, in Georgia, we have a lot of officer shootings, and it’s pretty rare for a DA to seriously seek indictment. A few months ago, when a DA accidentally did get an indictment after specifically telling the jury not to indict, he dismissed it that afternoon.

        The value here isn’t so much that prosecutors aren’t capable of being impartial. Plenty of them are. But a rational outside observer could suspect a conflict of interest. And a big part of the value of our justice system is that it provides people with a sense of fairness.

        For the same reason that we require judges to recuse if there’s a reasonable suspicion of bias (because we don’t want to create a perception of unfairness when they stay on the case), or we don’t allow defense attorneys to represent codefendants even when they swear it’s okay, we could as a general rule, prevent even the perception of bias by having an outsider step in.

        Maybe you think the trade-off isn’t worth it. You’re much more experienced with how such special prosecutions affect a prosecutor’s office. But from the perspective of an outsider, it would make the system feel much fairer. And that has value all to itself.

  • Tom
    10 February 2016 at 2:45 pm - Reply

    “Thus, the demand for reformers is special treatment for police officers.”

    No, this is your assumption. The appearance is that officers already get special treatment. What reformers want is for the scales to be balanced equally.

  • dm
    11 February 2016 at 12:39 pm - Reply

    This article is disingenuous. See the reasons more particularly set forth by Ben, Paul, Andrew and Tom (especially Andrew).
    I hope the quality of other material posted here does not devolve to this level of uncritical, self-interested apologetics.

    • shg
      11 February 2016 at 1:10 pm - Reply

      No one would expect you to hear the prosecutor’s perspective and necessarily agree with it. Do you not think that what’s obvious to the defense side doesn’t come off as “uncritical, self-interested apologetics”? Be generous in your disagreement, or all you will hear is the hallelujah chorus.

  • Greg Prickett
    12 February 2016 at 1:28 am - Reply

    I’m sorry, Andrew, but you’re wrong. I waited a day to respond to make sure that this was not just an emotional response on my part, and I don’t think that it is.

    Bastrop County has the right way of dealing with an officer involved shooting trial.

    Get an outside agency to investigate, in that case the Texas Rangers.

    Appoint a special prosecutor, in that case a former felony prosecutor now in private practice.

    Indict the officer and try him. After the hung jury, let the special prosecutor agree to a change venue to another county.

    Watch the officer waive a jury for a bench trial in Bastrop County.

    It’s far, far better than what normally happens, when the local prosecutor handles it themselves. Almost every time that ends at the Grand Jury with a no bill. If an officer takes a life, unless it is crystal clear, meaning 50 eyewitnesses and film at 11, the officer needs to be tried. The public needs to make the decision through a jury or a judge. It shouldn’t be the decision of a prosecutor who is dependent on the good will of police officers.

    • Andrew King
      12 February 2016 at 7:39 am - Reply

      I certainly agree that an outside agency should do the investigation. Our local PDs have all agreed to that.

  • jdgalt
    13 February 2016 at 12:30 pm - Reply

    I have a better idea than appointing under-funded public defenders as special prosecutors — let’s adopt the British practice of allowing victims or their families to prosecute cases themselves (using an attorney, of course) if the state doesn’t want to bother. Only then can victims who justifiably feel that the whole system is against them expect to get justice.