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“Who Should Investigate Police Abuse?”: When Local DA’s Investigate Local Police Officers, There Is An Inherent Conflict Of Interest

The national conversation about police abuse will shortly take a new turn. Following the failures of local grand juries to bring charges against the white police officers who killed Michael Brown in Ferguson, Missouri, and Eric Garner, in Staten Island, protesters around the country took to the streets. Then, after the murders of the New York police officers Rafael Ramos and Wenjian Liu in Brooklyn on December 21st, a fierce backlash against the anti-police protests began. The result is a sour standoff, with opposing sides united only in their sense of victimhood. Protesters shout “I can’t breathe,” and cops turn their backs on Mayor Bill de Blasio—but now what?

To date, one serious proposal for reform has emerged. On December 8th, Eric Schneiderman, the Attorney General of New York, proposed that Governor Andrew Cuomo name him, Schneiderman, as an independent special prosecutor to investigate and, if appropriate, prosecute police officers in any situation where they cause the death of a civilian. As Schneiderman noted in his letter to the governor, the proposal seeks to address a real problem. When local district attorneys investigate local police officers, there is an inherent conflict of interest. In virtually all usual circumstances, police and prosecutors are partners, working together to build cases against defendants. This is especially true in a place like Staten Island, where the elected district attorney, Dan Donovan, both works closely with the police and answers to many of them as his constituents. As Schneinderman noted, on the rare occasions when prosecutors investigate the police, even when all parties act with the best of intentions, “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 jury trial.” Cases, in other words, like those of the officers who killed Brown and Garner. (Cuomo has hedged in response to Schneiderman’s idea, saying that he wants to weigh a full package of reforms.)

Schneiderman’s proposal met with a fiercely negative response from an unexpected quarter. Kenneth Thompson, the newly elected district attorney in Brooklyn, blasted Schneiderman’s proposal as “unworkable” and an insult to the state’s sixty-two elected district attorneys. Thompson, a Democrat, is hardly a mouthpiece for his colleagues in law enforcement; he defeated an incumbent district attorney, in significant part, by criticizing the cozy relationship between police and prosecutors in the borough. In his objections to Schneiderman’s proposal, Thompson pointed to potential practical problems—saying that it would stretch the attorney general too thin, particularly if it came to include all accusations of police brutality, not just those that ended in death. But Thompson’s objections were also more profound. “As the duly elected district attorney of Brooklyn, I am more than able to thoroughly and fairly investigate any fatality of an unarmed civilian by a police officer,” Thompson said. Indeed, Thompson recently brought a police-brutality case against two officers, and is investigating the recent police-shooting death of an unarmed man in a housing project.

The conflict between Schneiderman and Thompson illustrates a paradox, even a contradiction, in the criminal-justice system. New York, like most states, has a regime of elected countywide prosecutors. The idea is that law enforcement should respond to the needs of the local community, and for the subjective needs of the community to be paramount. But the system also demands objectivity—an ideal of justice untainted by the special interests of the locals. This is the heart of the conflict over Schneiderman’s idea, and both sides can point to examples that prove their point. It is true that local prosecutors like Thompson have, on occasion, brought successful cases against local police officers. And outsiders, who are not subject to the usual checks and balances on prosecutors, can abuse their freedom. “When you start to talk about special prosecutors—do we really want another Ken Starr?” Frank Sedita, the Erie County District Attorney, asked in response to Schneiderman, referring to the federal independent counsel who led the investigation of President Bill Clinton. The risk, according to Sedita, is ending up with “somebody who is not accountable to the public and specifically not accountable to the citizens of that county.”

Schneiderman’s idea has considerable appeal; his judgment in the Eric Garner case would surely have had more credibility than the one rendered by Donovan. Still, special prosecutors are not necessarily good or bad. Like the locals they replace, they are only as good as the cases they bring, or refrain from bringing. That, ultimately, will rest on the good judgment of the individuals involved, and no one has yet figured out a way of putting the right person in place all the time.

 

By: Jeffrey Toobin, The New Yorker, December 30, 2014

January 5, 2015 Posted by | District Attorney's, Police Abuse, Police Brutality | , , , , , , , , | Leave a comment

“Justice Must Satisfy The Appearance Of Justice”: The System Must Counteract Prosecutors’ Natural Sympathies For Cops

“Justice must satisfy the appearance of justice,” Felix Frankfurter wrote, in a Supreme Court case 60 years ago.

That edict — a foundation of democracy — has not been observed in some recent high-profile cases in which grand juries have refused to indict police officers for killing unarmed African-Americans. The resulting injury is not just to criminal justice but to the legitimacy of the government itself.

As a former prosecutor let me put this as directly as possible: Blame the prosecutors, not the grand jurors. There is one reason that Daniel Pantaleo is not being charged in the death of Eric Garner. It’s because District Attorney Dan Donovan of Staten Island did not want him to be.

Why not? The cynical point of view is that Donovan was playing to his base. Staten Island is the whitest and most conservative borough in New York. It’s also home for many cops. Maybe Donovan figured he would take heat however the grand jury came out, but the people who would be protesting in the street in the event of no indictment did not include most of his electorate.

But there is a more benign explanation. Maybe Donovan just appreciates that cops have one of the most difficult jobs in the world, and so, he cuts them some slack. It’s a very human reaction.

I speak from whence I know. One reason I became a prosecutor is that I had a number of bad experiences with the police where they racially profiled or just generally disrespected me. I thought I could go in as an undercover brother and change the system from the inside. What happened instead is that the system changed me.

When you work with cops every day you definitely gain more respect for their difficult work. And you need them to help you make your cases (every prosecutor has experienced having a police officer catch an attitude, sometimes in the middle of a trial, and purposely ruin your case because they don’t like you).

And finally policing is like most other employment — a few people do most of the work. So prosecutors see the same cops over and over, and they bond with them. It’s not so much that they excuse egregious misconduct as that they cast a blind eye. Nothing irks a cop more than an elitist prosecutor treating him or her like “some suspect.”

So the problem stems from the culture of the prosecutor’s office, compounded by the fact that, like most lawyers, prosecutors are competitive and ambitious and the way you move ahead is to win your cases, and the way you win cases is get your star witnesses — the cops — to go the extra mile. All that makes it really tough to try to send one of them to prison — even when they have messed up big time, as I believe Pantaleo did when he placed Eric Garner in a banned chokehold.

In a democracy, no one should be above the law. It’s fine for citizens to profoundly respect the men and women who serve as law enforcement officers. But when those people break the law, they must be held accountable just like anyone else. The automatic appointment of special prosecutors in criminal investigations of police is the best way to avoid district attorneys’ natural biases and make sure that justice satisfies the appearance of justice.

 

By: Paul Butler, Former Prosecutor and a Professor at Georgetown University Law Center; The Opinion Pages, Room for Debate, The New York Times, December 4, 2014

 

December 5, 2014 Posted by | Criminal Justice System, Democracy, District Attorney's | , , , , , , , | Leave a comment

   

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