Earlier this month, the Los Angeles Association of Deputy District Attorneys (ADDA) put out a press release by president Marc Debbaudt expressing opposition to a new bill that would bring in an outside prosecutor to investigate police shootings. The bill is similar to one recently passed in Wisconsin and signed into law by Gov. Scott Walker. The thinking behind these bills is that local DAs need to have a healthy working relationship with the law enforcement agencies in their jurisdiction. That need to cooperate with local police, along with local pressure from police unions and police benevolence groups, can bias prosecutors toward clearing cops who need to be held accountable.
Debbaudt and the ADDA are miffed that the bill’s sponsor and supporters don’t think local prosecutors are capable of conducting impartial investigations. But recognizing the incentives at play in these investigations isn’t suggesting that all prosecutors are corrupt or are openly biased toward police. It’s merely showing an understanding that incentives matter and that we should structure these investigations in a way that minimizes bias — whether explicit or cognitive. It’s also important that the public perceives the system to be fair. This point — fighting the appearance of bias — may seem like kowtowing to the masses. But police agencies in particular should be concerned about how the public perceives these investigations. If most cops are good cops, then most cops will be cleared when they’re wrongly accused. But when egregiously bad cops are never held to account, even after multiple offenses, the public will start to question the process itself. And that calls into question the clearances of the good cops, too.
I’ve talked to many defense attorneys in St. Louis County over the past year. Most of them think the decision not to indict Darren Wilson in the death of Michael Brown was correct. That doesn’t mean they think Brown’s death couldn’t have been avoided. Nor does that in any way mitigate all the surrounding issues that surfaced and attracted national attention after Brown’s death. But most defense attorneys I’ve talked to think there wasn’t enough evidence of criminal wrongdoing to merit an indictment. (They’ll also all tell you that regular suspects don’t get nearly the same sort of deference and consideration that the system grants to cops who are under investigation.) But because St. Louis County prosecutor Bob McCulloch had such close ties to police, seemed so openly and unapologetically sympathetic to Wilson and was so hostile to and derisive of protesters, a good portion of the protest community would never have accepted anything less than an indictment. An outside prosecutor would probably have been seen as more legitimate. (Note that we didn’t see the same anger when the Justice Department also cleared Wilson.)
But there’s another reason that even law-and-order people should support bills like this one: When a cop does merit an indictment, having all of that handled by an outside organization or prosecutor preserves the relationship between the local prosecutor and the police. That means there’s no animosity going forward, no resentment that could hamper day-to-day investigations.
Back in January, Bernalillo County (N.M.) District Attorney Kari Brandenburg charged two Albuquerque police officers in the shooting death of homeless man James Boyd. Brandenburg immediately faced consequences from local police, who have a history of retaliating against whistleblowers and critics. Days later, one of Brandenburg’s deputy prosecutors was shut out of a meeting of city officials to discuss another police shooting. Brandenburg was later removed from the investigation by a judge after police claimed she faced a conflict of interest due to an unrelated police investigation of Brandenburg herself in a case involving her son. But that case didn’t seem to be a problem until Brandenburg decided to indict two Albuquerque cops.
In Salt Lake County, Utah, DA Sim Gill also faced backlash from police groups and the police union when he indicted two officers in the shooting death of 21-year-old Danielle Willard. The attacks on Gill included not just promises to back a challenger in the next election, but also ugly suggestions that his Indian ethnicity and background may have clouded his judgment.
But these arguments in support of outside investigations of police incidents assume that everyone wants a just outcome — that culpable cops be indicted and that innocent cops be cleared. What’s striking about the ADDA press release is just how dismissive Debbaudt is of even the possibility that occasionally, a cop may do something that merits criminal charges. The two themes that dominate the release are a) local prosecutors can be trusted to administer justice in investigations of police, and b) justice means clearing cops of wrongdoing.
From the opening paragraphs:
This bill reflects a fundamental misunderstanding of the role of a prosecutor and the administration of justice. It is bad public policy and, indeed, would undermine the pursuit of justice and threaten the safety of police officers and residents throughout California.
In the words of famed Supreme Court Justice Robert Jackson, “a prosecutor should seek justice” when making a decision to file charges. Seeking justice does not mean filing charges when injustice would result. It does not mean filing charges to satisfy politics, public opinion or make a social statement. And it does not mean a District Attorney’s Office should abandon its role as gatekeeper of justice and pass the buck by filing charges to let the jury decide.
The second paragraph is unobjectionable. But the criticism of how prosecutors handle police abuse cases is twofold. First, there is the criticism that cops are rarely held criminally accountable. But the corresponding criticism is that prosecutors don’t show nearly the same deference to the rights and presumed innocence of regular people that they show to cops. The statistics are incredibly lopsided. Cops are almost never indicted after grand jury investigations. Non-cops almost never aren’t. One can conceive of a couple of rebuttals to this argument. But what’s notable here is that the ADDA release doesn’t bother to try.
Assemblyman Kevin McCarty, who authored the bill, claims “There is skepticism in the current process where local DA’s investigate cops they work most closely with. To foster better transparency in the process, a common sense reform would be to have an independent review process by the Department of Justice to investigate police shootings where a civilian death occurs.”
In the Los Angeles District Attorney’s Office there are nearly 1000 deputy district attorneys. No one is investigating “cops they work most closely with.” That just doesn’t happen in my experience, and this office would not tolerate that kind of obvious bias.
The point is not that each prosecutor will inevitably have a personal relationship with each cop he or she is asked to investigate. It’s that at the macro level, a DA needs to preserve a working relationship with the police. And that necessity will color the way a DA handles these investigations. Even when and if it doesn’t, the DA could face retaliation from police groups for bringing indictments, which could make other investigations more difficult.
Note also the tone here. In the same press release in which Debbaudt is touting the professionalism and judgment of the state’s prosecutors, he, who has been chosen to speak on their behalf, is mocking and openly contemptuous of people who have expressed concern about the administration of justice.
The people who mistrust District Attorney reviews will be no more trusting of an independent prosecutor’s reviews unless officers are continually prosecuted.
These critics aren’t upset at the review process; they are upset that more police officers aren’t prosecuted. One just has to listen to the news to hear countless demands in the aftermath of recent police shootings that the officers should be charged and that it should be left to the “jury to decide” if the action was criminal.
A wide range of people support outside investigations of police shootings for a wide range of reasons. Debbaudt is correct that prosecutors should only bring charges they feel are supported by the evidence and leave justice solely to juries. (Again, it’s notable how we only tend to see this point made by prosecutors during police investigations.) He’s also right that some police critics have called for exactly that. But certainly not all of them have. And those that have don’t invalidate all the other complaints.
Most reform advocates also believe that while outside investigations are a step in the right direction, the policy isn’t a panacea. Other reforms may be necessary. Debbaudt takes this as a sign that reformers just want indictments. But it’s hyperbolic to say that all reformers want police officers “continually prosecuted.” When you consider, for example, the effectiveness of the blue wall of silence or the laws that grant officers extra protections not afforded to regular people, it isn’t difficult to understand why some people think the system is rigged.
Moreover, pointing out that some police critics may not be satisfied with a particular reform says little about whether that reform is a good idea unto itself.
In next passage, Debbaudt really goes off the rails.
Events in Baltimore illustrate why prosecutions driven by public fervor are terrible public policy. In announcing her decision to prosecute six officers a scant 24 hours after receiving the case reports, Baltimore States Attorney Marilyn Mosby made clear she was reacting to perceived public pressure when she stated, “To the people of Baltimore and the demonstrators across America: I heard your call for no justice, no peace.”
Mosby’s decision to prosecute based upon public pressure has created dangerous conditions for law enforcement professionals.
This is really a baffling place for Debbaudt to go. Mosby is a local prosecutor. So if Debbaudt believes her decision to indict was driven by local politics instead of justice, then that’s an argument for outside investigators, not against them.
But Debbaudt’s assessment of Mosby’s reasons for the indictments doesn’t even consider the possibility that she actually may have the evidence to support them — or even that she believes she does. Her comment about “no justice, no peace” may have been intemperate, but it may also have been a reflection of the fact that she believed, based on the evidence, that justice demanded an indictment. In just about every other context, prosecutors in high-profile cases routinely make public comments about the guilt of those they’ve charged, even though they aren’t supposed to. One could argue that some of Mosby’s comments were ill advised, but they certainly weren’t unusual.
Here again, note Debbaudt’s tone and the odd line of argumentation he’s chosen. Instead of arguing that local prosecutors are more than capable of holding bad cops accountable, perhaps even pointing to a couple of examples where that has happened, he instead opts to belittle the concerns of activists and reformers and attack a prosecutor who indicted two cops. Just after criticizing reformers for a tunnel-visioned pursuit of indictments instead of due process, he calls out one of the few prosecutors to charge a cop in a high-profile case, claims to know her real motivation for doing so and ignores the fact that if he’s right about her motivations, her example actually contradicts his argument. That sounds like someone more concerned by outcome than by process.
More from Debbaudt:
Mosby’s decision to prosecute based upon public pressure has created dangerous conditions for law enforcement professionals. Highly respected Baltimore Police Commissioner Anthony Batts told the City Council, “If I get out of my car and make a stop for a reasonable suspicion that leads to probable cause but I make a mistake on it, will I be arrested? They pull up to a scene and another officer has done something that they don’t know, it may be illegal, will they be arrested for it? Those are things they are asking.”
As a result, Baltimore police have stopped actively policing. Arrests in Baltimore have dropped 50 percent in recent weeks, but not because crime is dropping. In fact, with 38 homicides, this was the deadliest month in Baltimore in fifteen years.
If Debbaudt were a prosecutor interested only in justice and not at all beholden to police, you’d think he’d find it abhorrent that Baltimore cops are (allegedly) refusing to do their jobs. He might even call for an investigation to see whether this work slowdown that’s putting Baltimore lives at risk is being coordinated or centrally planned. Instead, he cites the alleged slowdown as reason not to indict cops. By citing these figures, he’s implying that Mosby should have known that Baltimore police wouldn’t react well to an indictment and factored that into her decision.
These are exactly the sorts of pressures that police critics and reformers cite in calling for outside investigators for these cases. Debbaudt spends several paragraphs scolding them for daring to suggest that prosecutors might bend to pressure from police — then he criticizes a prosecutor for refusing to bend to police.
It gets even odder from there. Debbaudt then quotes a lengthy passage in opposition to the bill and praising the judgment of local prosecutors from the Peace Officers Research Association of California (PORAC). This is an advocacy group for law enforcement. PORAC even runs a legal defense fund for cops.
So Debbaudt is offended that this California bill implies that local prosecutors can’t be fair and impartial when investigating cops. To support his position that the bill is bad policy and that prosecutors can be impartial in these investigations, he quotes approvingly from an organization that advocates for police officers and provides legal defense for cops who are under investigation. They agree with him!
Debbaudt then predicts what will happen should this new bill become law.
This “independent prosecutor” won’t be independent at all but will face public pressure to charge, and instead of making the just decision up front whether to file or not, will instead choose to let a jury decide if an officer’s action was criminal.
But that isn’t what has happened in Wisconsin, the first state to pass a bill like this. The first case investigated by the outside agency was the death of Tony Robinson, a black teen shot by a white police officer. The racially charged case drew protests all over Madison and calls for an indictment from all over the country. And then the outside agency . . . cleared the officer of any wrongdoing.
Here’s how Debbaudt concludes:
Finally, the “skepticism” surrounding police shooting is not a problem that rises to the level of indicting the system and requiring fundamental change. Not to minimize the disturbing nature of legitimate police misconduct when it occurs, it is a statistical anomaly given the number of police officers and crimes they investigate every day, every year, across this nation. That the media sensationalizes the few examples, the actual numbers demonstrate that the system is working at virtual perfection and correcting itself when the anomalies occur.
This is just more of the same.
I’m sure there are better arguments to support that position that local prosecutors are capable of holding bad cops accountable. But this press release is an awfully persuasive argument that they aren’t.
Instead of arguing that local prosecutors are immune to pressure from local police groups, Debbaudt and the ADDA criticize a local prosecutor for not factoring the possible local police reaction into her decision to indict. Instead of attempting to reassure criminal justice reformers that local DA offices evaluate police abuse complaints fairly and without prejudice, he actually demonstrates bias by proclaiming that police misconduct is a “statistical anomaly” and that “the system is working at virtual perfection.”
Debbaudt wastes few words arguing that prosecutors aren’t biased when investigating police. Instead, he mostly contends that the question of bias is beside the point, because the police almost never do anything wrong. Remember, this isn’t just some rogue prosecutor. He was chosen to speak on behalf of other prosecutors in Los Angeles County.
If I were a criminal justice reform group pushing for one of these laws, I’d be trying to get this guy on every TV news show in the United States. Because the most convincing case for these laws might just be Marc Debbaudt arguing against them.