Jay Sterling Silver is a professor at the St. Thomas University School of Law in Miami.
The lesson to be learned from the refusal of two grand juries, in Missouri and New York, to indict police officers in the deaths of Michael Brown and Eric Garner is not that police can get away with murder. Nor is it that the grand jury vending machine can be programmed to return a “no bill of indictment” in addition to the “true bills” it normally dispenses. We’ve known that all along.
The real lesson, at least in terms of criminal procedure, is that there is an inherent conflict of interest in giving local prosecutors so much control over the decision whether to charge police for allegations of bias or excessive use of force — and a compelling need for an independent special prosecutor to handle such cases from start to finish. That’s true in states such as Missouri, where prosecutors can choose to initiate charges either directly or via grand jury, and in states such as New York, where felonies must be charged through the grand jury process.
In the case of Brown, St. Louis County Prosecuting Attorney Robert McCulloch’s clumsy effort to shift responsibility for the decision not to charge Wilson from his office to the grand jury underscored the universal need of local prosecutors to maintain smooth relations with the police — the ones, after all, who arrest and collect evidence against the bad guys those prosecutors are trying to put away. It would have been biting the hand that feeds him for McCulloch to have obtained a homicide charge against Wilson.
Instead, McCulloch seems to have opted for what he saw as the lesser of the inevitable evils: public disapprobation for the lack of police accountability in Brown’s killing. It’s the same logic that prosecutors follow whenever they overlook police perjury on the witness stand or, as cops themselves sometimes term it, “creative writing” in police reports.
In a rambling, Orwellian announcement of the grand jury’s decision, McCulloch did his best to divert attention from the failure to indict, first blaming the media for disrupting the grand jury process and then seeking to shift responsibility to the community to reduce police killings: “I think the people in the community, they need to make their voices heard and they need to address those issues . . . so that we’re never in this position again.”
He needn’t have bothered. From the moment the first car was set on fire after McCulloch announced the grand jury’s decision, the media focused primarily on the looting in Ferguson.
To promote fairness and confidence in the process, cases of suspected police bias and brutality should automatically be transferred to independent prosecutors whose ability to do their jobs is not dependent upon their standing with the local police. Just as we wouldn’t allow prosecutors to decide whether charges will be lodged against a member of their family, we must not continue to permit prosecutors to guide that decision for members of their occupational family.
We don’t know many details about the grand jury proceedings in Staten Island, but even if a local prosecutor is as fair and objective as the day is long, when it comes to conflicts of interest, appearances count. The mere appearance of a conflict in the charging process diminishes the community’s belief that justice will be done, which in turn shapes attitudes about the legitimacy of law enforcement and the judicial process and, ultimately, influences the nature of police-citizen encounters. Shifting the charging function in such cases to a special prosecutor would have a positive effect on the police side of such encounters, too: Bad actors could no longer operate with impunity in poor and minority communities.
Who would choose the special prosecutor? There are many ways it could be done, but given today’s hopelessly partisan political climate, perhaps the appointment would best be made by a standing commission of lawyers, judges and state lawmakers — with the lawmakers being drawn in equal numbers from both sides of the aisle. The members of the commission could be appointed by a bipartisan panel of state lawmakers.
The specifics can be worked out, but the larger lesson is clear: The conflict of interest at the core of the grand jury process and the pass given to police who kill civilians are an abuse of authority of a kind that, a long time ago, our system of government was established to allay. The question now is: How many communities must ignite before we fix the problem?
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