Policing the Police: The Need For Special Prosecutors in #Ferguson

November 26, 2014

Regardless of one’s personal perception of the grand jury’s decision in Ferguson, reasonable citizens can agree that continued violence and destruction of property have no historical precedence in solving injustice (perceived or real) within this country.  It cannot and should not be condoned in any way, shape or form.  Political alliances aside, we can all rationally agree that this country remains in a world-leadership position and relatively civil based on the respect for law and order.

 

Reading the published grand jury documentation, detailing the accounts of 60 witnesses and Darren Wilson himself, I cannot divorce myself from the application of law, the subsidiary intention of the law and personal experience with prosecutors.  While the media covers the Ferguson grand jury proceeding in trial-like fashion, it is important to remember that this particular process is not an actual trial.  The referenced sessions were indictment proceedings with significantly different legal characteristics and expectations.  The evidentiary standard for “probable cause” does not come close to the standard to determine guilt “beyond any reasonable doubt."  It is the assigned District Attorney’s duty and responsibility to present the case – proving probable cause to indict and proceed with an appropriate trial.

 

District Attorneys are accustomed to assembling evidence from various sources, witnesses and importantly enough, police officers.  These police officers are within the same jurisdiction of the District Attorney and naturally familiar to him or her – given the interconnectedness of both parties.  Trusting relationships between the local District Attorney and the jurisdiction’s police officers are built and relied upon to try cases.  Here is the underlying dilemma: what are the expectations of the local District Attorney’s prosecution of his own trusted law enforcement colleague?  Essentially, who polices the police in cases of accused misconduct?

 

Grand jury proceedings are private sessions that have only the grand jury, witnesses and the defendant present.  As a criminal defense attorney, I am not allowed in those proceedings with my client.  The prosecutor has almost free range to question the accused without any rebuttal from a defense attorney.  As a practical matter, a grand jury will almost always return an indictment presented to it by a prosecutor. This is the basis for Judge Sol Wachtler's famous saying that a prosecutor can get a grand jury to 'indict a ham sandwich.'"

 

The documented testimony is rife with conflicting testimony by the officer and other witnesses.  For example, Officer Wilson believed that a third blow from a 295-pound young man could have been fatal, but one cannot see the first two blows anywhere on his face, and he saw no need to seek medical attention prior to consulting with his attorney.  A grand juror (not the prosecuting District Attorney) asks Wilson if he thought that Michael Brown had a gun, to which Wilson responds, “I wasn’t thinking about that at that time” – with no follow-up question from the prosecutor.  Wilson’s department never asks him to give a statement, and Wilson only gave the one that he wrote for his own attorney – conveniently protecting it from initial disclosure.  These developments do not prove guilt or innocence, but, combined with the loss of life, do rise to the level of trial consideration to determine guilt or innocence.

 

My suspicions were justified after reading the prosecuting attorney’s unusually accommodating line of questioning and even apologetic statements when he believed that he was applying "too much stress” on Wilson.  This posture is the exact opposite expectation of vigorous cross-examination questioning and displays special treatment afforded to Officer Wilson.   Wilson was allowed over four full hours to present his testimony and he

was never asked how Michael Brown was a threat if Brown was running away.  This is highly uncommon for criminal cases, according to legal experts and collective experience. 

 

The truth is the District Attorney did not want to reach an indictment in this case.  Why does this especially lenient questioning only apply to Officer Wilson?  Why doesn’t this also apply to every other citizen that is accused of unlawful murder?  It is so obvious to me and any reasonable colleague.  Given that pending and future cases hinge upon the testimony and evidence provided by his jurisdiction’s police force, one can reasonably understand (and not agree) with his lack of vigor.

 

It is my suggestion to remove the possibility of personal and professional conflict by appointing an independent prosecutor in cases of police misconduct.  This one straightforward act could go a long way in creating the impression of impartiality.  It also restores the public’s faith in fair prosecution of law enforcement injustice.  It is clear that across America, policemen are charged with using excessive force.  It is also clear that cases involving fatalities aren’t always fairly presented in front of grand juries or trial juries.  There is no better time than the present to address these perceived inequalities.  Policemen are charged with enforcing the law and are not above it.  At times, the police need policing too.  No jurisdiction should have the common District Attorney prosecute any law enforcement officer in a criminal case, especially one that resulted in a human being's death.

 

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