The real reason police almost never face charges

By Michael Holtzman

We’ve all seen the videos: white police officers using extreme, sometimes deadly, force when confronting black or brown civilians. Some of these high-profile incidents have resulted in indictments of the police—the Walter Scott shooting in South Carolina is one such instance—but those are the rare exceptions. 

More typical are cases like the police shootings of Tamir Rice in Cleveland and Michael Brown in Ferguson, Missouri. In those cases and many, many others, the police officers are cleared of criminal charges.

Staunch law-and-order types argue that the evidence doesn’t support indictments, and that the system is working as it should. But is it? Or does the lack of police indictments stem from the cozy relationship of the local police and prosecutors?

Unwritten ethics

The American Bar Association’s (ABA) “Model Rules of Professional Conduct” state that a conflict of interest exists when an attorney faces a “significant risk” that his or her work will be affected by other responsibilities or interests. Prosecutors, like all lawyers, are subject to this essential ethical guideline and, at least theoretically, are required to recuse themselves from cases where their impartiality might be questioned.

So it might seem strange that nowhere in its 55 pages does the ABA’s  manual on criminal prosecutions — which provides specific and detailed ethics standards for prosecutors—deal with situations where local prosecutors (such as district attorneys) are called upon to indict police officers whose departments they work with on a daily basis.

But “strange” quickly turns into suspicious when you learn that 85 percent of the cops who were cleared of wrongdoing in killings were let off the hook through a process overseen by their prosecutor colleagues.

A structural conflict of interest

Prosecutors rely on the local police to collect evidence tied to alleged crimes and testify at trial, while cops rely on the prosecutors to secure convictions after investigations are complete. But this symbiotic relationship doesn’t end there: police unions routinely bestow public endorsements and thousands of dollars in campaign contributions on district attorneys, 95 percent of whom are elected.

What do the police unions get in return? Immunity from prosecution, apparently. As journalist Jamiles Lartey has reported in the Huffington Post, “In cases of police killings, prosecutors chose to indict roughly 6 to 8 percent of the time.”

In Chicago, the recent release of a dash-cam video showing officer Jason Van Dyke firing 16 rounds into Laquan McDonald has led to the first time a Chicago cop has been charged with first-degree murder for an on-duty fatality in almost 35 years. Similarly, between 1977 and 1995, not one New York cop was convicted on homicide charges for an on-duty shooting. Yet both these cities ranked in the top-10 for police shootings from 2010-2014, Chicago at #1 and New York at #6.

The grand jury charade

This built-in conflict of interest for prosecutors is frequently shielded from public view by the grand jury process. Typically, grand juries are a mere formality: 99 percent of federal grand juries indict, while at the state level the indictment rate is over 90 percent. A former chief judge of the New York Court of Appeals, Sol Wachtler, has said that a prosecutor could persuade a grand jury to “indict a ham sandwich.” That is, apparently, unless there’s an officer involved shooting, in which case the indictment rate falls to less than 50 percent.

Because the proceedings take place in secret, prosecutors can steer grand jurors toward a preferred outcome. They can do so through lukewarm advocacy and by failing to vigorously question witnesses who favor the police or aggressively challenging witnesses who favor the victim.

The routine grand jury process normally gives prosecutors sufficient political cover. But in high-profile cases, where there is a great deal more public scrutiny, prosecutors can turn what is usually a short proceeding into a “secret trial,” where grand jurors are swamped for weeks on end with vast amounts of evidence and testimony from cops who do not face cross-examination. This is what took place in the sham attempts to indict the cops who killed Michael Brown and Tamir Rice.

A simple solution

Accepting campaign contributions from police unions or failing to get a grand jury indictment of police officers is hardly conclusive evidence that every prosecutor is ethically compromised. Some are undoubtedly honest civil servants. The crux of the problem is not individual “bad apple” prosecutors shielding “bad apple” cops; it is a system that incentivizes shielding those who have been sworn to serve and protect from accountability.

The solution to the inherent conflict of interest in police prosecutions is relatively simple: give responsibility for investigating and prosecuting police killings to independent or special prosecutors, such as the state’s attorney general. As President Barack Obama’s Task Force on 21^st Century Policing has recommended, using prosecutors farther removed from the pressures of local politics could go a long ways toward building trust between communities—especially  those of color— and law enforcement.

While a burgeoning movement has brought the need for reform into the spotlight, very little concrete change has been accomplished so far. Bills mandating the use of special prosecutors in officer-involved killings have been introduced in 15 state legislatures; to date, none have become law.

As things currently stand, fewer than one in five African Americans trust the criminal justice system to “properly investigate” police-involved deaths. Successful prosecution of the accused cops is extremely rare, and only 12.5 percent of these cases are handled independently. Isn’t it about time for these things to change?

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