The appearance of justice requires that special prosecutors be appointed to present cases of alleged police misconduct to grand juries.
Local prosecutors confront a conflict of interest.
On the one hand, they depend on the police to arrest suspects, to collect evidence and to testify in the prosecution of crimes. The two have a symbiotic professional relationship.
On the other hand, prosecutors are dutybound to enforce the law without fear or favor. That duty is most urgent when police misconduct is alleged. Justice Louis D. Brandeis lectured in Olmstead v. United States: “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
The prosecutor’s conflict creates at least the appearance of bias in favor of the police. That conflict undermined public confidence in the decisions of the grand juries in St. Louis County, Missouri, and Staten Island, New York, to decline indictments of police officers responsible for the deaths of Michael Brown and Eric Garner.
“[J]ustice must satisfy the appearance of justice,” the U.S. Supreme Court instructed in Offutt v. United States.
The court thus held in In re Murchison that a judge may not both sit as a one-man grand jury and then adjudicate contempt citations issued against witnesses who refused to answer questions he had propounded.
By statute, federal judges generally must recuse themselves in circumstances where their impartiality might be reasonably questioned.
The truism that a man cannot be a judge in his own cause traces back several centuries to Dr. Bonham’s Case (1610).
Congress addressed the attorney general’s conflict of interest between his political loyalty to the president and his obligaton to enforce the law against the president’s cabinet or party bigwigs in Title VI of the Ethics in Government Act of 1978. Generally speaking, it provided for the appointment of an independent counsel by a three-judge court to investigate or prosecute crimes by high level government officials or officers of the president’s principal national campaign committee.
The Supreme Court upheld the constitutionality of independent counsels in Morrison v. Olson, but Congress allowed the statute to lapse on June 30, 1999, for partisan political reasons.
The attorney general, however, has issued regulations that provide for the appointment of a special counsel to prosecute cases where the Department of Justice confronts a conflict of interest.
A model statute for state legislatures to consider should contain the following elements:
* A special prosecutor should be appointed to investigate and prosecute cases of credible alleged crimes by local police officers involving homicide or other serious felonies.
* The appointments should be made by three members of the State Supreme Court at the request of the State Attorney General.
* A maximum of two of the three Supreme Court members should enjoy the same party affiliation.
* The special prosecutor should be authorized to retain independent investigators if local police officers resist a thorough investigation to protect one of their own.
* The special prosecutor should be required to explain in writing any decision to decline prosecution. All evidence presented to the grand jury should be published except to the extent necessary to protect privacy or public safety. The crime victim should be permitted an opportunity to respond to the special prosecutor’s explanation in writing. And the special prosecutor should be required to answer the victim’s response.
* If a police officer is indicted but is acquitted at trial, his attorneys’ fees should be paid by the state unless the special prosecutor demonstrates to the court that the prosecution was “substantially justified.”
Public confidence in the administration of justice is too important to tolerate the inherent conflict of interest in local prosecutors investigating or prosecuting members of their professional family.
For more information about Bruce Fein, visit brucefeinlaw.
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