Restoring Public Confidence in the Criminal Justice System: Policing Prosecutions When Prosecutors Prosecute Police

• Jurisdiction: United States,Federal
• Publication year: 2018
• Citation: Vol. 67 No. 4

Restoring Public Confidence in the Criminal Justice System: Policing Prosecutions When Prosecutors Prosecute Police

Caleb J. Robertson

RESTORING PUBLIC CONFIDENCE IN THE CRIMINAL JUSTICE SYSTEM: POLICING PROSECUTIONS WHEN PROSECUTORS PROSECUTE POLICE

Abstract

Recent high-profile cases of police violence that have ended with non-indictments of the involved officers have increased public scrutiny of criminal justice systems' approach to police-suspects. This Comment focuses on the assertion made by many that local prosecutors cannot fairly prosecute their law enforcement counterparts because of unfair bias. This Comment puts to the side the issue of whether such bias actually exists and instead focuses on the perception that these biases exist, arguing that systemic changes are needed to address the appearance of injustice they cause. The perception of bias degrades the appearance of justice to the public and police alike, endangering the legitimacy of the legal system; for that reason, we ought to presumptively disqualify local prosecutors from handling cases involving police-suspects. Instead, an independent special prosecutor, an outsider appointed by the state attorney general, or a civilian review board should handle such cases.

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Introduction..............................................................................................855

I. Failure to Satisfy the Appearance of Justice..........................857

A. Procedural Justice, Legitimacy, and the Appearance of Justice........................................................................................ 857
B. Conflict-of-interest Law and the Appearance of Justice ........... 860

1. The Appearance of Impropriety Standard Should Apply to Prosecutors.......................................................................... 861
2. The Apparent Conflict When Local Prosecutors Prosecute Police ................................................................................... 865

C. Differential Treatment: The Grand Jury ................................... 869

1. The Function of the Grand Jury .......................................... 869
2. The Role of the Prosecutor in the Grand Jury..................... 871
3. Comparing Grand Juries: Police vs. Civilian Suspects ...... 874

D. Race and the Appearance of Justice .......................................... 877

II. Appointing the Special Prosecutor............................................879

A. Narrowing Alternatives ............................................................. 881

1. Other Prosecutors ............................................................... 881
2. Civilian Review Boards ....................................................... 883

B. Framework for Appointing Special Prosecutors ....................... 883

1. What Conditions Trigger Appointment?.............................. 884
2. Logistics of Appointment ..................................................... 885
3. Powers, Responsibilities, and Oversight............................. 885

Conclusion..................................................................................................886

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Introduction

A recent pattern of high-profile non-indictments of police officers involved in the deaths of unarmed black Americans has led to renewed scrutiny of how police-suspects are treated by the criminal justice system, and has caused many to call for the appointment of independent special prosecutors to investigate cases of officer-involved fatalities and uses of force.¹ In the 2015-2016 legislative sessions, for example, fifteen state legislatures considered measures that would require the appointment of an independent special prosecutor to investigate officer-involved fatalities, yet all fifteen proposals failed to pass into law.² Today, only Maine and Connecticut have enacted legislation requiring appointment of special prosecutors to handle officer-involved fatalities.³

Those most opposed to this reform appear to be local prosecutors.⁴ Nebraska offers a particularly acute example of local prosecutor resistance. Until 2010, Nebraska required special prosecutors to investigate all officer-involved fatalities.⁵ In 2010, following vigorous campaigning efforts by Omaha County prosecutor Don Kleine, Nebraska's legislature voted to abolish the rule.⁶ According to the Guardian, Nebraska police officers killed nine

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individuals in 2015.⁷ Kleine oversaw four of these clearances, more than any other district attorney in the country that year.⁸ Kleine's justification for abolishing the rule typifies the most common arguments local prosecutors make in favor of retaining control over cases involving police-suspects: (1) that prosecutors' professional obligations ensure they will treat police-suspects fairly and (2) that requiring special prosecutors in these cases improperly wrests control from local officials elected by the communities they serve.⁹

Not all prosecutors agree. Following a Staten Island grand jury's failure to return an indictment against NYPD Officer Daniel Panteleo for the death of Eric Garner,¹⁰ New York Governor Andrew Cuomo issued an executive order requiring a special prosecutor to investigate any case in which a police officer was involved in the death of an unarmed person.¹¹ The order came after New York Attorney General Eric Schneiderman and other advocates called for a measure to restore public confidence in the criminal justice system.¹²

Schneiderman's emphasis on public confidence is appropriate. As recent cases illustrate, the appearance of conflicted local prosecutors, enhanced procedural protections for police-suspects, and racial tensions shake public confidence in the outcomes of criminal proceedings against police-suspects, even if those outcomes are likely correct. This shaken public confidence illustrates the central concept of this Comment: the appearance of justice.

Justice Scalia once wrote, "Wise observers have long understood that the appearance of justice is as important as its reality."¹³ The idea that "justice must satisfy the appearance of justice" arose out of early rulings on judicial recusal,¹⁴ but the concept is especially relevant in the context of criminal prosecutions of police-suspects. Local prosecutors handling cases involving police-suspects fail to satisfy the appearance of justice because they face an

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unavoidable apparent conflict of interest in such circumstances. This failure is worsened by the differential treatment afforded police-suspects and the ubiquitous racial disparities inherent in U.S. criminal justice systems.

This Comment does not rely on any assertion of actual bias on the part of local prosecutors called on to prosecute their law enforcement counterparts. The appearance of bias and the resulting harm to the public's perception of the legitimacy of the criminal justice system supplies ample justification for the presumptive disqualification of local prosecutors from cases involving police-suspects. The first Part of this Comment describes how this appearance problem arises. To address this problem, the second Part proposes a framework for selecting an independent special prosecutor that will satisfy the appearance of justice.

I. Failure to Satisfy the Appearance of Justice

Local prosecutors handling criminal cases against their local law enforcement counterparts fails to satisfy the appearance of justice. Perceived conflicts of interest, disparate process afforded to police-suspects, and significant racial issues undermine the public's faith in local prosecutors' objectivity in cases against police.¹⁵ This Part begins with an overview of procedural justice to explain the importance of the appearance of justice in ensuring the legitimacy and functionality of the criminal justice system, especially in cases against police. Next, it considers conflict-of-interest law and its application to prosecutors, and it explains how the perception that conflicts exist arises in cases where local prosecutors handle cases against police. Then, it focuses on the differential treatment police officers receive at the grand jury stage. Finally, it discusses the importance of race issues in shaping the public perception of police prosecutions.

A. Procedural Justice, Legitimacy, and the Appearance of Justice

Appearance of fairness is essential to a functional criminal justice system. In 1990, Professor Tom Tyler used empirical evidence to show that people are more likely to comply with the law if they believe in the legitimacy of legal authorities.¹⁶ The empirical evidence cited by Professor Tyler showed the

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primary factor influencing an individual's evaluation of a legal authority's legitimacy is the individual's perception of "procedural justice."¹⁷ Procedural justice refers to the subjective perception of fair procedures, not whether those procedures are objectively fair.¹⁸ People are willing to accept unfavorable outcomes of legal proceedings if they are delivered through procedures they perceive to be fair.¹⁹ Legal authorities can therefore enhance the perceived legitimacy of their actions by employing procedures the public perceives as being fair.²⁰ Since 1990, these findings have been confirmed by numerous empirical studies.²¹ These legitimacy concerns demonstrate that the appearance of justice is more than mere pandering to the mob's sense of justice.

Procedural justice is of special importance to the prosecution and investigation of police-suspects. Any perception of bias in the investigation and prosecution of police will result in dissatisfaction with the outcome, regardless of its accuracy. For example, in Ferguson, Missouri, prosecutor Robert McCulloch's handling of the case against officer Darren Wilson tainted the outcome in the eyes of the public.²² Many called for McCulloch's recusal following his announcement that he would present the case for a grand jury to decide without making a recommendation to...