Who Shouldn't Prosecute the Police

• Author: Kate Levine
• Position: Acting Assistant Professor of Lawyering, NYU School of Law
• Pages: 1447-1496

Who Shouldn’t Prosecute the Police Kate Levine * ABSTRACT: The job of investigating and prosecuting police officers who commit crimes falls on local prosecutors, as it has in the wake of a number of highly public killings of unarmed African-Americans since Michael Brown died in August 2014. Although prosecutors officially represent “the people,” there is no group more closely linked to prosecutors than the officers they work with daily. This Article focuses on the undertheorized but critically important role that conflict-of-interest law plays in supporting the now-popular conclusion that local prosecutors should not handle cases against police suspects. Surprisingly, scholars have paid little attention to the policies and practices of local district attorneys who are tasked with investigating and bringing charges against officers who commit crimes. This Article argues that a structural conflict of interest arises when local prosecutors are given the discretion and responsibility to investigate and lead cases against the police. This Article, the first in a series that examines police as suspects and defendants, theorizes the disqualification of legal actors from their traditional roles by drawing out a number of themes from conflict-of-interest law: that the criminal justice system must appear just, and that judges and attorneys alike must not have a personal stake in the outcome of litigation. This Article then lays out a full account of the personal and professional interconnectedness between local prosecutors and the police. Then, using conflict-of-interest theory, it details how asking local prosecutors to become adversaries of their closest professional allies raises process-oriented and democratic legitimacy issues, particularly in our racially charged criminal justice system. This Article concludes that the conflict of interest between local prosecutors and police–defendants is so anathema to our system of justice that it requires removal in every case where an officer is accused of committing a crime. * Acting Assistant Professor of Lawyering, NYU School of Law. Many thanks to Miriam Baer, Rachel Barkow, Erin Collins, Samuel Estreicher, Nicholas Frayn, Trevor Gardner, Bennett Gershman, Bernard Harcourt, Roderick Hills, Peter Joy, Paul Pineau, Daniel Richman, Anna Roberts, Ronald Rychlak, Andrew Schaffer, Carol Steiker, Jocelyn Simonson, Anthony Thompson, Howard Wasserman, and the participants in the NYU Lawyering Scholarship Colloquium and the SEALS Junior Scholars Works-in-Progress Workshop for helpful conversations and comments on drafts. Thanks also to the editors of the Iowa Law Review . Micah Doak and Benjamin Mejia provided excellent research assistance. A4_LEVINE.DOCX (DO NOT DELETE) 4/20/2016 10:49 AM 1448 IOWA LAW REVIEW [Vol. 101:1447 Finally, it turns to the question of who should prosecute the police and proposes several potential solutions. I. INTRODUCTION ........................................................................... 1449 II. A THEORY OF CONFLICT-OF-INTEREST LAW ................................ 1452 A. U NDERTHEORIZED P ROSECUTORIAL C ONFLICTS ...................... 1453 B. A PPEARANCE OF J USTICE ........................................................ 1456 C. A CTUAL AND P OSSIBLE B IAS ................................................... 1460 D. A N A CTOR ’ S I NABILITY TO D ETERMINE H ER O WN C ONFLICT ... 1462 III. DESCRIBING THE CONFLICT WHEN LOCAL DISTRICT ATTORNEYS MUST INVESTIGATE THE POLICE ................................................. 1464 A. I NHERENT C ONFLICTS W HEN L OCAL D ISTRICT A TTORNEYS M UST P ROSECUTE P OLICE O FFICERS ....................................... 1465 1. Prosecutorial Reliance on Law Enforcement in Civilian Defendant Cases ............................................ 1465 2. Prosecuting the Allies ................................................. 1470 3. Prosecuting the Police May Affect an Assistant District Attorney’s Career ........................................... 1471 B. S YSTEMIC C ONFLICTS , B IAS , S ECRECY , AND A CCOUNTABILITY .................................................................. 1472 IV. LOCAL DISTRICT ATTORNEYS HAVE AN UNWAIVABLE CONFLICT OF INTEREST WHEN INVESTIGATING AND PROSECUTING POLICE ........................................................................................ 1477 A. L OCAL P ROSECUTIONS OF P OLICE –D EFENDANTS D O N OT S ATISFY THE A PPEARANCE OF J USTICE ..................................... 1478 B. L OCAL P ROSECUTORS H AVE AN A CTUAL C ONFLICT OF I NTEREST W HEN P OLICE A RE D EFENDANTS ............................. 1483 C. A D ISTRICT A TTORNEY W ILL H AVE D IFFICULTY D ETERMINING H ER C ONFLICT IN P OLICE C ASES ............................................ 1485 V. POTENTIAL SOLUTIONS .............................................................. 1487 A. S TATE AND F EDERAL P ROSECUTOR A LTERNATIVES TO L OCAL D ISTRICT A TTORNEYS ............................................................ 1488 1. Removal to a Different County’s District Attorney ... 1488 2. Removing All Police Cases to the Attorney General’s Office .......................................................... 1489 3. Appoint Federal Prosecutors to Investigate Law Enforcement Crimes ................................................... 1491 B. S HOULD O UTSIDERS P ROSECUTE THE P OLICE ? ........................ 1494 VI. CONCLUSION .............................................................................. 1496 A4_LEVINE.DOCX (DO NOT DELETE) 4/20/2016 10:49 AM 2016] WHO SHOULDN’T PROSECUTE THE POLICE 1449 I. INTRODUCTION The prosecutor’s role in modern criminal law is among the most heavily theorized. Do prosecutors have too much power 1 What is the appropriate balance between plea bargaining and trials 2 What is a prosecutor’s motivation in a given case or set of cases 3 Do prosecutors bring too harsh charges? Too few charges 4 These are just a few of the questions about prosecutors that scholars contemplate with rigor and complexity. Yet, prosecutorial conflicts are largely absent from this analysis. 5 In the following pages, I use conflict-of-interest law to conduct a novel examination of a local prosecutor’s conflicting values when she must charge and lead cases against the police in her own jurisdiction. The nonindictments after police officers choked Eric Garner to death and fatally shot Michael Brown have forced many to once again confront questions about police violence and criminality. As part of that conversation, politicians are starting to focus on the dysfunction of our local, adversarial justice system as it relates to police killings of civilians. 6 1. See Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law , 61 STAN. L. REV. 869, 871 (2009) (“One need not be an expert in separation-of-powers theory to know that combining [many] powers in a single actor [(the prosecutor)] can lead to gross abuses.”); Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers , 101 YALE L.J. 1681, 1698 (1992) (noting “the extent to which enhanced prosecutorial power would fill the judicial vacuum created by the [sentencing] guidelines”); William J. Stuntz, The Pathological Politics of Criminal Law , 100 MICH. L. REV. 505, 594 (2001) (noting one “dangerous prosecutorial power: the power to stack charges, to charge a large number of overlapping crimes for a single course of conduct”). 2. Compare George Fisher, Plea Bargaining’s Triumph , 109 YALE L.J. 857, 859 (2000) (critiquing too much plea bargaining), with Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract , 101 YALE L.J. 1909, 1910 (1992) (“Not only is the practice [of plea bargaining] widespread, but participants generally approve of it.”). 3. See, e.g. , Josh Bowers, Punishing the Innocent , 156 U. PA. L. REV. 1117, 1128 (2008) (“[P]rosecutors carry mindsets of ‘nondefeat’—aversions to dismissal that they keep in all cases, but that are most pronounced in cases against recidivists. In this sense, prosecutors consistently function as conviction maximizers even if they only rarely operate as sentence maximizers.” (emphasis omitted) (footnote omitted)); Steven Alan Reiss, Prosecutorial Intent in Constitutional Criminal Procedure , 135 U. PA. L. REV. 1365, 1366 (1987) (noting the importance of prosecutorial intent in constitutional claims). 4. See, e.g. , Stuntz, supra note 1, at 579–82; Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff , 55 STAN. L. REV. 29, 33 (2002) (“A particularly noxious form of dishonesty is overcharging by prosecutors—the filing of charges with the expectation that defendants will trade excess charges for a guilty plea.”). 5. See infra Part II.A. 6. See Exec. Order No. 147, A Special Prosecutor to Investigate and Prosecute All Matters Relating to the Deaths of Civilians Caused by Law Enforcement Officers (N.Y. July 29, 2015); see also Erin Durkin, State Pols Propose Bill to Create Special Prosecutor for Police Killing Cases , N.Y. DAILY NEWS (Dec. 4, 2014, 2:55 PM), http://www.nydailynews.com/blogs/dailypolitics/state-pols-propose-special-prosecutor-police-killings-blog-entry-1.2033542; Ben Kamisar, Majority in Survey Backs Special Prosecutors in Police Shootings , HILL: BRIEFING ROOM (Jan. 19, 2015, 2:47 PM), http://the hill.com/blogs/blog-briefing-room/229937-majority-in-survey-backs-special-prosecutors-in-police- A4_LEVINE.DOCX (DO NOT DELETE) 4/20/2016 10:49 AM 1450 IOWA LAW REVIEW [Vol. 101:1447 A number of scholars have also commented on whether local prosecutors should bring charges and lead cases against their closest professional allies. 7 These commentaries have called the police–prosecutor relationship too close, describing it as a threat to prosecutorial legitimacy, and stated that prosecutors who work hand-in-hand with police officers cannot “honestly be expected to be impartial and aggressive.” 8 Such...