Who Shouldn't Prosecute the Police

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

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... (see full summary)

 
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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 Gardn er, 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.
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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. UNDERTHEORIZED PROSECUTORIAL CONFLICTS ...................... 1453
B. APPEARANCE OF JUSTICE ........................................................ 1456
C. ACTUAL AND POSSIBLE BIAS ................................................... 1460
D. AN ACTORS INABILITY TO DETERMINE HER OWN CONFLICT ... 1462
III. DESCRIBING THE CONFLICT WHEN LOCAL DISTRICT ATTORNEYS
MUST INVESTIGATE THE POLICE ................................................. 1464
A. INHERENT CONFLICTS WHEN LOCAL DISTRICT ATTORNEYS
MUST PROSECUTE POLICE OFFICERS ....................................... 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. SYSTEMIC CONFLICTS, BIAS, SECRECY, AND
ACCOUNTABILITY .................................................................. 1472
IV. LOCAL DISTRICT ATTORNEYS HAVE AN UNWAIVABLE CONFLICT
OF INTEREST WHEN INVESTIGATING AND PROSECUTING
POLICE ........................................................................................ 1477
A. LOCAL PROSECUTIONS OF POLICE–DEFENDANTS DO NOT
SATISFY THE APPEARANCE OF JUSTICE ..................................... 1478
B. LOCAL PROSECUTORS HAVE AN ACTUAL CONFLICT OF
INTEREST WHEN POLICE ARE DEFENDANTS ............................. 1483
C. A DISTRICT ATTORNEY WILL HAVE DIFFICULTY DETERMINING
HER CONFLICT IN POLICE CASES ............................................ 1485
V. POTENTIAL SOLUTIONS .............................................................. 1487
A. STATE AND FEDERAL PROSECUTOR ALTERNATIVES TO LOCAL
DISTRICT ATTORNEYS ............................................................ 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. SHOULD OUTSIDERS PROSECUTE THE POLICE? ........................ 1494
VI. CONCLUSION .............................................................................. 1496
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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 t he [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 expectat ion 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-

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