The United States is alone in the world in electing its prosecutors. This means every decision a prosecutor makes is a political one—doubly so when their names are in the headlines. Following the indictments of police officers in Baltimore and Cincinnati this year, there was widespread praise from activists and pundits for the prosecutors who held cops to task over the deaths of unarmed black men Freddie Gray and Samuel Dubose.
But those who saw the indictments as a step toward justice may have forgotten that fundamental tenet of American society: Everything is political. And to please both sides—the activists who seek indictments following nearly every police shooting, and agents of law enforcement who often believe they are infallible—investigations by independent prosecutors are essential when emotions are running high.
For many in Ferguson and surrounding cities in St. Louis County, prosecutor Bob McCulloch is a case in point. The son of a police officer slain by a black suspect in the line of duty, McCulloch famously removed himself from the grand jury process in the case of Michael Brown and Darren Wilson by not recommending charges to jurors and instead allowing them to weigh the evidence themselves in determining Wilson's fate.
On the night the grand jury's decision not to indict Officer Wilson was announced in November, many activists blamed McCulloch for letting the cop walk free.
University of Missouri Law Professor Ben Trachtenberg doesn't like the way McCulloch handled the case either, but for different reasons. In a recent essay for the Missouri Law Review, Trachtenberg argues that McCulloch's decision to have the grand jury determine whether to indict Wilson wasn't one made out of desire for transparency, but out of fear.
"I don't have any beef with McCulloch for not indicting Wilson," Trachtenberg tells VICE. "My problem is that he ducked behind the grand jury."
In a system where 95 percent of prosecutors are white, and some of them use legal maneuvering to keep blacks from serving on juries, elections can provide voters with great power to change elements of the criminal justice regime, according to Trachtenberg.
Sometimes, a prosecutor's constituents are clearly on the side of law enforcement. In Staten Island, despite a massive public outcry over a grand jury's decision not to indict the cop who choked Eric Garner to death, the Republican prosecutor who oversaw that deliberation whipped his Democratic opponent in a congressional election. (The House district Staten Island falls in is easily the most conservative in New York City.)
"You sent a message to President Obama, to Nancy Pelosi and, yes, even to Bill de Blasio, that their policies are wrong for our nation," Donovan told his supporters following the victory.
Elsewhere, prosecutors have chosen to take a hard line against police in controversial deaths. The most recent came in Cincinnati, where Republican Prosecutor Joe Deters oversaw a grand jury that indicted former University of Cincinnati Officer Ray Tensing in the death of Samuel Dubose. (Some legal analysts and observers have said Deters's remark about Tensing being "like a murderer" were inappropriate.) But the warm fuzzy feeling on the part of activists and those who have worked tirelessly to expose police brutality belied an uncomfortable truth: While the video of Dubose's death looks terrible, proving Tensing willfully murdered the father of 13 in a court of law is an entirely different matter.
Perhaps more famously, Baltimore Prosecutor Marilyn Mosby went all-out when she indicted six police officers on charges that included "depraved-heart murder" for the death of 25-year-old Freddie Gray in May. The three cops from that group charged with lesser crimes may get off, depending on your reading of the Baltimore City statute that provides the rules for arresting someone armed with a switchblade knife. (The legality of Gray's arrest may hinge on the blade in question, but attorneys are a long way from discussing such minutiae in court. The future of the three others charged with more heinous crimes that led to Gray's death is far from certain.)
Larry Kobilinsky, a professor at the John Jay College of Criminal Justice in Manhattan, says Mosby's actions represent the most glaring example of politics pervading prosecutorial discretion. Baltimore wanted an indictment, so Mosby handed one down.
"Prosecutors want to be elected, right?" he says, noting the popularity of Mosby's push for an indictment. "I think in Baltimore, you have a real push of politics into the prosecutor's office."
Both Deters and Mosby ultimately relied on grand juries to reach true bills of indictment, recommending the cops in each case be charged. This falls in line with a high success rate of prosecutors who push jurors toward a conclusion, according to Trachtenberg. (Hence the saying a prosecutor could get a grand jury to "indict a ham sandwich.") Nearly every time a prosecutor believes someone should be indicted for a crime, a grand jury goes along. In McCulloch's case, the rule cut the opposite way: He didn't explicitly recommend that the grand jury indict Wilson, and therefore they didn't.
Deters and Mosby made decisions that not only aligned with nationwide calls for the cops responsible to be indicted, but clamoring on the part of the substantial black communities in both cities.
For all prosecutors, though, police shootings represent a no-win situation of sorts, according to Jeffrey Fagan, an expert on criminal justice at Columbia Law School.
In the case of Wilson, when a grand jury fails to indict, it is "likely to reinforce cynicism in those communities where victims of police shootings come from," Fagan says. Meanwhile, "for police, their sense of alienation from political entities that are more inclined to criticize them than praise them will also be reinforced."
In his essay, Trachtenberg makes the argument that McCulloch should have recognized the public mistrusted his ability to impartially provide evidence to the Ferguson grand jury and let another prosecutor take over. Trachtenberg notes the back and forth between McCulloch and Missouri Governor Jay Nixon, who had the power to remove McCulloch from the case and appoint a special prosecutor. At one point during this public ritual of blame-shifting, McCulloch urged Nixon to "stand up, man."
But according to Trachtenberg, justice would not have been served if Wilson had been indicted. That might have bolstered the community's trust in the prosecutor, but even the rage on display in Ferguson following the grand jury announcement wasn't enough to prompt the electoral action necessary to kick McCulloch out of office. Efforts to defeat him in a November election by supporting a write-in candidate failed miserably and McCulloch, who ran unopposed, took 95 percent of the vote.
So where could an independent prosecutor come from? Kobilinsky argues that a prosecutor from a nearby county could be just as mistrusted as McCulloch himself. "Everybody knows everybody," in legal circles, as Kobilinsky puts it.
The only answer, Kobilinsky and Fagan agree, comes in one of the recently announced policy positions of the Black Lives Matter movement: independent investigations.
"Independent prosecutors may be the only workable solution," Fagan says. "Whether standing or ad hoc for each case, there has to be independence to insulate against the politics."
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