Arkady
President
Putting aside the details of particular recent killings by police, there's a general structural problem that gives rise to the sense that justice isn't being served. Our system relies on the adversarial process. There's supposed to be a prosecutor who is intent on getting an indictment and then a conviction, and a defense lawyer who is intent on preventing those things. With an ordinary defendant, that system works. The prejudices of the prosecutor line up with his intended role in the system, so as long as he doesn't do something crooked (like hiding or forging evidence), there's some confidence that a jury will hear the best case that can be made in each direction, maximizing the probability of a just verdict. But what happens in cases where the prosecutor's prejudices are at odds with his intended role in the system?
This comes up most clearly where the prosecutor has a personal stake in the outcome. For example, we wouldn't trust a prosecutor to bring a good case if the defendant was his own son. We'd expect him to recuse himself so a more neutral prosecutor could take the helm. But there are also systematic prejudices for prosecutors, which aren't solved if one public prosecutor steps aside and another steps in -- for example, when the defendant is a political figure who may hold the keys to the prosecutor's professional future, or when the defendant is a police officer, with whom the prosecutor usually works closely on the same side. In the case of police officers, it will be damned tough for any prosecutor to set aside his friendly relationships with the defendant or with the defendant's close colleagues, and to ignore the difficulty the prosecutor is likely to have if these officers he has to work with in the future see him as having screwed over one of their brothers.
It strikes me that there could be a fairly simple solution to this. You could set up a system whereby certain qualified organizations that might usually find themselves providing defense lawyers (like the NAACP or the ACLU), could petition the court to replace the public prosecutor with a private one, which they could nominate, and which would need to be acceptable to the victim's family. These would be paid for the same way public defenders are, meaning the pay would be so low that it would discourage the organizations from pushing for private prosecutors, other than in cases where there's a strong reason to doubt the job a public one will do (since most of the cost would likely be out-of-pocket for them). An administrative judge could be asked to rule on that, with guidance set up to permit the private prosecutor in any case where there would be an appearance of conflict of interest for any public prosecutor, including cases against police officers.
This would free up public prosecutors from tpotentially having to sour their good working relationships with the police or other public officials. And it would give outcomes more public credibility, since there wouldn't be the impression that a prosecutor was intentionally under-performing in order to avoid an indictment or conviction.
Picture how this would have worked in the Darren Wilson case. Someone like the NAACP would have petitioned the administrative law judge for a private prosecutor, and they would have put forward the names of several qualified lawyers viewed as sympathetic to the black community. Possibly other organizations would do the same. The judge would have been compelled to grant the motion, based on clear guidance acknowledging the appearance of a conflict when prosecutors are called on to go after cops, and he'd have selected a prosecutor who would have been seen by the community as either impartial or even hostile to Wilson. If, after that, the Grand Jury had looked at the case that the prosecutor put together, and there had been a non-indictment, there would have been considerably less public outrage, since at least it wouldn't have seemed like the case had been fixed by the prosecution. Similarly, if there had been an indictment, but it had come back with a ruling that the accusations hadn't been proven beyond a reasonable doubt, the public would have understood this was despite the prosecution doing its level best to make the strongest case possible.
I don't see why this wouldn't work. Just as we can have private lawyers handle the defense, we should be able to have private lawyers handle the prosecution. It would beat the current system, where you can end up having the prosecution and the defense essentially cooperating to avoid an indictment or a conviction.
This comes up most clearly where the prosecutor has a personal stake in the outcome. For example, we wouldn't trust a prosecutor to bring a good case if the defendant was his own son. We'd expect him to recuse himself so a more neutral prosecutor could take the helm. But there are also systematic prejudices for prosecutors, which aren't solved if one public prosecutor steps aside and another steps in -- for example, when the defendant is a political figure who may hold the keys to the prosecutor's professional future, or when the defendant is a police officer, with whom the prosecutor usually works closely on the same side. In the case of police officers, it will be damned tough for any prosecutor to set aside his friendly relationships with the defendant or with the defendant's close colleagues, and to ignore the difficulty the prosecutor is likely to have if these officers he has to work with in the future see him as having screwed over one of their brothers.
It strikes me that there could be a fairly simple solution to this. You could set up a system whereby certain qualified organizations that might usually find themselves providing defense lawyers (like the NAACP or the ACLU), could petition the court to replace the public prosecutor with a private one, which they could nominate, and which would need to be acceptable to the victim's family. These would be paid for the same way public defenders are, meaning the pay would be so low that it would discourage the organizations from pushing for private prosecutors, other than in cases where there's a strong reason to doubt the job a public one will do (since most of the cost would likely be out-of-pocket for them). An administrative judge could be asked to rule on that, with guidance set up to permit the private prosecutor in any case where there would be an appearance of conflict of interest for any public prosecutor, including cases against police officers.
This would free up public prosecutors from tpotentially having to sour their good working relationships with the police or other public officials. And it would give outcomes more public credibility, since there wouldn't be the impression that a prosecutor was intentionally under-performing in order to avoid an indictment or conviction.
Picture how this would have worked in the Darren Wilson case. Someone like the NAACP would have petitioned the administrative law judge for a private prosecutor, and they would have put forward the names of several qualified lawyers viewed as sympathetic to the black community. Possibly other organizations would do the same. The judge would have been compelled to grant the motion, based on clear guidance acknowledging the appearance of a conflict when prosecutors are called on to go after cops, and he'd have selected a prosecutor who would have been seen by the community as either impartial or even hostile to Wilson. If, after that, the Grand Jury had looked at the case that the prosecutor put together, and there had been a non-indictment, there would have been considerably less public outrage, since at least it wouldn't have seemed like the case had been fixed by the prosecution. Similarly, if there had been an indictment, but it had come back with a ruling that the accusations hadn't been proven beyond a reasonable doubt, the public would have understood this was despite the prosecution doing its level best to make the strongest case possible.
I don't see why this wouldn't work. Just as we can have private lawyers handle the defense, we should be able to have private lawyers handle the prosecution. It would beat the current system, where you can end up having the prosecution and the defense essentially cooperating to avoid an indictment or a conviction.
