Academic journal article Emory Law Journal

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

Academic journal article Emory Law Journal

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

Article excerpt


A recent pattem 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 officerinvolved 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 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 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 policesuspects. 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. …

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