Reports circulated Thursday morning that federal authorities won’t file charges against Darren Wilson for the killing of Michael Brown. This isn’t much of a surprise under the law; the only avenue for federal criminal charges against police is civil rights law, and it imposes a hefty standard for proving that Wilson intended to discriminate on the basis of race.
For most homicide and murder cases, the American legal system relies on local law. And while the federal government may not be able to bring charges, there’s something Congress could do to improve the local process for prosecuting cops.
On Wednesday, Rep. Hank Johnson (D-Ga.) introduced a bill to reform grand juries that deals with one of the most intractable obstacles of police accountability: the prosecutor. The Grand Jury Reform Act would compel states to appoint a special prosecutor in cases involving deadly force by police, and that prosecutor would have to present the findings of its investigation in a public proceeding before a judge to determine whether an indictment should be filed, rather than in a secret grand jury proceeding. (As with most bills of this sort, states would choose to either comply with the law or lose some federal funding.)
Taking the local prosecutor out of the equation could have a monumental impact on police brutality cases, because prosecutors are not institutionally well suited to bring cases against their own police departments.
Prosecutors are law enforcers, like police. In most every case they take, they rely on police to provide them with cases, make arrests, present evidence, and even testify at trial. If prosecutors can’t work with cops, they can’t convict anybody. And they don’t want to alienate those very same people, particularly because they often maintain personal relationships. As a result, when faced with a case charging the police, “prosecutors face enormous pressure from both police and fellow prosecutors not to go forward with such cases,” as law professor David A. Harris has explained.
For an example of this, look no further than a very recent incident in Albuquerque, New Mexico. In the wake of at least 37 police shootings since 2010 and a Justice Department investigation that found rampant constitutional violations in police use of force, Bernalillo County District Attorney Kari Brandenburg earlier this month filed murder charges against two cops for shooting dead a homeless man. Her decision to file charges without even the political cover of a grand jury was unusual, and she is already paying for that decision.
Just a day after Brandenburg announced the charges, a deputy district attorney from her office was excluded from an incident briefing after another fatal police shooting. Officers told the deputy she had a “conflict of interest” because her office had filed charges against a cop in a conversation that was recorded and released to the media.
Chief Administrative Officer Rob Perry conceded to KQRE that prosecutors have been attending these briefings for years under a written agreement between the agencies.
“What changed is they never charged anyone before, and now they have,” he said.
In addition to this conflict, prosecutors who come into office via election are even more susceptible to the influence of the police, because it is the police unions that are among their most crucial constituencies. And as should be evident from the recent union-led backlash against the New York Police Department, police unions are among the least likely to support prosecutor crackdowns on excessive force.
Of course, appointment of a special prosecutor is no guarantee of criminal charges. Ohio appointed a special prosecutor to investigate charges against the cops who shot dead John Crawford in a Wal-Mart, also this summer, but they chose not to indict.
The other issue that Johnson’s bill attempts to deal with is the public perception of bias, and distrust in a secret system they believe to be rigged. As Johnson’s bill states, “The closeness of this relationship creates public suspicion that accused police officers receive preferential consideration from grand juries when they are subject to grand jury investigations.”
In Darren Wilson’s case, for example, details have leaked out about ways in which St. Louis County Prosecutor Robert McCulloch may have misrepresented the law, demonized Michael Brown, and even put perjuring witnesses on the stand in violation of the law. But the public will likely never have a complete picture of what actually happened in that private jury proceeding over the months it played out. In fact, one of the grand jurors from that case sued seeking to lift a gag order so that he could speak publicly about a host of potential problems he perceived in the case.
And in Eric Garner’s case, we know almost nothing because of the different rules that apply to New York grand juries.
The Grand Jury Reform Act would tackle this by making these proceedings public, and before one judge rather than a panel of grand jurors. That judge would decide whether there is probable cause to file charges. Making what is effectively a grand jury proceeding public may be even more of a departure from current American procedure. But the federal bill is not the only one seeking to change that. Missouri lawmakers introduced a bill to record all of their grand jury proceedings.
Lawmakers in New York have also introduced their own bill to appoint special prosecutors in police brutality cases. And members of Congress have introduced several other bills to reform police militarization, racial profiling, and require body cameras.