In wake of Garner case, new plan to investigate cops who kill takes shape

As a growing chorus of bipartisan critics urges the appointment of special prosecutors to investigate killings of citizens by police, New York's attorney general has asked for statewide control of investigations involving actions of police.

Seth Wenig/AP
A protester carries a sign inscribed with, 'I can't breathe,' during a protest in response to the grand jury's decision in the Eric Garner case in Times Square in New York.

As nationwide protests continue in the wake of the grand jury decisions in the cases of Eric Garner and Michael Brown, a growing chorus of critics from both ends of the political spectrum has begun to urge the appointment of independent prosecutors to investigate all killings of citizens at the hands of police.

And the reforms being called for do not fit neatly into the country’s often-predictable partisan divides.

Indeed, even a number of conservatives have said such outside investigators may be needed to probe police killings, which have sparked often violent demonstrations and what some are calling a “crisis of confidence” in the justice system.

At the same time, however, some liberal-leaning prosecutors are objecting to the idea, saying they were entrusted to do a job by voters, and should be able to continue to do so, even when it comes to investigating police officers under their jurisdiction.

While the debate has been ongoing the past week, on Monday New York Attorney General Eric Schneiderman (D) asked Gov. Andrew Cuomo (D) to issue a temporary executive order, allowing his statewide office to take control of local investigations involving the actions of police. He was joined by a number of New York Democratic officials and community leaders, who endorsed the idea.

"The horrible events surrounding the death of Eric Garner have revealed a deep crisis of confidence in some of the fundamental elements of our criminal justice system," Mr. Schneiderman said in a statement. "Nothing could be more critical for both the public and the police officers who work tirelessly to keep our communities safe than acting immediately to restore trust."

Governor Cuomo’s office has said it is reviewing the attorney general’s proposal as it plans a broader “top to bottom review” of the system, seeking input from “criminal justice experts, community stakeholders, and police, prosecutorial and judicial representatives.”

According to many observers, local prosecutors and police are virtually day-to-day colleagues in the nation’s justice systems: Cops provide the evidence prosecutors must use to make a case, they are key witnesses in criminal trials, and they often make up the security details for state and district attorneys. This in part makes grand jury indictments and prosecutions against police officers very rare, experts say.

“What’s invariably happened is, they don’t prosecute local police officers because of their relationship and brotherhood – but we shouldn’t expect them to in the first place,” says Jason Leventhal, a former Staten Island assistant district attorney who now represents clients bringing civil rights cases against the New York Police Department

“So whether it’s a special prosecutor, the attorney general’s office, or another agency created by the executive branch to investigate and prosecute local police officers – that would be the best of both worlds,” continues Mr. Leventhal, now a partner with the law firm Leventhal & Klein in New York. “It would allow a local prosecutor to continue to work closely with police officers to keep communities safe, while allowing independent prosecutors to make sure that local police officers didn’t cross the line in dealing with the community.”

The idea also has gained unexpected traction from members of the NYPD. Sgt. Ed Mullins, president of the Sergeants Benevolent Association, a registered Republican and critic of the administration of New York Mayor Bill de Blasio, said a district attorney not affiliated with a jurisdiction could create more “integrity” in the criminal justice system.

While he emphasized that he agreed with the decision reached by the Staten Island grand jury and supported the work of the local district attorney, “I believe that’s a practice that should be considered and looked at, because it brings about a stronger public trust,” Sergeant Mullins told the New York Observer. “What’s not to be gained by it?”

According to studies, US police officers kill approximately 1,000 citizens per year in the line of duty. On average, four officers are indicted for gun-related deaths that occurred while they were on duty every year, according to a study by Bowling Green State University in Ohio.

In April, Wisconsin Gov. Scott Walker, one of the nation’s most conservative Republican chief executives, signed into law the country’s first such reform – before the cases of Mr. Garner and Mr. Brown brought the issue to the fore.  

The first-in-the-nation law requires at least two investigators from an outside agency to probe all deaths of citizens at the hands of police. It also requires these investigations to be released to the public if criminal charges are not filed against the police officers involved.

In New York, however, Brooklyn District Attorney Ken Thompson, a black, liberal-leaning Democratic prosecutor who defiantly announced this summer that his office would no longer prosecute many of the low level marijuana arrests made by the NYPD, arguing that they unfairly affected minority communities, said he was “adamantly opposed” to the reforms proposed by Schneiderman on Monday.

“The people of Brooklyn have voted for their District Attorney to keep them safe from all crimes, including those of police brutality,” Mr. Thompson said in a statement Monday. “The Attorney General’s proposal would override their choice – and that should not happen.”

It is not surprising that local prosecutors would bristle if their impartiality – and integrity – is questioned, experts say, and few would ever agree to relinquishing control of their local turf.

“People in power want to keep their power,” says Leventhal, the former Staten Island prosecutor. “The power to either prosecute police officers or insulate police officers from prosecution is a power they want to hold to themselves.” 

But other former prosecutors caution that independent investigations, too, “may not be the panacea many envision.”

“[To] assume that special prosecutors will be independent is a mistake,” said Delores Jones-Brown, a former New Jersey prosecutor and a professor at the John Jay College Center on Race, Crime and Justice in Manhattan, to The New York Times last week. “While they may not routinely rely on the police agency where the accused officer works, as do local district attorneys, they might still carry an us-versus-them mindset.”

“The stereotype of non-white men as criminal and dangerous or an unsympathetic victim, is as much to blame for the failure to indict officers Wilson and Pantaleo as is any bias or ineptitude on the part of prosecutors presenting the cases to the grand jurors,” Professor Jones-Brown said.

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