When New York Attorney General Eric Schneiderman recently sought authority to investigate and prosecute cases that involve police killings of unarmed civilians, it was a watershed moment for Vincent Warren.
The executive director of the Center for Constitutional Rights, a nonprofit legal group that grew out of the civil rights movement, Warren has long called for independent investigations when there are questions about the use of lethal force by police.
Local prosecutors are ill-suited for the investigations, Warren said, because their cozy working relationships with local police pose a dangerous conflict of interest. But as he and other activists in the police accountability movement had called for change, their proposals were ignored as a solution in need of a problem.
With little support from politicians, prosecutors and the police themselves, Warren and others were largely dismissed as criminal-justice critics too eager to assume foul play when disputed police encounters weren’t adjudicated to their liking.
That perception changed with Eric Garner’s death in July after an aggressive chokehold and bodily restraint by New York City police officers.
When a Staten Island grand jury failed to indict the officers, despite troubling video footage of the incident, an eruption of nationwide protests and an erosion of public trust pushed Schneiderman to seek what Warren had called for all along.
New York Gov. Andrew Cuomo is weighing Schneiderman’s call for independent police probes. Warren is keeping his fingers crossed.
“I’m gratified that Attorney General Schneiderman has proposed a sensible solution to this long-standing problem,” Warren said recently. “Amidst all the hand-wringing and soul-searching on this issue, this is very much a step in the right direction.”
Warren said jurisdictions nationwide should consider similar measures, such as appointing special prosecutors, as questionable police shootings of black men created uncertainty about local prosecutors’ ability and willingness to police the police.
“Before special prosecutors were used at the federal level, there was a lot of state experience with them, and it’s not unusual to use some kind of model where, if there’s a perception of bias, you create a special prosecutor’s office” or provide another avenue for outside investigation, said Katy Harriger, a professor of politics and constitutional law at Wake Forest University in Winston-Salem, N.C.
John Malcolm, the director of the Edwin Meese III Center for Legal and Judicial Studies at the conservative research center the Heritage Foundation, said he was unsure what was prompting Schneiderman’s call for special investigative authority.
“If it is done to give the public confidence that such investigations are being carried out thoroughly and in an unbiased fashion, that’s a good thing,” Malcolm said. “If he’s doing it just to second-guess how a particular investigation was run, then I would say that is not a good thing.”
In the police-involved deaths of Garner and of Michael Brown in Ferguson, Mo., local prosecutors investigated the cases and presented evidence to the grand juries. The veracity of their probes, however, has come under scrutiny after the grand juries didn’t indict the police in either incident.
By 50-37 percent, most Americans think the grand jury made the right decision in the Ferguson case, according to a recent survey by the Pew Research Center and USA Today. In the Garner case, 57 percent thought the grand jury erred by not indicting police, compared with just 22 percent who thought the jurors got it right.
Public opinion about the failure to locally prosecute the Garner and Brown deaths has differed along racial lines, however.
While a majority of whites and blacks thought Garner’s death called for prosecution, 80 percent of blacks thought the grand jury erred in not charging police in Brown’s death. Sixty-four percent of whites thought no charges were warranted, Pew found.
Most blacks – 64 percent in the Brown case and 62 percent in the Garner case – say race was a major factor in the grand jury’s decisions. Only 16 percent of whites agreed in the Brown case and just 18 percent in Garner’s.
The numbers surely reflect some blacks’ long-standing perceptions of bias in the criminal justice system. It’s unclear whether outside investigations would alter that dynamic.
“The true answer is to have diversity among the attorneys in prosecutors’ offices, and for prosecutors’ offices to continue working on their relationship with the communities they serve, so that there is trust and transparency in the justice process,” said Melba Pearson, the president of the National Black Prosecutors Association.
While an independent prosecutor may be a useful tool in some circumstances, “it isn’t necessarily the answer for all police shooting cases,” she said.
Some state prosecutors already have units or individual prosecutors dedicated to public officials, including police officers, who’ve allegedly committed crimes.
“This may be a good option to expand upon,” Pearson said.
In light of the video footage of Garner’s arrest, Warren, of the Center for Constitutional Rights, said the New York prosecutors were either incompetent in presenting their case to the grand jury or simply didn’t want the officers charged.
“And if the prosecutor is giving the police officer more of the benefit of the doubt than the average criminal defendant, then that is a built-in conflict,” he said.
Malcolm, of the Heritage Foundation, said, “It all depends on how broadly you define ‘conflict of interest.’ ”
Because police arrest and question suspects, collect evidence and typically become key prosecution witnesses, they, by necessity, have a “very, very close” and trusting relationship with prosecutors, said Malcolm, a former federal prosecutor.
“But I do think that there are ethical prosecutors who don’t like police corruption or overzealous police officers who will unnecessarily harm the public, and who could do a thorough, competent and unbiased job with these investigations,” he said.
Still, Malcolm said, when the public questions – rightly or wrongly – the integrity of a grand jury ruling because of the relationship between the police and prosecutors, as in the Garner case, having the state attorney general’s office investigate “would remove that taint or at least minimize the likelihood that that taint might follow a decision not to prosecute.”
While independent investigations would improve public confidence in the criminal justice system, said Harriger of Wake Forest, they were no magic bullet and would address only one symptom of deeper problems in the system.
She said more police training on the use of force and multicultural communications would also help. Scrapping the election of local prosecutors should also be considered as a way to eliminate the appearance of conflicts, Harriger said.
“The criminal justice system is a very complex organism, and if you just poke at one part of it, you can’t really get at the problems,” she said. “You need to look at it across the board and all the ways it works.”