In the words of Supreme Court Justice Robert Jackson, “a prosecutor should seek justice” when making a decision to file charges. Seeking justice does not mean filing charges when injustice would result. It does not mean filing charges to satisfy political interests or public opinion, or to make a social statement.
And it does not mean that a District Attorney’s Office should abandon its role as gatekeeper of justice, and pass the buck by filing charges to let the jury decide.
But in California, a bill introduced this year would do exactly that.
Assembly Bill 86 seeks to remove District Attorneys' offices from reviewing police shootings, and from deciding whether criminal charges should be issued. The bill reflects a fundamental misunderstanding of the role of a prosecutor and the administration of justice.
It is bad public policy and, indeed, would undermine the pursuit of justice and threaten the safety of police officers and residents throughout California. To my knowledge, it's the first such legislative measure in the country.
In the Los Angeles County District Attorney’s Office, the Justice System Integrity Division evaluates each civilian death that results from interaction with police. Their standard for filing charges is whether there is legally sufficient and admissible evidence to prove the defendant is guilty of the charged offenses. The filing prosecutor must conclude that a reasonable fact-finder (either a judge or jury) would convict the defendant given the most plausible, reasonably foreseeable defense inherent in the prosecution evidence. This decision is then approved by the District Attorney.
Participants in our criminal justice system operate under an assumption most recently supported by the Supreme Court in Heien v North Carolina:
To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.
Unfortunately, AB 86 accepts the false notion that district attorneys cannot be entrusted with evaluating cases in which a civilian dies after interaction with the police.
Assemblyman Kevin McCarty, who authored the bill, has claimed:
There is skepticism in the current process where local DA’s investigate cops they work most closely with. To foster better transparency in the process, a common sense reform would be to have an independent review process by the Department of Justice to investigate police shootings where a civilian death occurs.
In the Los Angeles District Attorney’s Office there are nearly 1,000 deputy district attorneys. No one is investigating “cops they work most closely with.” That just doesn’t happen in my experience, and this office would not tolerate that kind of obvious bias.
Although the bill’s author claims he only seeks to ensure “the community trusts that fatalities are thoroughly reviewed” and is not seeking the prosecution of more officers, the reality of his goal is different.
The people who mistrust district attorney reviews will be no more trusting of an independent prosecutor’s reviews unless officers are continually prosecuted.
These critics aren’t upset at the review process; they are upset that more police officers aren’t prosecuted. One just has to listen to the news to hear countless demands in the aftermath of recent police shootings that the officers should be charged and that it should be left to the “jury to decide” if the action was criminal.
Events in Baltimore illustrate why prosecutions driven by public fervor are terrible public policy. In announcing her decision to prosecute six officers a scant 24 hours after receiving the case reports, Baltimore States Attorney Marilyn Mosby made clear she was reacting to perceived public pressure when she stated, “To the people of Baltimore and the demonstrators across America: I heard your call for no justice, no peace.”
Mosby’s decision to prosecute based upon public pressure has created dangerous conditions for law enforcement professionals. Baltimore Police Commissioner Anthony Batts told the City Council, “If I get out of my car and make a stop for a reasonable suspicion that leads to probable cause but I make a mistake on it, will I be arrested? They pull up to a scene and another officer has done something that they don’t know, it may be illegal, will they be arrested for it? Those are things they are asking.”
As a result, Baltimore police have stopped actively policing. Arrests in Baltimore have dropped 50 percent in recent weeks, but not because crime is dropping. In fact, with 38 homicides, this was the deadliest month in Baltimore in fifteen years.
The Peace Officers Research Association of California got it right when they stated:
District Attorneys are elected by their counties to handle these types of investigations. District Attorneys have made decisions for years, and have overseen difficult cases that have been scrutinized heavily by the media and public. The concern that there would be a conflict of interest between a District Attorney and officers they may work with is unfounded. District Attorneys routinely prosecute peace officers when they believe there is sufficient evidence to prove a crime beyond a reasonable doubt. It is a District Attorney’s ethical duty to ensure the fair administration of justice, without regard to who is being investigated.”
AB 86 is bad public policy, plain and simple.
It will set in motion a chain of events where police know that their actions will be scrutinized by an “independent” prosecutor, a position created by political pressure to go after the police. This “independent prosecutor” won’t be independent at all, but will face public pressure to charge. Instead of making the just decision up front whether to file or not, the independent prosecutor will instead choose to let a jury decide if an officer’s action was criminal.
The logical response is what we see from Baltimore police officers: Avoid any situation that may remotely involve the potential of use of force and a potential subsequent prosecution.
Finally, the “skepticism” surrounding police shooting does not merit an approach that requires fundamental change in the system. This is not to minimize the disturbing nature of legitimate police misconduct when it occurs, but such misconduct is a statistical anomaly, given the number of police officers and the number of crimes they investigate every day, every year, across this nation.
The media sensationalizes the few examples, but the actual numbers demonstrate that the system is working at virtual perfection and correcting itself when the anomalies occur. Creating an additional independent prosecutor bureaucracy to address anomalies does not cure the problem. It creates a new one on top of a system that is already operating at a high level of integrity.
In fact, politics and money thrown at an exaggerated problem will create a new opportunity for unexpected consequences and collateral damage.
The Assembly has put aside AB 86 for this year—and it is expected to be taken up in January 2016 for the second year of the legislative session.
It would be preferable to let it die.
The proposed law is not just dangerous for police and residents: It’s unnecessary. California's Attorney General, like her counterparts elsewhere, already has the authority to investigate and prosecute any case in which criminal conduct is believed to have occurred.
Marc Debbaudt is President of the Association of Los Angeles Deputy District Attorneys. He can be contacted at firstname.lastname@example.org. The view and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ADDA, which represents nearly 1,000 Los Angeles Deputy District Attorneys. He welcomes comments from readers.