By Bob Egelko
Monday, December 22, 2014

The furor over the non-indictments of white police officers for killing unarmed black men in Missouri and New York has led to widespread calls for states to take such cases away from local district attorneys, who work with police every day and often depend on their support for re-election.

“You absolutely need independent prosecutors,” said Barbara Arnwine, president of the Lawyers’ Committee for Civil Rights.

Many advocacy groups and legal commentators have called for a new system of reviewing potential criminal cases against police officers. They argue that a special prosecutor, perhaps affiliated with the state attorney general’s office, would be insulated enough from police and politics to weigh the issues objectively and make decisions the public would trust.

California Attorney General Kamala Harris sees it differently.

“I don’t think it would be good public policy to take the discretion from elected district attorneys,” Harris, formerly San Francisco’s district attorney, said in an interview. “I don’t think there’s an inherent conflict. … Where there are abuses, we have designed the system to address them.”

Harris said the system has built-in safeguards: Locally elected prosecutors are accountable to their communities, and when a district attorney is not following the law or has a conflict of interest, the attorney general has the power to come in and take over the case.

Missouri, N.Y. cases

The debate arises from decisions by local prosecutors in both states to refer the homicides — the fatal shooting of 18-year-old Michael Brown after a confrontation with an officer in Ferguson, Mo., and the choke-hold death of 43-year-old Eric Garner in Staten Island, N.Y., after police tried to arrest him for selling untaxed cigarettes — to grand juries rather than filing charges themselves. Contrary to standard practice, neither prosecutor asked the grand jury for an indictment, and none was issued.

The U.S. Justice Department is investigating both incidents and could seek federal indictments on civil rights charges. The department is also looking into overall police practices in Ferguson and could demand court-supervised reforms, as it has done in other cities.

But critics of the current procedures say they fail to hold individual officers accountable.

“The system we have in place now is not serving the public and is not serving justice because of a conflict of interest,” said LaDoris Cordell, a former Santa Clara County judge who is now San Jose’s independent police auditor. “The decision about whether to prosecute police officers should be taken away from prosecutors who work hand in hand, on a daily basis, with police officers.”

An outside prosecutor, either part of the attorney general’s office or chosen by that office, would “eliminate the conflict and even the appearance of conflict,” Cordell said.

Natasha Minsker, legislative director for the American Civil Liberties Union in California, recalled the outcry after the fatal shooting of unarmed passenger Oscar Grant by BART police Officer Johannes Mehserle on an Oakland transit platform in 2009.

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