After a police officer in South Bend, Ind., shot and killed Eric Jack Logan last month, contentious meetings between the public and Mayor Pete Buttigieg showed that there is often a serious lack of faith that allegations of police misconduct will be fairly investigated. We can fix this: Public defenders, not law enforcement officials, should be responsible for determining whether police misconduct occurred.
The skepticism about the way investigations are currently conducted makes sense: Police departments’ internal investigations are reliably lenient. The New York Police Department, for example, took nearly 2,500 reports of biased policing from residents since 2015 and found not a single one credible. Prosecutors and state police, the two other entities most likely to carry out an investigation of police misconduct, often decline to press charges even when video evidence seems to leave little doubt that an officer’s conduct has violated departmental policy.
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Not surprisingly, communities of color, who are disproportionately exposed to police violence and misconduct, have a much less favorable view of the police than the population overall, and little belief that misdeeds will be revealed or punished. In a 2017 Pew Research poll, 64 percent of Americans said they had generally warm feelings toward the police. But for black Americans it was just 30 percent. If mayors, police chiefs and legislatures are serious about instilling real faith in these communities, they should hand over full control of investigations to the one group of lawyers used to treating the police in an adversarial fashion, all of them experts in police rules and procedures: public defenders.
Unlike prosecutors, who often work hand-in-hand with the police to make a case for conviction, defenders are used to questioning the stories police officers tell. For example, in a case of mine many years ago, the prosecutor and his police witness seemed confident that their evidence was unassailable: Two officers had walked up to the car my client was sitting in, looked in the windows, and seen what looked like cocaine. What never occurred to them, although it was easy enough for me to find out, was that their walk from the police car to my client’s car took them from one city to another. When they arrived, they were out of their jurisdiction and had no authority to make an arrest. It seems minor, but it exemplifies the different approach that defenders must take to protect our clients’ interests — and the rigor we are accustomed to bringing to our investigation of everything the police say and do.
A good-thought provoking article. I wonder how the juvenile prison guard case would have turned out if the Federal Public Defender’s office was prosecuting instead of defending.
6 comments:
Along the same vein, who should investigate prosecutorial misconduct?
OPR is either lenient or doesn't have any sense of priority or deadlines to fill.
Defense counsel are usually tied by mostly voluntary discovery rules on the government.
The courts are so used to review evidence in the light light most favorable to the gov't that all they have to do is lie.
An truly independent police agency should be formed by Miami Dade, with the sole jurisdiction to investigate and pursue law enforcement officers. Don't do away with internal affairs, just have a truly independent agency to do its own investigation as well.
Or, as I have written before, amend 1001 to make it a specific crime with a min man to file any false report, even locally or testify falsely under oath in a state criminal proceeding or investigation. That will give the feds some teeth to go after the biggest problem with cops, thier lying and lying to cover up their fellow officers lies. Mandate that prosecutors refer any such cases to the feds and provide a liason to recieve complaints from criminal defense attorneys.
This is completely contrary to what a public defender's office should be. The job of a PD is to protect the constitutional rights of those charged with crimes. PDs offices are not inherently anti-police, and (contrary to what most prosecutors think) they are not pro-criminal.
Just like prosecutors have designated units to prosecute political corruption, there is no reason that they can't have units that are designed to investigate police misconduct.
Appoint a Special Prosecutor?
Team up an AUSA and a AFPD - best of both worlds. I unjustly sat in federal prison for over four months after Secret Service Agent Germano (who was detailed to Miami FBI's JTTF) lied in her Criminal Complaint about me, AUSA Anton used the Grand Jury to indict me unjustly, and, after Ferrer realized that Agent Germano had lied and Anton had made a career-limiting move, Ferrer finally moved and Senior Judge Zloch so ordered overturning of the indictment and my release. A boatload of AFPD's from the Middle and Southern Districts rode their respective AUSA colleagues to flush out Agent Germano's lies.
It is absurd to expect satisfactory results from civil remedies such as Bivens, etc. from what is a schizophrenic system (the USA in the form of a Federal judge deciding whether the USA was wrong using all of the resources of the USA versus an individual).
Not sure how you practitioners soldier through this Don Quixotesque profession every day - you put Sisyphus to shame ....
Rumpole? Mr. Smith? Aaron Sorkin? The Ghost of John McCain?
In fact, I would like Chuck Lorre and Steven Bochco to get together and make this into a show.
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