Legislation Calling for Independent Police Prosecutor is Unnecessary

By Marc Debbaudt

California Assembly Bill 86, which was introduced this year, seeks to remove District Attorney Offices from reviewing police shootings and deciding if criminal charges should be issued. This 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.

In the words of famed 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 politics, public opinion or make a social statement. And it does not mean 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.

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. It is widely known among participants in the criminal justice system, if not the public, that: “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.”  Heien v. North Carolina (2014) 574 US ___ , WL 7010684.

Unfortunately, AB 86 accepts the false notion that local 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, claims “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.”

Hogwash!

In the Los Angeles District Attorney’s Office there are nearly 1000 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.  Highly respected  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, and instead of making the just decision up front whether to file or not, will instead choose to let a jury decide if an officer’s action was criminal.  The logical response is what we see by 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 is not a problem that rises to the level of indicting the system and requiring fundamental change. Not to minimize the disturbing nature of legitimate police misconduct when it occurs, it is a statistical anomaly given the number of police officers and crimes they investigate every day, every year, across this nation. That the media sensationalizes the few examples, 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, but creates a new one on top of a system that is already operating at a high level of integrity. Nothing is solved, just politics and money thrown at an exaggerated problem creating a whole new opportunity for unexpected consequences and collateral damage.

The Assembly has put aside AB 86 for this year. Let’s hope the bill is killed forever. The proposed law is not just dangerous for police and residents, it’s unnecessary because the Attorney General already has the authority to investigate and prosecute any case in which they believe criminal conduct has occurred.

Marc Debbaudt is President of the Association of Deputy District Attorneys. 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 Deputy District Attorneys.