Police Enabled by Prosecutors

Hello Friends: Here is an excellent article discussing how prosecutors enable police engaged in brutality and excessive force around the country from a knowledgeable civil rights lawyer and even a judge who remarked that this system is not what the founding fathers envisioned. Furthermore, our jails are filled with thousands of innocent people who the criminal "justice" system placed there and continues to do so regularly: police misconduct we can't Breathe poster 121014

By Barry Sussman (about the author)

The American criminal-justice system currently holds the world's largest population of incarcerated people, approximately 2.3 million at last count. It is a system that has people serving life sentences for non-violent offenses and, despite celebrated anecdotal instances of occasional leniency, tends to punish even the most trivial of offenders to the nth degree.

The stunning ease with which indictments and convictions are often obtained has resulted in a flood of false imprisonments. Stories of people spending decades in prison for crimes they did not commit are reported with sickening regularity, begging the question of how prosecutors can be allowed to wield such unchecked power. Incredibly, even when prosecutors are found to have engaged in deliberate withholding of exculpatory evidence, subornation of perjury, and other acts that subvert justice, meaningful accountability is absent. Numerous courts have held that prosecutors are immune from civil liability for such acts.

This unbridled and unchecked power has caused more than one prosecutor to brag about possessing the ability to "indict a ham sandwich." Being before anything else an extension of the prosecutor, the entire grand-jury process in America is ripe for whimsical outcomes and prosecutorial abuse. To obtain an indictment, all a prosecutor must do is present their best examples of inculpatory evidence, explain to the grand jurors how this evidence satisfies the elements of the charges being sought, and let the jury vote. The burden for indictment is nowhere near "proof beyond a reasonable doubt." A prosecutor must only show that it is more likely than not that a crime has been committed.

"If the prosecutor wants an indictment and doesn't get one, something has gone horribly wrong," said Andrew D. Leipold, a University of Illinois law professor who has written critically about grand juries. "It just doesn't happen."

The ease with which prosecutors obtain indictments allows for an overall indictment rate of about 98 to 99 percent. The rate of indictment is even higher in federal court where in 2010, the most recent year for which statistics are available, approximately 162,000 criminal cases were brought before grand juries with indictments being returned in all but 11 of them.

The grand jury is essentially a rubber stamp for prosecutors. This ability to completely control the grand jury's outcome is an invitation for endemic abuse.

Packing prisons with outright innocent and largely over-sentenced, over-prosecuted prisoners is one type of prosecutorial abuse. The statistical certainty of indictment virtually assures defendants that they will be subjected to trial, where conviction rates run as high as 99.5%. This leaves many who fall victim to an overzealous prosecutor with no choice but to plead guilty, regardless of their level of culpability. The problem has become so prevalent in federal court that a federal judge, USDJ Jed Rakoff, recently penned an article entitled "Why Innocent People Plead Guilty."

Rakoff's piece begins with an interesting observation. "The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes." It goes on to describe how a prosecutor "has all the advantages."

Recent events in Ferguson, MO, and Staten Island, NY, highlight another type of unchecked prosecutorial abuse. Two grand juries, one in New York where Eric Garner was choked to death by officer Daniel Pantaleo, the other in Missouri, where Michael Brown was fatally shot by officer Darren Wilson, defied the statistical certainty of indictment and failed to return criminal indictments against offending police officers. These were both highly anticipated grand-jury results with their respective decisions coming a little more than a week apart. Indictments failed to be returned despite a wealth of inculpatory evidence, including in the Garner matter videotape of the offending officer applying an illegal chokehold while the victim states 11 times that he could not breathe. The tape later shows police officers and EMT personnel failing to make any attempt at resuscitation.

The aforementioned ease with which an indictment can be obtained, coupled with the abundance of inculpatory evidence against the offending officers, strongly suggests that a competent first-year law student vested with ordinary prosecutorial power could have succeeded in securing indictments in these cases. The failure to indict signals this was the goal of the respective prosecutors from the beginning.

While the Garner and Brown killings have brought national attention to the issue, the failure of prosecutors to properly prosecute police is not a new phenomenon and may be more widespread than earlier believed. For example, according to a study by the Houston Chronicle, grand juries in Harris County, Texas, have not indicted a police officer in a decade. Grand juries in Dallas looked at 81 possible cases of police criminality between 2008 and 2012 and indicted only one police officer.

Despite the documented reticence of prosecutors to indict police, their law-enforcement counterparts in various media accounts wrote of the recent results as if they were objective, albeit inexplicable, outcomes.

"The reality of what we saw and what the grand jury's decision is, is really what people are clamoring to understand better," New York state Senate Democratic Leader Andrea Stewart-Cousins told USA Today.

"Daily Show" comedian Jon Stewart said of the Garner grand-jury decision, "I don't know. I honestly don't know what to say."

Ekow N. Yankah, a professor at Cardozo School of Law, said, "It is hard to understand how a jury doesn't see any probable cause that a crime has been committed or is being committed when looking at that video, especially." Conservative Washington Post columnist Charles Krauthammer called the outcome in the Garner matter "totally incomprehensible."

These observers, as well as others, spoke of the grand-jury process as if it was independent of prosecutorial predetermination. When viewed against the backdrop of total prosecutorial control, the decisions not to indict in the Brown and Garner killings are rather easy to understand and point directly to prosecutorial misconduct.

One observer who seemed to have a firmer grasp on how prosecutors run grand juries when police are defendants is retired NYPD detective Frank Serpico. In a column published by the New York Daily News, Serpico wrote, "Was I surprised by the Staten Island grand jury? Of course not. When was the last time a police officer was indicted?" Serpico's piece continued, "Today, we have cops crying wolf all the time. They testify 'I was in fear of my life,' the grand jury buys it, the DA winks and nods, and there's no indictment."

Exculpating the guilty is just another type of prosecutorial abuse and misconduct that can be viewed as the flip side of convicting the innocent. It is another way for prosecutors to project their will with no meaningful oversight or accountability. The prosecutors conducting the theatrical productions posing as the grand juries examining the Brown and Garner killings should admit as much and stop pushing responsibility for the results on grand jurors. Prosecutors' failure to truthfully acknowledge their singular control of the process is not only misleading but offensive to even marginally informed observers.

Prosecutors also need to end the bifurcated system of grand-jury empanelment where ordinary targets are quickly indicted by introducing only the most damning evidence for jurors to consider, while conducting grand juries for police that are replete with exculpatory evidence. Adding insult to injury, prosecutors typically point to a fictitious duty to "seek the truth" as the reason for allowing police defendants the benefit of exculpatory evidence at their grand-jury proceedings. If all defendants were afforded this right, grand-jury indictment rates would be well below their current level of de facto statistical certainty. Prosecutors must place a higher value on equal protection and stop affording their law-enforcement counterparts outrageously disparate preferred treatment.


Barry Scott Sussman- Born and raised in New Jersey. Graduated from Rutgers University with a BA in Sociology. Graduated with a JD from the Benjamin Cardozo School of Law specializing in Federal Criminal Procedure.