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Thursday, December 04, 2014

Prosecuting police--the role of the grand-jury pool

Alexi Lahav (U Conn) shares this op-ed by Ilaan Maazel suggesting reforms in policing police misconduct, including body cams (while recognizing they are not a panacea) and having all prosecutions handled by an independent special prosecutor rather than the local DA. In a Slate piece in September, Kate Levine suggested something similar (she specifically wanted to turn all cases over to federal prosecutors), which I questioned.

But in light of recent events, I am beginning to come around to the idea that Maazel and Levine are pushing. Moreover, I am coming around not only to the idea of requiring a special state prosecutor or the State AG, which Levine suggested and which I thought might work, but to the idea of making everything federal.

The focus in both the Brown and Garner cases has been on the respective local prosecutors and their supposed failures to be sufficiently aggressive. And the argument generally is that local prosecutors, by necessity, are always too close to the police.

But perhaps we also should consider the effect of the composition of a state as opposed to federal grand jury. Maybe part of the problem involves the likely decisions or actions of body drawn entirely from people in St. Louis County or Staten Island/Richmond County who are immersed in the local passions and politics; maybe a federal body drawn from the entire Eastern District of New York or Eastern District of Missouri, less immersed in those local passions and politics, can process things differently. Of course, it may not matter given modern media--everyone knows the details of high-profile cases such as these. But perhaps someone from Montauk or Cape Girardeau has a bit more distance from the events, a bit more distance from the local police, and thus a greater willingness to find a basis to pursue a criminal case.

Posted by Howard Wasserman on December 4, 2014 at 05:41 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Law and Politics | Permalink

Comments

"less immersed in those local passions and politics"

interesting how what originally was understood as a feature (jury attuned to local conditions important, at times to act differently than the state might believe warranted) is now at times seen as a sort of bug

Posted by: Joe | Dec 6, 2014 11:41:31 AM

Dan, do you know what their indictment rate is?
All I've seen is the federal figures.

Posted by: Barry | Dec 5, 2014 6:18:20 PM

In the areas I'm most familiar with, federal jury pools are considered (at least by defense attorneys) to be more sympathetic to police than city, or even suburban, pools. They tend to be more conservative, more white, and less urban. The EDNY might be a bit atypical in that respect, but I suspect that Suffolk County jurors wouldn't be a whole lot different in demographics or perspective than Staten Island jurors.

Posted by: Dan Filler | Dec 5, 2014 10:23:59 AM

"The focus in both the Brown and Garner cases has been on the respective local prosecutors and their supposed failures to be sufficiently aggressive. And the argument generally is that local prosecutors, by necessity, are always too close to the police."

It was recently pointed out that at the federal level at least, grand juries indict targets 99.99% of the time.

If a grand jury does not indict a police officer, it's due to the prosecutor, pure and simple.

And the prosecutor works with and for the police (and vice versa), pure and simple.

Posted by: Barry | Dec 5, 2014 6:58:05 AM

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