Why We Need Independent Prosecutors

04/27/2015 03:04 pm ET | Updated Jun 27, 2015

There is something rotten in the state of South Carolina. Officer Michael Slager abrogated his duty to uphold the peace by shooting and killing Walter Scott, an unarmed black man whose only infraction was running away when pulled over for a broken taillight. On top of that, Slager betrayed the public trust when he covered his own hide by fabricating a story that he was acting in self-defense. Undoubtedly he would have been taken at his word had a bystander not recorded the incident, which is why law enforcement officers must wear body cameras, as I discussed before.

However, I am encouraged by the fact that the officer has actually been indicted, unlike Officer Daniel Pantaleo in New York. I am also encouraged that the South Carolina Supreme Court has appointed a special prosecutor, Judge Clifton B. Newman, a former prosecutor outside of Charleston, to oversee the Scott case. Because, given that Newman is an outsider to North Charleston's law enforcement, there is little to indicate a conflict of interest on his part. And as a judge, he is not likely to have ambition to run for higher office, so he does not have the pressure to please the electorate or other interests. (In South Carolina, judges are not directly elected but confirmed by the state legislature.)

The appointment of a special prosecutor was the right thing to do because, simply put, using the default prosecutors for police brutality cases presents a major conflict of interest. Prosecutors handling criminal cases must have a close relationship with law enforcement officers, in order to have their cooperation in sharing evidence and testifying. What's more, prosecutors are generally elected officials, and the endorsement or opposition by unions representing law enforcement officers may be a major factor in whether the prosecutor will win re-election.

I realize you may be skeptical of this argument. However, I would point to Staten Island District Attorney and congressional candidate Daniel Donovan, and his handling of the Eric Garner case, as evidence. Because it defies logic that an unbiased prosecutor and grand jury would not indict Officer Pantaleo despite the unambiguous video of Garner's death.

Instead, evidence suggests that the non-indictment was orchestrated by Donovan because of a major conflict of interest. Consider that, in addition to needing the cooperation of the police on a daily basis, Donovan has received major support from the unions representing law enforcement officers. In his 2011 re-election campaign for DA, Donovan was endorsed by the following unions:

  • Patrolmen's Benevolent Association
  • Detectives' Endowment Association
  • Sergeants Benevolent Association
  • Captains Endowment Association
  • Lieutenants Benevolent Association
  • Correction Officers Benevolent Association
  • Bridge and Tunnels Superior Officers Council
  • Bridge and Tunnel Officers Benevolent Association
  • Fraternal Order of Police

The above laundry list of endorsements all came on the same day. During the endorsement event, PBA president Patrick Lynch (who is not related to me) went so far as to say, "Dan Donovan understands the importance of working as a partner with police in the streets."

These unions donated their time and money: a query of the New York State campaign finance database revealed that since 2006 Donovan has received about $60,000 in donations from unions representing workers in law enforcement. Besides the aforementioned unions, the state Court Clerk's Association and Court Officers Association have also been generous to him.

In other words, Dan Donovan's political career has been made possible by representatives for every New York law enforcement officer short of McGruff the Crime Dog.

So while overseeing the Garner case, Donovan was cognizant of the fact that each of these unions helped put him in office, and would continue to do so if he remained on their good side. No doubt he also had on his mind his future political ambitions, as I suspect he was considering running for congress well before his January announcement. How, then, can we expect Donovan, or many other people, to be objective when tasked with prosecuting his benefactor, or "partner," as Lynch put it? Especially when said partner has given you almost $60,000.

And it looks like the decision not to indict paid off. To the surprise of no one, Donovan has been endorsed in his congressional bid by the following unions:

  • Captains Endowment Association
  • Lieutenants Benevolent Association
  • Bridge & Tunnel Officers Benevolent Association
  • New York State Court Officers Association
  • Port Authority Police Benevolent Association
  • Patrolmen's Benevolent Association
  • Detective's Endowment Association
  • Retired Sergeant's Benevolent Association
  • New York State Troopers Police Benevolent Association

It makes perfect sense: why wouldn't they show appreciation to the man who let one of their own off the hook?

Meanwhile, Eric Garner and his family could not turn out hundreds of people to the polls. Nor did they ever have a PAC that could shell out tens of thousands of dollars. So Donovan might have been, to put it mildly, less than objective when overseeing the grand jury that chose not to indict Pantaleo.

Outside of the Eric Garner case, some folks questioned the objectivity of prosecutor Robert P. McCulloch in the Michael Brown case. McCulloch's father was a police officer who was shot and killed by a black man when the future prosecutor was only twelve years old. In addition, his brother, nephew, and cousin were all St. Louis law enforcement officers, and his mother was a clerk for the police. McCulloch himself intended to become a police officer, but his dream was dashed when he lost part of his leg to cancer. So perhaps McCulloch would lean toward favoring a police officer over someone who looks like the guy who killed his father.

And there is some evidence to suggest a conflict of interest by South Carolina's Ninth Circuit Solicitor Scarlett A. Wilson, who would otherwise handle the Scott case. Wilson, who initially was appointed solicitor when the incumbent died, was first elected to the office in 2008 by winning a contentious Republican primary and having no Democratic challenger. In the competitive primary, Wilson was endorsed by Charleston County Sheriff Al Cannon, as posted on her campaign site. Cannon noted that he rarely made endorsements, but did so for Wilson because he felt so strongly that she needed to stay in office. He added that he conversed more with Wilson than any previous solicitor. Wilson's website also boasts her endorsement from former Sheriff Robert Minter, who called her a "strong solicitor" and "the right person for the job." Minter wrote this in a letter to the editor defending Wilson's decision not to indict a man who shot and killed his unarmed roommate, because she concluded it was in self-defense.

Given that, what might happen if, say, Cannon and/or Minter served as character witnesses or wrote character letters for Michael Slager?

So clearly the South Carolina Supreme Court did the right thing by assigning a special prosecutor to the Walter Scott case. Appointing special prosecutors is a common practice in South Carolina, lest anyone think this was an unconventional move done for political reasons. And if South Carolina can do it, then the rest of the nation can do the same.

This practice should not only be an available tool for law enforcement, but also mandatory in police brutality cases. Because if we leave it to the discretion of the courts then inevitably some judge somewhere will decide not to assign a special prosecutor for a self-serving reason, particularly if he or she is an elected judge. Or a judge might not assign one simply because he or she woke up on the wrong side of the bed that morning.

A special prosecutor should be someone with deep experience and high regard in the legal system. Criteria to determine this would include things like assessments by local bar associations. The prosecutor should also not exhibit any future political ambition, and perhaps even be someone who would come out of retirement for just this case. For example, Robert Morgenthau would make a good special prosecutor in New York.

The fact of the matter is that, thanks in large part to ubiquitous cellphone cameras, the past few months and years have seen a major erosion in public trust of police officers and the criminal justice system. (Black folks were way ahead of the curve on that one.) There is major work to be done to restore faith in the process, and assigning independent prosecutors to handle police brutality cases is a big step in the right direction.