THE BLOG
09/14/2014 08:03 pm ET Updated Nov 14, 2014

The Red Flag Flies High Again on Prosecution in Brown Slaying

A little over a year ago the debate was fierce over whether Florida state prosecutor Angela "Tough on Crime" Corey assigned to prosecute George Zimmerman for killing Trayvon Martin would dump the case. There was good reason for the debate. Zimmerman was not a police officer. But he was seen as the next best or worst thing to it since he had close ties with law enforcement and was a one-time neighborhood watch patrol officer. This automatically bestowed on him the shield that cops have from any charges of misconduct especially in cases where the victims of their misconduct are young African Americans or Hispanics.

The rest of course is history. Zimmerman walked in part because a jury believed his fairy tale that he was the victim of a Martin attack. But in larger part because prosecutors put up an inept, feeble, and bumbling prosecution that again reconfirmed the nightmare fear that the rare times that cops are prosecuted for deadly force and the victims look like Martin bad things almost always happen.

A year later the red flag that flew high with prosecutors in cop cases is flying even higher in the Michael Brown slaying. The instant that the call on whether to prosecute Brown's killer, Ferguson police officer, Darren Wilson would be made by the hard-nosed St. Louis County prosecutor Robert McCullough who has a well-worn record of refusal to prosecute any officers who have been involved in dubious, even outrageous killings of mostly unarmed black suspects, the screams were loud for a special prosecutor. This hasn't happened. Missouri Governor Jay Nixon emphatically said no. This could be subject to change but it would take the near miracle of smoking-gun evidence that Brown was killed with absolutely no justification or provocation and the dogged refusal of McCullough to prosecute.

The reason for McCullough's foot drag on or outright refusal to prosecute Wilson strikes to the heart of why he and other prosecutors either won't prosecute officers or invariably blow the case against them the rare times they do. More than a decade ago the U.S. Civil Rights Commission in its landmark study," Who's Guarding the Guardians," of the conduct of police and prosecutors in civil rights cases, told exactly why. It cited the traditionally close relationship between district or county attorneys and police officers, who usually work together to prosecute criminals, the difficulties they have in convincing grand juries and trial juries that a police officer did not merely make an understandable mistake, but committed a crime; and the lack of information about cases that could be prosecuted or systems for reviewing possibly prosecutable cases.

These towering barriers have been glaringly evident in the Brown slaying. Wilson was put on pro forma paid leave, the Ferguson police chief released potentially damaging information about an alleged Brown heist at a convenience store, rallies were held and hundreds of thousands of dollars were raised in Wilson's defense. And in the flood of news stories about the killing, Wilson has been depicted as a hardworking, model cop. There is also no ironclad standard of what is or isn't an acceptable use of force in police misconduct cases. It often comes down to a judgment call by the officer. In the Rodney King beating case in 1992 in which four LAPD officers stood trial, defense attorneys painted King as the aggressor and claimed that the level of force used against him was justified. This pattern has been evident in a number of celebrated cases since then.

There's yet another horrific fact about these cases. That's the call for a special prosecutor who will take the case out of local police friendly prosecutors and can be independent, and objective. Corey was a good example of where even that can go terribly wrong. She was the special prosecutor appointed to prosecute Zimmerman. But again the U.S. Civil Rights Commission noted that the appointment of a special prosecutor does not guarantee that police officers accused of wrongdoing will be prosecuted and ultimately punished. In many cases, the special prosecutor is another county or district attorney selected from a neighboring jurisdiction that may be subject to the same biases and partiality as the original prosecutor. The Commission cites numerous examples where special prosecutors have been appointed in high profile cases to eliminate real or perceived bias by local prosecutors for the defendants yet the prosecution has still failed to get a conviction.

In October, a grand jury supposedly will make the call whether to indict Wilson on charges in the Brown killing. Barring a dramatic development in the case, it will be up to McCullough to ask for an indictment and to supply evidence that will support an indictment. This is usually a mere formality and prosecutors get the green light to go forward. But this can't happen if no case is presented in the first place, and given McCullough's track record and the past history of these cases, the odds are long that Wilson won't spend a day in criminal court. This is why the red flag flies high again on prosecution in the Brown slaying.

Earl Ofari Hutchinson is an author and political analyst. He is a frequent MSNBC contributor. He is an associate editor of New America Media. He is a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the host of the weekly Hutchinson Report on KTYM 1460 AM Radio Los Angeles and KPFK-Radio and the Pacifica Network.