Calls For Special Prosecutors in Ferguson and NYC Came to Late

WASHINGTON - Dec. 8, 2014 - PRLog -- Now that grand juries in Ferguson, MI and New York City have refused to indict white police officers who killed black men in broad daylight, major newspapers, pundits and politicians, and influential newspapers are calling for the appointment of special prosecutors in cases where there is significant evidence that police officers have committed serious crimes.

        But their calls come too late to undo the major damages these two rulings have created, and proponents should have applied to the courts since in both cases judges had the power to help defuse the situations, and remove what many believe are major conflicts of interest, says an expert who helped get the special prosecutors who avoided a major constitutional crisis by forcing former president Richard Nixon to resign.

        “It’s not enough to make public statements about the need for a special prosecutor in such cases, nor to simply ask the prosecutor or the governor to have one appointed,” says public interest law professor John Banzhaf, who also got a court order for the appointment of a special prosecutor to investigate Debategate.

        If a timely application to the appropriate judge had been made, the public outrage which greeted these two decisions might have been avoided or at least mitigated.  Moreover, even if the judges were reluctant to make such a move, the application itself would have forced the prosecutors to publicly defend their decisions not to recuse themselves - something which would have put more pressure on them to do so, says Banzhaf.

        The legal authority of judges  - and not just governors - to appoint special prosecutors to avoid even the appearance of a possible conflict of interest or impropriety seems quite clear, notes Banzhaf.

        As recently as 2004, the Missouri Court of Appeals reaffirmed the power of a judge to appoint a special prosecutor, stating that: "the power to appoint a special prosecutor is not limited by the statutory grounds specified in Section 56.110; rather, it is a power inherent in the court, to be exercised in the court's sound discretion, when for any reason, the regular prosecutor is disqualified."  Other recent court rulings have recognized that Missouri judges do have the power to appoint special prosecutors in appropriate cases.

        Here, a petition filed before the judge could have argued that a special prosecutor was necessary to prevent the appearance of a possible conflict of interest, and insure that there is no bias.

        It could have noted that the prosecutor's father was killed by a black person; his brother, uncle and cousins all worked for the St. Louis police department; the prosecutor took the unusual step of criticizing the Governor's decision to put the state highway patrol, under the command of a black officer, in charge of crowd control; his involvement with a support group for the families of slain officers called BackStoppers; his possible involvement in the much-criticized decision to release a video of the victim allegedly engaged in a robbery, and also for other possible leaks; etc.

        "While any one - or even two or three - of these factors might not provide sufficient justification for a judge to appoint an independent special prosecutor, the whole may well be greater than the sum of its individual parts in this situation, and the cumulative effect is overwhelming" says Banzhaf.

        A court can and should take judicial notice of the controversy this MI case has generated, and the many responsible legislators, leaders of major organizations, and others who believed that such an appointment was necessary not only to avoid the appearance of a possible conflict, but also to help insure that the results of the investigation and possible prosecution would be accepted by most fair minded people.   The parallels to the George  Zimmerman case, where special prosecutors were brought in, is clear, says Banzhaf.

        Just last year New York’s highest court ruled in a situation in which a judge was asked to appoint a special prosecutor.  The court held that “the appearance of impropriety itself is a ground for disqualification” of the prosecuting attorney and for a judge to appoint a special prosecutor.

        The opinion added that such an appointment might be justified “when the appearance is such as to discourage public confidence in our government and the system of law to which it is dedicated ”because the public at large are entitled to protection against the appearance of impropriety.”

        It also said “an appearance of impropriety may arise when the record provides an objective basis to question whether the prosecutor is exercising pretrial prosecutorial discretion in an evenhanded manner, based on the merits of the case or other legitimate prosecutorial concerns. Here, while we do not find that any actual impropriety occurred, there is an unacceptably great appearance of impropriety.”

        More people are now beginning to understand that a prosecutor presented with evidence of a serious crime by a police officer faces an automatic built-in conflict of interest which is bound to create at least the appearance of impropriety because he must work so closely with members of the police department.

        If he is perceived as being too tough on one or more officers, he risks the wrath of many of them, and they are in a position to hurt him seriously by testifying badly, “forgetting,” etc.

        If, on the other hand, he is perceived - for this as well as other reasons - as not being tough enough, the reaction by many in the community may be like that experienced as a result of the Ferguson and NYC choke-hold decisions.

        Yes, perhaps there should be new laws encouraging if not mandating the appointment of a special prosecutor from outside the county if there is evidence of a serious crime by a police officer.

        But it would have been much better if people had realized this before, and made an appropriate application to a judge for the appointment of special prosecutors in Ferguson and Staten Island, says Banzhaf, who called for such an appointment back in August.