Elie Mystal’s Easy Answers


Talk To The Hand, Old Man

Over cocktails, Above The Law’s Elie Mystal explained why “the answer” to the failures of prosecution of two cops, one in Ferguson and one in Staten Island, was a special prosecutor. He had made the point in a post at ATL Redline, where he explained that a special prosecutor, and not body cams, was the solution.

The problem, he explains in earnest, is that cops and prosecutors are buddies, as they should be.

But that adversarial system breaks down when it comes to cop crime, because district attorneys and the police are friends. Note: generally speaking we want them to be friends. Prosecutors are part of law enforcement. We want prosecutors and the police to work hand-in-glove to not only catch criminals, but also bring them up on charges that stick and lead to appropriate punishment. If you don’t believe me, just watch an episode of Law and Order. Things are better when the team is pulling in the same direction.

His justification for the buddy-hood is somewhat askew.

The justice system in America is an adversarial process. Defendants, even the very worst defendants like terrorists and Dallas Cowboys, are entitled to a zealous defense. On the other side are prosecutors who are supposed to do everything within the bounds of the law and legal ethics to represent the victims and the people.

Prosecutors, of course, don’t represent the victims, and whether or not they represent the people is a dubious proposition.  The conflict arises from the fact that “the people” have as much of an interest in not prosecuting individuals who may not be guilty as the opposite.

The police present the prosecution with their perp, the guy they are certain deserves to go down, and the prosecutor should, if the wheels spin right, exercise independent judgment to determine whether the cops got the right guy.  When the prosecutor is nothing more than a cop mouthpiece, he’s not representing the people.

But that’s not Elie’s point.  His point is that there was a video of Eric Garner’s killing and still the cop didn’t get indicted.  His point is that local prosecutors who work arm in arm with the police, are too conflicted to prosecute cops. And so they did what Staten Island DA, Daniel Donovan, and St. Louis County DA, Robert McCulloch, did: sabotaged their own prosecution to assure that their respective cops would walk. And they did.

And so, he contends, the answer is a special prosecutor.

You can’t expect the Bob McCullochs of the world to zealously prosecute the police. Part of that is because McCulloch appears to be an unethical douchebag. Part of it is because 99% of the time his job is to work with the police, not against them. I thought that Missouri Governor Jay Nixon should have appointed a special prosecutor in the Darren Wilson case from the outset.

The flip side is that Elie not only supports the special prosecutor solution, but disavows the body cam:

A number of states are considering laws or amendments that would provide for special prosecutors in cases involving alleged police misconduct.

But this is what the fight needs to be about. Not body cameras. Body cameras are a red herring. Body cameras accept the premise that police are unaccountable because there isn’t enough evidence against them in cases of potential misconduct. That’s not the case. We’ve got evidence, we don’t have prosecutors willing to go to the mattresses to prosecute their law enforcement colleagues.

As I heard Elie’s explanation, between his ordering another Cuba Libre and finding the perfect nacho, I asked him if he had ever heard the name Maurice Nadjari.  He shook his head “no,” with that look on his face that reflected the pain of having to listen to an old man explain something in small words that was so old, so passé, as to suck the coolness of his cutting edge ideas right out of him.  I told him about Nadjari.

Elie started to lecture me on how old guys never wanted to try anything new and always found a problem with every new idea. I interrupted to explain George Santayana’s famous quote, as Elie used the break to suck the last of the rum from his glass.

It’s not that I’m against the special prosecutor idea. I’m all for it, but it’s not merely a matter of creating a new office with vast powers to correct the inherent conflict between prosecutors and cops. It’s handing a huge club to yet another person to start swinging wildly. New York had a Special Prosecutor, Nadjari, who was replaced by John Keenan, following the Knapp Commission, and we got rid of it.

Didn’t you know that?  Or is that the sort of thing only old men know?

So a special prosecutor is the answer?  Well, maybe.  If the law provides for enough power to take on the cops, but not enough to become an independent fiefdom where no one can take on the special prosecutor.  Or do we just pray that the guy with the biggest club doesn’t turn out to be a megalomaniac bent on controlling the world? Or . . . any of the million permutations of problems raised by every new idea that seems, from its surface gloss, like it’s the answer.

It’s hard to solve complex and intractable problems.  I don’t blame Elie for his lack of institutional memory. Young people today get bored so easily, and who can blame them for not knowing that there was a world that existed before they suddenly took interest.  It’s old, boring stuff.

But what makes no sense at all is Elie’s jettisoning body cams in the same breath. As has been said clearly, body cams aren’t the panacea that their promoters claimed they would be. But a red herring? Hardly.

What did not happen in the Eric Garner case is that his death wasn’t swept under the rug with a blithe “he attacked the officer” or “reached for his waistband” excuse. That didn’t happen because there was video.  No, it didn’t produce an indictment, but it did prevent it from being hidden behind a lie.

The assumption that there are simple solutions, Menckian solutions, may be appealing from the perspective of distance, without the limitations of experience, knowledge and recognition of how unintended consequences ruin an otherwise cool idea. But when that assumption is that there is a magic bullet that will fix a system as complex, and screwed up, as ours, it’s just flat wrong.

As the waitress placed another glass filled with amber liquid in front of Elie, whose eyes had long ago glassed over, it occurred to me that this was all pretty boring and tedious, talking about things that happened long ago, the interplay between good ideas and bad unintended consequences and the possibility that there was no magic bullet solution that would fix the problem of prosecuting cops.  When someone is looking for the answer, they don’t want to hear about all the problems with the answer. That’s such an old man thing.


20 thoughts on “Elie Mystal’s Easy Answers

  1. Piedmont

    I wonder how much of the whole “special prosecutor” thing already exists.

    In Virginia, at least, such cases are usually initially looked at by the local Commonwealth’s Attorney, and then if there seems to be more than a scintilla, handed over to another prosecutor a few counties away (traditionally, either an Independent or someone of the opposite party as the local CA). I suppose this is more on the honor system, and a more formal system (either the AG’s office or mandatory referral to a special prosecutor) is arguably better.

    And, regardless of what is decided in the whole police brutality issue, I think most prosecutors would love to have a body-cam video they could look at to 1) make their own determination, and 2) smugly show to the judge or jury while pointing out the alleged criminal act.

  2. Mark W. Bennett

    whether or not they represent the people is a dubious proposition

    Of course prosecutors represent the people: it says so right there, in the intro to “Law and Order.”

  3. Dan

    In my brief experience as a prosecutor, and slightly less brief experience as a lawyer who is not a prosecutor, district attorneys and police are not friends. Not by any stretch. At the top level, the DA, an elected official, and police unions, will have an uneasy political alliance borne of political necessity, but friends, they ain’t. The result might be the similar to if they were friends, but they ain’t friends.

    1. SHG Post author

      From my experience, it’s a hit or miss proposition. Some ADAs associate way too closely with the cool cop thing, particularly when they’re young, inexperienced and markedly uncool. Others look down on cops as muscle without brains.

      On the flip side, a lot of cops think prosecutors have no clue, sheltered in their ivory tower.

      But on the third side (and this is where I take some issue with you), they tend to find common ground when it comes to being on the same team as compared with everyone else.

      1. Dan

        Your last sentence is correct, and on the social level, hatin’ on perps and scumbags is how a young ADA might show an older cop that he’s one of the good guys too.

  4. Hal

    IANAL, so I’ve held off commenting previously.

    I saw this ACLU article on whether cops should be allowed to review the footage from their body cams before writing their reports and thought it was of interest. I understand that you don’t, as a rule post links, but thought you might wish to read it for your own edification.

    FWIW, I really enjoy your blog. A couple of weeks ago I laughed out loud when I read your comment along the lines of “I don’t always agree with Greenfield, but he is prolific”. Moments before I’d been thinking that I don’t always agree with you, but you do make me think. I haven’t kept any sort of count on how often I’ve changed my opinion because of your writing, but I’d guess it to happen more often than as a result of anyone else’s writing. Whether there’s any comfort in that, I don’t know. I’d be inclined to take it as a compliment, but IANAL.

    Best Regards,

    1. SHG Post author

      Actually, my rule is that no links are allowed, but I make occasional exceptions. I’m aware of the article and may have written about it (I can’t remember; I’m prolific, you know). But this is pretty off-topic for the post, so let’s let it go at that.

  5. John Barleycorn

    Too bad you and Elie don’t take to sitting at the bar in these establishments you frequent.

    If you had and or start to in the future (and choose the proper establishments) you and Elie could make your arguments to a wider immediate audience then pick momentary team mates to act as fans and then exercise the back parking lot in a game of make believe or something else spiced rum enhances.

    If can you get the bar tender to record the ambiance shots and you and Elie wear body cams I am thinking, with the right amber colored liquors in the editing room
    it could go for 39.99 on pay per view.

    I promise to donate 40% of of my book from the “fights” to the small a anarchist early childhood education endowment fund as long as you use my porn pay per view company, Elie can kick 40% to HaVaaaD law scholarships, and you can kick 40% to a charitable assisted living facility facility upstate.

    Pro Tip: A splash of Dr. Pepper, three lime wedges, and four fingers of spiced rum compliment a red solo cup nicely for back parking lot make believe activities.

      1. John Barleycorn

        If the “children” don’t love it the old farts will and it will be educational too…

        It could be like the MMA meets old school WWF. Find an interviewer/announcer that has Mean Gene Okerlund skills and the rest is history.

        Live a little! What could possible go wrong…

        BTW if you are worried about what you might look like in “costume” trust me even if you go with 1970’s wrestler tights you will look better than you do in a tan tweed suit.

          1. Johnny Longfellow

            I think you two should call it Stepping Outside the Confront Zone or
            Orchestrating the Jubilee.

            Heck you can even have a guest “fighters” segment and tag team events. Think of all the fun you could have once you take it on the road…and the educational spinoffs are endless. You and Elie could bring back the true spirt and intention of the zine blawg.

            I can just see it now the esteemed one faces the rowdy cheers of law student in the quad by night and elementary school children during assemblies across the nation by day when not in the back parking lot or courtroom “fighting” in a cage match.

            Having some recently gained “expertise” I think you could pull a twenty minute monthly segment off with less than ten hours of work not including the five hours or so for setting up and doing the filming.

            P.S. You over scripted your last series. Think porn esteemed one, think porn! Alistair Cooke doing extended Masterpiece Theater intros won’t cut it in 2015.

            Things will write themselves in the blawgs. Then it is time to get ready to wiggle I mean RUMMmmmBLE.

            You know you want to!

            1. John Barleycorn

              You are welcome.

              Rumor has it Elie is going pick up the esteemed one and do a helicopter with him and then body slam him on a picnic bench. Then the esteemed one recovers and goes for with a choke hold that brings Elie to his knees.


              Get your pre-sale PPV entry code for $19.95 for the inaugural spring eqinoix brawl.

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