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.