The problem isn’t hard to explain or fathom. Local prosecutors work hand in hand with the cops. They need each other, even if they don’t necessarily like or respect each other, and both know it. So when a cop does wrong, there is invariably an inherent conflict in expecting the local prosecutor to treat her as he would any other defendant. And it’s not just the one dirty cop, as cops come in packs, and the brethren get rather protective of each other, so the prosecutor faces a police force that might not appreciate that she’s just doing her job.
There are alternatives, of course. There are other prosecutorial offices who can step in when a conflict arises. There are cities and states with special prosecutors to address conflicts in general and cops in particular. And, in fairness, there are local prosecutors who have the integrity to do what the law requires, even if it means making enemies on the force.
Joshua Michtom, an assistant public defender at the Connecticut Office of the Chief Public Defender, offers an interesting alternative.
If mayors, police chiefs and legislatures are serious about instilling real faith in these communities, they should hand over full control of investigations to the one group of lawyers used to treating the police in an adversarial fashion, all of them experts in police rules and procedures: public defenders.
It might be a gross overstatement to call public defenders “experts in police rules and procedures,” but it’s true that they’re used to treating the police in an adversarial fashion.
As a result, our relationship with the police tends to be adversarial. This is not to say that we can’t be cordial and respectful, but there is an understanding that defenders are there to challenge and scrutinize the police, not work with them. Unlike prosecutors, we almost never have to worry about calling officers as witnesses for our clients. And unlike state police or departments from neighboring locales, we will never find ourselves collaborating with the police officers on a case, so we don’t have to worry about whether they will work with us.
That public defenders (though curiously only public defenders, as opposed to private criminal defense lawyers who often have prosecutorial experience before switching to the dark side, and often have hugely greater experience in the law than the vast majority of PDs doing their three year stint) are unlikely to find themselves conflicted is certainly a strong point.
However, is being adversarial toward the accused any better when the accused is a cop than any other defendant? Isn’t it true that we expect prosecutors to exercise discretion, to not just “hate” our clients because they’re presumed evil and guilty, and to seek a just outcome rather than a notch in the belt from another conviction? Does this suddenly cease to be valued when the prosecutor is a PD and the perp is a cop?
But being adversarial is only one point. There are others. Do PDs have the skillset of prosecutors? Do they know how to handle an initial investigation as opposed to a responsive investigation? Do they know how to run a grand jury, how to charge in an indictment, how to use their power to coerce people into saying what they need them to say even when they don’t want to? Can they handle the Reid Technique to get a cop to confess?
And then there’s one aspect of this idea that raises a surprising problem: Is there really a prosecutor buried within passionate public defenders yearning to come out and put people in prison? Not all people, but the “right” people?
It’s been an ongoing curiosity with the spate of “progressive prosecutors” that people who one would think are dedicated to fighting the power are now the power themselves, having been elected to a position that requires them to prosecute and, at least in some instances, imprison defendants. Some are even defendants of color. Is this really what they want to do with their lives? Have they always been prosecutors deep within, just burning for the opportunity to slam the cell door shut when it feels right and good?
They say inside every reformer is an authoritarian waiting to come out. Is this the moment in time when public defenders reveal themselves to be authoritarian prosecutors?
*Tuesday Talk rules apply.