The front page of this past Sunday’s San Francisco Chronicle (December 28, 2014) bore the headline, “Civil Rights Leaders Seek More Black Prosecutors.” The premise of the article is that if more prosecutors were Black, more police officers who illegally kill people would be prosecuted. While increasing the racial diversity of our nation’s prosecuting attorneys’ offices is a very important goal, it is not the answer to the problem of our nation’s failure to prosecute police officers who break the law. Our nation’s and our state’s highest prosecuting attorneys — United States Attorney General Eric Holder and California Attorney General Kamala Harris — are both African-American. We have not seen any increase in the number of police officers who are prosecuted for criminal misconduct under either of those Attorneys General. As a practical matter, prosecutors work hand-in-glove with police officers, and are not going to be willing to prosecute their most important witnesses.
If either Michael Brown or Eric Garner were killed by a regular citizen, there would have been no grand jury to decide whether or not there was probable cause to issue a criminal indictment against the citizen. Any regular person would have been indicted. The prosecuting attorneys in those cases instead held secret grand juries, where there is no adversary questioning any of the witnesses, and the public is kept in the dark about what questions are asked of witnesses and how the juries are instructed about the law.
One solution is to appoint an independent special prosecutor — with experience in the constitutional law issues involving police officers’ use of deadly force — to investigate cases where the police kill people and prosecute officers who have engaged in criminal misconduct. Until then, the only people who prosecute police officers for illegally killing members of our community are people like our clients, who bring civil rights wrongful death cases as Private Attorneys General, to enforce the constitutional rights we all cherish, including the Fourth Amendment right to be free from unreasonable and excessive force by law enforcement.