Federal investigation of local police killings makes sense to many people. Eric Holder and Loretta Lynch — the current and future attorneys general — are experienced, even-handed civil rights prosecutors, the Justice Department isn’t subject to local political pressure, and federal investigators aren’t bound by friendship or a shared workplace to officers under scrutiny. At the same time, the feds well understand the daily grind and psychic stress of life in law enforcement.
But no one should imagine that a federal civil rights investigation constitutes a simple do-over of the work of a state grand jury. The feds investigate the facts under a completely different and more demanding set of statutes requiring proof of racial animus. These tough-to-prove requirements are seldom met, and federal civil rights indictments are reserved for the rarest of fact patterns.
This rarity is but one reason Americans should not be forced to rely on the feds to obtain justice in the face of suspected police brutality. Federal investigations are costly in every way: Justice is delayed. Elected state prosecutors feel as if their authority is undermined. Once a state grand jury declines to indict, many thoughtful people on both the left and right believe a second criminal investigation is unfair to the accused. More troubling, the public perceives a federal civil rights investigation as a vote of no confidence in the local justice system.
So how can we avoid dependence on federal “cleanup” investigations when a civilian has been killed by police?
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In the aftermath of the cases in Ferguson, Mo., and Staten Island, N.Y., is there a way to restore broad confidence in the process? New York Attorney General Eric Schneiderman’s suggestion that such grand jury investigations be handled by his office rather than local prosecutors deserves serious consideration. This reform would take pressure off district attorneys asked to indict members of their own police forces. But it’s not likely to be carried out in most states, as duly elected local prosecutors make strong legal, policy and fiscal arguments for maintaining control of the grand jury process.
But other elegant solutions would not curtail the duties of local prosecutors. For starters, as occurred to some extent in Ferguson, the complete evidentiary record should be made available to the public within hours of a grand jury’s decision. Legitimate reasons for secrecy — protecting the reputation of those investigated and avoiding witness tampering and intimidation — either don’t apply in high-publicity police brutality investigations or are outweighed by the need for increased public scrutiny of what happened behind the grand jury’s closed doors.
In the current climate of distrust, however, this wouldn’t go nearly far enough. A better answer can be derived from the heart of our adversarial system: A powerful and trusted witness should be positioned behind those closed doors to observe the prosecutor’s presentation to the grand jurors.
States wouldn’t have to overhaul their entire grand jury systems to accomplish this. A state could easily require its governor or state bar association to appoint a highly qualified monitor to observe and report on the grand jury investigation in every police death case. The monitor could be chosen from a pre-qualified pool of lawyers who have experience as both prosecutors and defense counsel and who have demonstrated a deep commitment to fairness.
At the end of the process, these monitors would report publicly on whether all investigative leads were exhausted and evidence properly preserved, whether the examinations of witnesses were thorough and aggressive, and whether the grand jury was appropriately aided in understanding the import of disparate testimony and the application of relevant criminal statutes. These monitors — working for free as sophisticated but silent observers — would also summarize grand jury evidence for public consumption and provide an opinion as to whether a separate federal civil rights investigation is warranted.
In addition, from this same panel of monitors, advisory counsel could be made available to victims’ families. Grieving relatives would be more invested in the grand jury process if they could speak prosecutors’ language and would feel more parity with the accused, who inevitably has a competent lawyer.
States with a confident commitment to equal justice would permit the victim’s advocate to observe the proceedings and register any concerns with the prosecutor before grand jury deliberation. More cautious states might choose between these two proposals, allowing either a neutral legal monitor or a victim’s family observer, but not both.
Prosecutors loathe meddling, but a highly qualified, private monitoring system is the logical first step to enhanced government accountability in police cases resulting in death. This kind of public-private partnership is worth exploring before the public loses faith in the process altogether. Prosecutors intent on fairness have nothing to fear. A sophisticated lawyer-witness to closed-door proceedings would dramatically decrease the chances of misconduct or bias while preventing an untold loss of blood, sweat and tears.
The writer, a former civil rights prosecutor in the Eastern District of New York, is a partner at the law firm Quinn Emanuel.
Special to The Washington Post