Civil Discourse Now

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Special prosecutor should be appointed whenever a police officer is alleged to have violated criminal law.

The grand jury failed to indict Ferguson, Missouri, police Officer Darren Wilson for the shooting of Michael Brown. There appear to have been irregularities in the procedure by which evidence was presented to the grand jury. For example, while some eyewitnesses who claimed Brown had raised his hands—a near-universal show of surrender—were cross-examined by the prosecutor, Wilson was allowed to give a narrative that, one may reasonably infer, was intended to be exculpatory.

   Whether the prosecutor erred in the Missouri case is irrelevant to the point to be made in this post.The goal of any case is to seek truth and see those who are culpable face prosecution.
As Judd Legum wrote on November 26 on ThinkProgress.ord, Justice Scalia wrote, in United States v. Williams, 504 U.S. 36 (1992), that the role of the grand jury is “not ‘to enquire ... upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. ... As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.”
One dynamic this case reveals is the extent to which prosecutors rely upon law enforcement officers on a daily basis. Police play a critical part in nearly any prosecution. When a prosecutor faces a situation such as the one in Ferguson, Missouri, the prudent course is to ask that a special prosecutor—a prosecutor from a different jurisdiction; in Indiana that would mean a prosecutor from a county different than the one in which the alleged offense occurred—be appointed. However, umbrage could be taken by law enforcement even then because the prosecutor did not have to request a special prosecutor.

   Indiana Code 33-39-1-6 provides for appointment of special prosecutors, but there is no requirement a special prosecutor be appointed in arrests of police officers.

One measure our General Assembly could adopt that might reduce these factors is a statute that would require appointment of a special prosecutor in cases where a police officer is charged with a misdemeanor or felony.
Some might criticize this measure as too weak. The special prosecutor still would be a prosecutor, albeit from another county, and so subject to the same pressures from law enforcement. The law enforcement officers of one’s own county, at least, would be once-removed from the case.
On a different note, “Civil Discourse Now” will be on hiatus until after the first of the year. We shall return with a slightly different format and in a somewhat-different medium.

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