After grand juries opted not to indict police officers in the deaths of Michael Brown and Eric Garner, calls increased among activists and some members of Congress to require special prosecutors — not local district attorneys — to investigate cases of police using deadly force.
Such requirements could be difficult, but not impossible, to push from the federal level, according to a Congressional Research Service legal analysis.
Demonstrators march in New York, Saturday, Dec. 13, 2014, during the Justice for All rally and march. Grand jury decisions not to indict police officers in the deaths of Eric Garner and Michael Brown have unleashed demonstrations and questions about police conduct and whether local prosecutors are the best choice for investigating police. (AP Photo/John Minchillo)
Proponents of such a federal law contend that the symbiotic relationship between prosecutors and the police they work with in fighting crime creates a conflict of interest when a police officer is suspected of misconduct.
“In the twin cases United States v. Morrison and United States v. Lopez, the Supreme Court rejected the argument that local crime had a sufficiently substantial effect on interstate commerce to bring it within the scope of Congress’s Commerce Clause authority,” the CRS analysis said. “It would appear that a similar argument that police shootings substantially affect interstate commerce would be equally unavailing.”
The Morrison case from 2000 found that some provisions of the Violence Against Women Act were unconstitutional because Congress exceeded its power under the Commerce Clause. The 1995 Lopez decision was a gun case in which the high court similarly determined Congress misapplied the Commerce Clause.
Christopher Adkins, a criminal defense attorney in Huntersville, North Carolina, said it’s rare that special prosecutors are ever used. He admits as a former Charlotte police officer for seven years, he’s conflicted because he wants what’s best for the officer, even though he thinks the relationship with police and prosecutors is too close.
“Whenever there is a prosecution of police, there most certainly is a conflict of interest,” Adkins told TheBlaze. “These folks work together every single day and develop a relationship. A lot of time things are either swept under the rug or it’s a small penalty. States do whatever they can do to avoid prosecuting police.”
Special prosecutors have been used at the state and local level for some time, well before the term became better known for national cases during Watergate.
“Historically, special prosecutors have been appointed to try criminal cases in two instances: first, when the case poses a conflict of interest or some other disqualification for the prosecuting attorney (such as when he himself is a criminal defendant), and, two, to handle political or controversial prosecutions that government officials fear will not be prosecuted absent a special counsel,” the CRS report said.
A petition by the liberal group MoveOn.org gathered more than 117,000 signatures that called for a special prosecutor in the Ferguson, Missouri, case of Michael Brown.
Potentially, the most likely way for Congress to intervene in a local investigation would be the use of the purse strings, the CRS said.
“Congress might rely on the Spending Clause to condition the acceptance of federal law enforcement grants upon the states’ adoption of special prosecutor laws,” the analysis said. “This route might alleviate concerns that Congress is interfering with the states’ criminal justice processes as the states can choose whether to adopt the proposed changes.”
The proposed Grand Jury Reform Act, sponsored by Rep. Hank Johnson (D-Ga.) would make federal law enforcements funds contingent on the appointment of a special prosecutor to conduct a probable cause hearing if there is a police misconduct case that led to someone’s death.
The bill would essentially use federal funds to nationalize the various state laws that already exist regarding special prosecutor laws.
The state of New York allows the governor to appoint a special prosecutor in such a case. Democratic Attorney General Eric Schneiderman has called for Democratic Gov. Andrew Cuomo to name a special prosecutor to reexamine the Garner case, who was killed following a confrontation in Staten Island with a New York City police officer.
Missouri, where Brown was shot, permits the appointment of a special prosecutor by the court presiding over the case. Several other states allow a court to appoint a special prosecutor.
Connecticut is the only state that automatically requires the appointment of a special prosecutor after someone dies as a result of police using deadly force, according to the CRS analysis. In California, the grand jury has the ability itself to appoint a special prosecutor.
One other unlikely avenue for Congress to intervene is through Section Five of the Fourteenth Amendment, which allows the federal government to remedy constitutional violations. The section says, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
“Under this theory, Congress must identify a pattern of constitutional violations by state actors, but it is far from clear whether the unconstitutional use of deadly force has been pervasive enough to trigger Congress’s Section 5 remedial power,” the CRS said.