The events in Ferguson, Mo., and Staten Island, N.Y., are tragic on many levels. Two families have lost sons to violence at the hands of police officers performing their duties. On a macro level, the shooting of Michael Brown and the chokehold restraint of Eric Garner by white police officers exposed a strong belief by many, white and black, that racism is still very much alive in our country and may even be getting worse. A starting point for addressing these complex and important issues is to examine our system for the investigation and prosecution of cases in which law enforcement officers use force against unarmed civilians that results in death or serious injury.
The oft-cited adage that a prosecutor could indict a ham sandwich is equally apt in the converse. Just as a prosecutor can present evidence to a grand jury in a way that leads to no other conclusion but that the defendant should be charged based on the lower standard of probable cause, a prosecutor can also tailor the way the evidence is presented to ensure the return of a "no true bill," which in legal parlance means, no indictment.
Any objective review of the grand jury investigation of the events in Ferguson, where the evidence considered was publicly released, can lead to no other conclusion but that the prosecutors chose the latter approach. Even ascribing to them the best intentions, it is clear that they had their own view of the events and the evidence, and their presentation was designed to sway the grand jurors to their conclusions regarding what happened. The examples are too numerous to enumerate here, but simply comparing the examination of the civilian eyewitnesses who were challenged by prosecutors about the accuracy of what they claimed to have observed with the questioning of Officer Darren Wilson, who was allowed to testify without even the most basic cross-examination, leaves little doubt that the result was preordained.
As the state's attorney for Baltimore City, I have had the difficult and unenviable task of investigating cases in which individuals died while in confrontations with police officers. In each of these cases, senior prosecutors in the state's attorney's office investigated the case and used the grand jury for the purpose of collecting evidence and subpoenaing recalcitrant witnesses to appear and testify. After a thorough and complete investigation and application of the facts to the law, we made the decision as to whether or not the facts warranted criminal prosecution.
I believe it is my responsibility to make an independent judgment of whether there is sufficient evidence of criminal activity to bring the case to a grand jury and seek an indictment (something prosecutors do every day in thousands of cases). I would have been abdicating that responsibility by simply parking a dump truck of evidence into the grand jury and leaving to a group of lay citizens the task of sorting it out and applying complicated legal principles that include whether the use of deadly force by a law enforcement officer was justified. For those who believe that the grand jury is the appropriate decision-maker in these cases, they need look no farther than the result in Ferguson to see how this can be little more than a ham-handed way to provide political cover.
So, what is the solution? Clearly, a different approach is worth considering because even the most well-intentioned prosecutors must deal with the tensions and potential conflicts that exist between having to work with law enforcement officers on a daily basis and also investigate them for alleged violations of the law. In the federal system, the attorney general has appointed a special counsel from the private sector to investigate cases of alleged criminal wrongdoing where there is a potential conflict of interest in the Department of Justice handling the matter. A similar approach could be used for cases in which a citizen was killed or seriously injured during an interaction with a law enforcement officer. By selecting an attorney who has prior investigative and prosecutorial experience, but is no longer connected to the prosecutor's office or the police department, the public would be assured that an individual with sufficient experience and independence is reviewing the matter and making a decision without any real or perceived biases.
The devil, of course, is in the details, and questions will need to be addressed as to who chooses the special counsel, what should his or her qualifications be, what types of cases should they handle, and what resources will be made available to them to conduct a thorough investigation and potential prosecution. In cases like the ones in Ferguson and New York, an investigation by an experienced and respected attorney with no connection to the parties could go a long way toward breaking down the distrust that exists between law enforcement and the citizens they are sworn to protect, and reaffirm the public's faith in our legal system and the rule of law, which can become the foundation for the important discussion of how we as a society treat and respect all of our members.
Gregg L. Bernstein is the state's attorney for Baltimore City. His email is firstname.lastname@example.org.