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Police Enabled by Prosecutors

By       Message Barry Sussman     Permalink
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The American criminal-justice system currently holds the world's largest population of incarcerated people, approximately 2.3 million at last count. It is a system that has people serving life sentences for non-violent offenses and, despite celebrated anecdotal instances of occasional leniency, tends to punish even the most trivial of offenders to the nth degree.

The stunning ease with which indictments and convictions are often obtained has resulted in a flood of false imprisonments. Stories of people spending decades in prison for crimes they did not commit are reported with sickening regularity, begging the question of how prosecutors can be allowed to wield such unchecked power. Incredibly, even when prosecutors are found to have engaged in deliberate withholding of exculpatory evidence, subornation of perjury, and other acts that subvert justice, meaningful accountability is absent. Numerous courts have held that prosecutors are immune from civil liability for such acts.

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This unbridled and unchecked power has caused more than one prosecutor to brag about possessing the ability to "indict a ham sandwich." Being before anything else an extension of the prosecutor, the entire grand-jury process in America is ripe for whimsical outcomes and prosecutorial abuse. To obtain an indictment, all a prosecutor must do is present their best examples of inculpatory evidence, explain to the grand jurors how this evidence satisfies the elements of the charges being sought, and let the jury vote. The burden for indictment is nowhere near "proof beyond a reasonable doubt." A prosecutor must only show that it is more likely than not that a crime has been committed.


"If the prosecutor wants an indictment and doesn't get one, something has gone horribly wrong," said Andrew D. Leipold, a University of Illinois law professor who has written critically about grand juries. "It just doesn't happen."

The ease with which prosecutors obtain indictments allows for an overall indictment rate of about 98 to 99 percent. The rate of indictment is even higher in federal court where in 2010, the most recent year for which statistics are available, approximately 162,000 criminal cases were brought before grand juries with indictments being returned in all but 11 of them.

The grand jury is essentially a rubber stamp for prosecutors. This ability to completely control the grand jury's outcome is an invitation for endemic abuse.

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Packing prisons with outright innocent and largely over-sentenced, over-prosecuted prisoners is one type of prosecutorial abuse. The statistical certainty of indictment virtually assures defendants that they will be subjected to trial, where conviction rates run as high as 99.5%. This leaves many who fall victim to an overzealous prosecutor with no choice but to plead guilty, regardless of their level of culpability. The problem has become so prevalent in federal court that a federal judge, USDJ Jed Rakoff, recently penned an article entitled "Why Innocent People Plead Guilty."

Rakoff's piece begins with an interesting observation. "The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes." It goes on to describe how a prosecutor "has all the advantages."

Recent events in Ferguson, MO, and Staten Island, NY, highlight another type of unchecked prosecutorial abuse. Two grand juries, one in New York where Eric Garner was choked to death by officer Daniel Pantaleo, the other in Missouri, where Michael Brown was fatally shot by officer Darren Wilson, defied the statistical certainty of indictment and failed to return criminal indictments against offending police officers. These were both highly anticipated grand-jury results with their respective decisions coming a little more than a week apart. Indictments failed to be returned despite a wealth of inculpatory evidence, including in the Garner matter videotape of the offending officer applying an illegal chokehold while the victim states 11 times that he could not breathe. The tape later shows police officers and EMT personnel failing to make any attempt at resuscitation.

The aforementioned ease with which an indictment can be obtained, coupled with the abundance of inculpatory evidence against the offending officers, strongly suggests that a competent first-year law student vested with ordinary prosecutorial power could have succeeded in securing indictments in these cases. The failure to indict signals this was the goal of the respective prosecutors from the beginning.

While the Garner and Brown killings have brought national attention to the issue, the failure of prosecutors to properly prosecute police is not a new phenomenon and may be more widespread than earlier believed. For example, according to a study by the Houston Chronicle, grand juries in Harris County, Texas, have not indicted a police officer in a decade. Grand juries in Dallas looked at 81 possible cases of police criminality between 2008 and 2012 and indicted only one police officer.

Despite the documented reticence of prosecutors to indict police, their law-enforcement counterparts in various media accounts wrote of the recent results as if they were objective, albeit inexplicable, outcomes.

"The reality of what we saw and what the grand jury's decision is, is really what people are clamoring to understand better," New York state Senate Democratic Leader Andrea Stewart-Cousins told USA Today.

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"Daily Show" comedian Jon Stewart said of the Garner grand-jury decision, "I don't know. I honestly don't know what to say."

Ekow N. Yankah, a professor at Cardozo School of Law, said, "It is hard to understand how a jury doesn't see any probable cause that a crime has been committed or is being committed when looking at that video, especially."

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Barry Scott Sussman- Born and raised in New Jersey. Graduated from Rutgers University with a BA in Sociology. Graduated with a JD from the Benjamin Cardozo School of Law specializing in Federal Criminal Procedure and Federal Prosecutorial (more...)
 

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