What we should learn from Garner and Ferguson cases

This is not the first time we have struggled with this anguish and it will not be the last. But there may be a new prospect for hope this time.

We can begin by enhancing the perception of fairness of the official response when police use deadly force.

Much of the anger being expressed across the country comes from the fact that after these deaths, the criminal justice system suddenly seems helpless when invoked in their defense.

Importantly, the problem is not as many have suggested that the prosecutors in Ferguson and Staten Island presented exculpatory evidence to the respective grand juries. The grand jurors in Ferguson and Staten Island were doing something different. They were taking the place of the prosecutor, do whether to bring criminal charges. While we generally trust prosecutors to make charging decisions, there is good reason not to trust them when the suspect is a police officer. The grand jury should make the charging decision in these cases, both in terms of actual fairness and public perception. If the grand jury is acting as the prosecutor, however, it must see all the evidence.

One of the worst outcomes of recent events would be if prosecutors and grand jurors internalize the notion that the public wants cases to advance to trial notwithstanding substantial doubts about guilt. There are already thousands of defendants across the country jailed pending trial, trying to choose between pleading guilty to a shaky charge or risking a much higher sentence at trial.

Police deadly force cases should go to grand juries, and the grand jurors should see all the relevant evidence, but the presentation should be guided not by a prosecutor, but by a "special counsel," an attorney completely independent of the local police and prosecuting authority.

There is a model for this approach.

 

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