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Outsiders May Be the Best Judges

October 29, 2000|Samuel H. Pillsbury | Samuel H. Pillsbury is a professor of law at Loyola Law School

The history of criminal prosecutions of police abuse in Los Angeles nearly always disappoints reformers. The first criminal trial stemming from the Rampart scandal, now underway, is unlikely to be any different.

The reasons are complex. They involve the nature of police prosecutions, current methods for handling them and the need to focus reform efforts on institutions rather than individuals.

Some of the problems with police-abuse cases are well-known. The standard prosecutorial argument in criminal cases--it's "us vs. them"--doesn't work when the defendants are police officers and the victims have criminal records.

In addition to being expensive, police prosecutions can corrode relationships critical to law enforcement, especially between police and prosecutors. In the Rampart scandal, disputes over criminal prosecution have led to a virtual cold war between the leadership of the Los Angeles Police Department and the district attorney's office.

When verdicts are perceived as unjust, the costs can be even higher. The city still bears the physical scars of the reaction to the first Rodney G. King-beating trial, when outrage at acquittals led to days of destruction and death.

Finally, criminal prosecutions, because of their focus on individual liability, can impede the search for broader truths. In the Rampart scandal, the D.A.'s office has refused to release many details of what it knows about police wrongdoing on the ground that such revelations might harm its ongoing criminal investigations. Similarly, fear of criminal prosecution--and internal police discipline--discourage a free exchange of information among police officers who have firsthand knowledge of misconduct.

None of this means we should forego criminal prosecutions. Nor that we can't substantially improve the way such cases are handled. But if the aim is to reform and not just assign blame for past mistakes, the system that asks local law enforcement to investigate and prosecute local police should be questioned.

Our adversarial system generally views skeptically those who claim they can judge a dispute without regard to personal or professional allegiances to someone involved. It is why there are expensive and elaborate rules for distinguishing the roles of prosecutor and defense attorney, judge and jury. Yet, when we ask police officers to investigate fellow officers, especially for on-the-job abuses of crime-fighting authority, and ask prosecutors who have built careers on close working relationships with police, to seek jail time for those in blue, we take on faith such claims of super-human objectivity. Some officers and prosecutors may be able to manage these potential conflicts without difficulty. But good government cannot depend on public servants being so exceptional.

Basic principles of adversarial justice argue for giving responsibility for at least some police-abuse cases to an agency independent of those under investigation. For example, as in the King case, the FBI may investigate, and the U.S. attorney may prosecute. Federal intervention cannot be a long-term solution, however, for the integrity of local police should not depend on federal decision-making.

Another possibility is to expand the role of the California attorney general's office to include a new division composed of experienced investigators and trial prosecutors who would handle police-abuse cases statewide. This division would fit within the attorney general's mandate as the state's top law-enforcement officer with designated supervisory powers. The independence of the division's police and prosecutors from local agencies would lend credibility to its decisions. The volume of police-abuse cases handled would permit the development of true expertise in the area, increasing the success rate of prosecution. Finally, removing such politically charged and divisive cases from the responsibility of local police and prosecutors might well improve the credibility and efficiency of these agencies.

Creating such a division would not be easy, politically or legally. Complex issues of jurisdiction would have to be resolved. But the severity and persistence of police-abuse problems in Los Angeles suggest it is an option that needs to be seriously explored.

Regardless of changes in criminal prosecutions, the real action in local reform will take place, if it does, outside the courtroom. Although individuals will be important in creating change, the focus of these efforts must be institutions.

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