R. Michael Cassidy, The Daily Record Newswire
The recent deaths of unarmed black men at the hands of police officers have focused public attention on racial injustice in America. The outcry also has prompted calls for reconsidering how investigations into police-involved killings are conducted, and by whom.
Police officers in the United States fatally shoot hundreds of people each year, but only a small handful of these incidents result in the police officer facing criminal charges. Marilyn Mosby's recent decision to charge six officers in Baltimore is the exception, not the rule.
Some commentators have called Mosby's decision courageous, while others have criticized it as grandstanding and an effort at mob control.
Somewhat ironically, the same police union that normally has a cozy relationship with the Baltimore prosecutor's office now has called for appointment of an independent prosecutor.
Massachusetts is not immune from our nation's rising concern about prosecutorial independence. At the same time that the rate of violent crime in Massachusetts has been dropping, the rate of fatal shootings by police officers has been rising.
From 2008 to 2013, the number of civilians in the state shot by police officers grew every year. The deadliest year documented so far was 2013, when 12 Massachusetts citizens were killed at the hands of police. All the cases ended up being classified by the district attorney as justifiable homicides.
Recent incidents in Weymouth, Stoughton and Tewksbury are only the most recent examples of so-called "police-involved" deaths in Massachusetts.
In every instance in which a police officer is involved in a death in Massachusetts, the investigation of the incident is handled by men and women in blue. In Worcester and Boston, members of the very same police department that are involved in the death investigate the killing. In all other cities and towns, the investigation is handled by the state police, but the detectives are assigned to the Crime Prevention and Control Unit, or CPAC, within the local District Attorney's Office. This is the same district attorney who ultimately will make the decision whether to call for an inquest, to present the case to the grand jury for possible charges, or to terminate the investigation for lack of sufficient evidence of wrongdoing.
These local DAs work daily with the police departments that are involved in the deaths. DAs thus face a conflict of interest between their desire to maintain a close working relationship with local police and their duty to conduct a thorough and objective investigation.
Although it involved correctional guards rather than police officers, the recent case involving the death of Joshua Messier at Bridgewater State Hospital and the subsequent botched investigation by District Attorney Timothy Cruz highlights the need for prosecutorial independence.
Some have approached the problem of prosecutorial independence through the route of grand jury reform, noting that prosecutors should not have the ability to manipulate secret grand jury proceedings in a manner favorable to law enforcement.
After the Eric Garner case on Staten Island, the chief justice of the New York Court of Appeals called for more judicial involvement in any grand jury proceeding involving a police killing. Judge Jonathan Lippman recommended that trial court judges instruct the grand jury on the law and on its independent power to call and question witnesses, and then ensure that inadmissible or overly prejudicial evidence is not introduced before that body.
The problem with that suggested reform is that it would entail a redirection of scarce judicial resources from trial to pre-trial proceedings and would lead to appeals in rulings on admissibility of evidence before the grand jury, where traditional rules of evidence historically have not applied.
Moreover, if fundamental concerns for grand jury independence warrant judges becoming more involved in homicide investigations, it is hard to rationalize why that same judicial attention should not be paid to other grand jury investigations, such as those involving rape or armed robbery.
Inquests are not an adequate substitute for a thorough investigation by an experienced and objective prosecutor. Inquests in Massachusetts are conducted by a District Court judge to determine whether there is probable cause to believe that a death was accidental or homicide.
While an inquest offers a forum for airing details and disputed facts, it does not automatically lead to the initiation of charges; if the presiding judge determines in his report that the use of deadly force was not justified, the district attorney still has discretion not to charge.
The inquest also suffers many of the same defects in transparency as the grand jury, because inquest proceedings in Massachusetts are closed to the public.
A more sensible solution is to transfer authority to investigate police-involved killings to the state attorney general. New York AG Eric Schneiderman suggested precisely that reform after the Eric Garner tragedy. The AG in Massachusetts has jurisdiction over criminal cases, and experienced prosecutors on her staff who routinely handle a wide variety of criminal cases ranging from narcotics and organized crime to fraud. The state police unit within the AG's Office is both well trained and highly respected.
Moving the investigation of police-involved deaths away from local prosecutors to Beacon Hill - but keeping the decision with an elected official accountable to the voters - will promote greater objectivity and independence in deciding when a police officer's use of deadly force is justified. It also will prompt more uniform and identifiable state-wide standards on the use of lethal force.
Police departments and district attorneys undoubtedly will object to this proposal, but it should be apparent to legislators that the benefits of assuring unbiased investigations and charging decisions outweigh territorial concerns.
At a time when trust in law enforcement has eroded nationally, particularly among minority communities, some form of systemic reform is critical to regain public trust. When respect for the law's legitimacy crumbles, so does the ability of our democracy to nurture norms around law-abiding behavior.
Massachusetts should not wait for the next Ferguson-like incident to spearhead reform. An important step - both substantively and symbolically - would be to transfer authority for investigating police-involved killings away from the district attorneys.
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R. Michael Cassidy is a professor at Boston College Law School and director of the Rappaport Center for Law and Public Policy.
Published: Thu, May 21, 2015
