Tuesday, December 9, 2014

Why We Need Term Limits for Prosecutors

December is police brutality month here at Court Breakdown.  We have been focusing on the laws and mindsets that allow for tragedies like the unpunished death of Eric Garner.  Today, however, I would like to focus on one possible part of the solution:  term limits for prosecutors.  While this simple step does not directly deal with bad cops, it would indirectly do a great deal to increase police officer's criminal accountability.

Term Limits for Prosecutors Would Interrupt the Close Relationship Between Cops & Prosecutors

One need look no further than the transcript of Darren Wilson's testimony  to see that in the status quo the important adversarial nature of our criminal justice system is lost in cases with police defendants.  An example can be found at pages 22-23, where this exchange occurred between the prosecutor and Darren Wilson:

Q   And it was your opinion that you needed to pull out your weapon because why did you feel that way, I don't want to put words in your mouth?
A   I felt that another one of those punches in my face could knock me out or worse. I mean it was, he's obviously bigger than I was and stronger and the, I've already taken two to the face and I didn't think I would, the third one could be fatal if he hit me right.
Q   You thought he could hit you and it would be a fatal injury?
A   Or at least unconscious and then who knows what would happen to me after that.

The prosecution led the defendant through his defense during a grand jury!  This simply would not happen if a non-law enforcement defendant were facing possible murder charges but claimed self defense.  The defendant and the prosecution are not supposed to be on the same side.  However, our system makes it so that, in the case of police defendants, they absolutely will be.  First of all, the same police work with the same prosecutors over and over again, particularly in smaller cities and towns.  But even in large cities, police have power over prosecutors because police hold political sway.  If you are an elected prosecutor who the police do not support it is unlikely that you will be a second term elected prosecutor.

Term Limits Would Provide for a Fresh Set of Eyes, Especially in Serious Cases

In most states, if not all, there is no statute of limitations for murder.  Missouri has none. Missouri also lacks a statute of limitation for robbery, rape, and many other very serious crimes. Most Missouri crimes involving child sexual abuse either have no statute of limitations or have one so long as to make it effectively meaningless.  And even for less serious felonies the statute of limitations usually allows for some period of years in which a prosecutor can bring charges.  So if prosecutors were only in office for a limited amount of time then another new prosecutor would have an opportunity to consider the case in a reasonable amount of time before evidence and memories degraded too much.  In the Darren Wilson case there were calls for a special prosecutor because many members of the public believed that the current elected prosecutor in St. Louis County could be fair.  Ultimately no special prosecutor was appointed in the case.  And ultimately, that elected prosecutor has chosen not to file any charges even though he could despite the grand jury outcome.  If he faced term limits, and a news prosecutor were going to be in his chair in a year or two, then that new prosecutor could review that decision and determine whether it was correct or not.  

Term Limits Would Allow Prosecutors to Embrace Their Roles as Ministers of Justice

Prosecutors are supposed to be special.  Every other type of litigator, from criminal defense attorneys to insurance company lawyers to personal injury lawyers to medical malpractice defense attorneys, is supposed to be loyal to one person (or company):  the client.  A criminal defense attorney is not supposed to give a crap about what is best for society--its her job to get the best outcome for her client that she can within the bounds of the law.  The prosecutor sort of has a client--the people of the state.  But when you look at any ethical rules out there, the prosecutor has a different special duty.  He or she is sworn to be a minister of justice.  A prosecutor is not supposed to care about getting "a conviction," he or she is supposed to care about getting the "right conviction."

Unfortunately, a system where elected prosecutors have to face the voters every few years makes fulfilling that role nearly impossible.  A prosecutor who does the right thing and dismisses a case she cannot prove gets called "weak on crime" in the next election cycle.  The one who stands up in the case of one bad cop gets labeled as "anti-police" by his opponent.  They cannot win.  The public that does not sit in the criminal courts day in and day out does not understand the individual facts of the cases and may not even understand the prosecutor's real responsibilities.  They just want the so-called bad guys put away.

Term Limits Would Help Regardless of Community Size

There are two types of elected prosecutors--active prosecutors and office heads/policy makers.  In small towns the elected prosecutor almost always has to find his or her way into the trenches and actually handle the cases.  Some of them do not have the funding for any assistants at all.  Its easy to see how term limits would directly impact these offices.  But in some larger areas it seems at times like the elected prosecutor might not set foot in a court room for years.  Instead they manage an office, deal with the public, and set policy. But they are the ones who set the tone.  They are the ones who make the big decisions on the big issues that their assistants then have to enforce.  One can be fairly certain that in a high profile case like the Darren Wilson case that the assistants who were sent into that grand jury room did not have absolute autonomy in how that case was handled--their boss had some say in it.  That say can be used in a positive way or in a negative way.  And more turn over would provide more of an opportunity for it to be used in a positive way.

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