Being a Careful Lawyer – Prosecutorial Discretion, Police Misconduct, and Upholding the Rule of Law

Watching the first day of the confirmation hearing of Loretta Lynch today I was in awe.  As a young Black woman, and an attorney, I was invigorated by her handling of the diversity of questioning.  While some may have been disappointed in her “refusal” to answer certain questions with obscure and poorly defined hypotheticals, her poise and delivery has been flawless.  What many of these critics fail to understand is that the at times clumsy questioning of members of the Senate Judiciary Committee, could not have been reasonably answered by anyone with a modicum of legal training.  As a seasoned attorney, US Attorney Lynch did the right thing in declining to answer questions without complete facts and a full review of the relevant legal precedent.  To paraphrase US Attorney Lynch, it is not a prosecutor’s job to substitute his or her personal feelings, biases, or opinions for the rule of law.

Her words struck a chord with me on many levels, as did the incessant questioning by Senator Cruz regarding prosecutorial discretion and the need for special prosecutors in certain instances. Listening to US Attorney Lynch discuss the duties of a federal prosecutor and the oath of office, I thought about the state counterparts who often refuse to enforce the law and in many ways frustrate justice.  Senator Cruz, noted to his dismay several instances where he felt a special prosecutor would be warranted and how the impartiality of even law enforcement agents can be called into question. I agree with Senator Cruz, there are times and situations where a prosecutor or other investigator is too close to a situation to be effective.  There are times when a prosecutor (or other investigators) are too personally invested in the outcome in a matter that their presence only serves to thwart justice.  This has been apparent in the several instances where local prosecutors have failed to bring charges in instances involving potential police abuse and misconduct.

US Attorney Lynch infamously prosecuted former NYPD Officer Justin Volpe for sodomizing Haitian Immigrant Abner Louima inside a Brooklyn police station in 1997.  As a result of her vigorous prosecution, Mr. Volpe is currently serving a thirty year prison sentence for the vicious assault.  Officer Charles Schwarz served time in federal prison for lying about his role in the attack. In a 2007 NYPOST article, Kenneth Thompson, the current District Attorney for Kings County stated “I think people now realize that police officers, when they do wrong, can be held accountable in a court of law,” he said.  Officers can and should be held accountable for their actions, and prosecutors who are looking into such matters must be able to put aside their personal feelings, beliefs, and biases to fully investigate any and all issues of impropriety. Prosecutorial discretion, as challenged today by Senator Cruz, is a principle that needs to be reexamined in light of the many convictions being overturned across the country. So many wrongfully accused, yet vigorously prosecuted, are being exonerated.  Notably, DA Thompson has overturned nearly a dozen convictions by his predecessor and is widening the scope of his review.  Although I’m nearly certain that this was not the context Senator Cruz was referring when he discussed the need for special prosecutors, nevertheless the fact remains that prosecutors are at times more loyal to their law enforcement “team” than the laws they have sworn to uphold and enforce.

We have a fragmented justice system that is riddled with inequality and inconsistency in approach as well as punishment.  In speaking about the prosecution of cops for actions involving abuse, misconduct, and in some cases the murders of civilians we often hear that police are just doing their job.  Pro-police supporters will say we just need to support them…no questions asked. This position is fatally flawed as questions should be asked, and often.  Police serve an important role in our society.  Yet, they too must be held accountable to the laws of the land as a check and balance on their authority. Every week we are being inundated with details of yet another cop (or cops) behaving in a questionable manner.  Addressing issues of police misconduct, training, and retention are important but examining the role of prosecutorial discretion as well as prosecutorial abuse and misconduct is crucial.

More prosecutors need to embrace this role in spite of their personal biases and opinions of the accused and the position he or she may hold in society. Prosecutors are charged with upholding the law, not a maintaining a system of inequality that condemns some members to one fate, while others escape unscathed.  By refusing to evaluate the continued disparities in the handling of cases involving issues of race, ethnicity, class, and gender as well as those cases where law enforcement officers are not held accountable only serves to undercut the sanctity of our government.  Our laws and ability to enforce them within the rule of law are paramount to maintaining our freedoms and ensuring that all those within the country have the ability to enjoy life, liberty, and the pursuit of happiness.  We can no longer tolerate those who make excuses, bury evidence, or look the other way as bad actors pervert our justice system.  We need more legal practitioners such as Loretta Lynch and Kenneth Thompson who are willing to review cases where needed and put the rule of law first above all else.

As US Attorney Lynch said today, one of the negative consequences of failing to deal with problem cops is the backlash on the system as a whole. In dealing with police brutality, killings by police, and other instances of officer misconduct state and local prosecutors are on the front line of upholding the law.  Failing to address issues of injustice at these levels generally speaking will negate any actual redress within the criminal justice system for such bad and excessive behavior.  Although federal prosecutors can step in to address issues involving police misconduct and killings by police, the circumstances under which such review can be undertaken is very narrow in scope. In situations where prosecutors are incapable of putting aside their personal beliefs and feelings, special prosecutors are essential to ensuring that the rule of law is being upheld.  Local and state level criminal justice advocates need to press for the appointment of special prosecutors as well as the enactment of provisions which will provide greater oversight to police actions and addressing persisting issues of misconduct and abuse of power.  Absolute power corrupts absolutely…which is exactly why the police and prosecutors should not have blanket authority to do whatever they please.  These people are public servants and as such work for us. Time to make sure that job is being done right!


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