Monday, July 13, 2020

Police-Prosecutor Codependence

As we call for police accountability, let's remember this is just one front in the fight. Police often escape consequences because they are protected by prosecutors who, in turn, have little to no accountability. The Washington Post ran an opinion piece by D.C. public defender Rachel Cicurel, Don’t stop with the police: Check racism in the prosecutor’s office. She reviews widely substantiated statistical evidence of prosecutorial bias against people of color and recounts her own experience in the courtroom as "prosecutors fight to keep officers’ misconduct secret after they’ve unconstitutionally targeted, stopped and searched a person of color." And she offers another painfully familiar refrain: "I’ve listened to prosecutors absurdly claim that a chronically ill black man was as likely to contract covid-19 at home as he was inside a crowded, filthy jail." She closes with a call for prosecutorial accountability. While they hide behind policy, practice, and management, "the truth is: They do have a choice."

Prosecutors often choose to protect police. They fight against disclosing Giglio information. If they lose the fight, they ask for protective orders that preclude the defense from using information in other cases. They invoke the heavy burden of Armstrong to deter discovery of racially discriminatory policing and prosecutorial practices, such as stash house sting operations. They invoke the good-faith doctrine to save bad searches that targeted people of color. And the list goes on. Yet prosecutors are rarely called out for perpetuating the  misconduct.  

Understanding the myriad reasons that prosecutors choose to protect police is the first step toward reform. To Serve and Protect Each Other: How Police-Prosecutor Codependence Enables Police Misconduct, 100 BULR 895 (2020), looks to legal precedent and social sciences to show "the persistent, codependent relationship between police and prosecutors exacerbates police misconduct and violence and is aided by prosecutors in both legal and extralegal ways." While suggesting policy and legislative reforms, the article does not really contemplate defense initiatives. 

That is our responsibility. One approach is systematic Giglio litigation tied to faithful collection, tracking, and publication of impeachment information. With that data, we can challenge the prosecution's continued reliance--or codependence--on reprobate police. Meaningful data is a powerful tool for change.    

Want to read more? Here you go: Jonathan Abel, Brady’s Blind Spot:Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, 67 Stanford Law Review 743 (2015). 

Let's get to work.

-- Melody

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