The Case for a Special Prosecutor

The April 25 verdict by Justice Arthur Cooperman in the Sean Bell New York City case confirms the widely held belief that it is difficult--almost impossible--to prosecute on-duty police officers in police misconduct cases, especially those involving homicide allegations. The verdict underscores the need for systemic change in the way New York state handles these important and, at times, high-profile cases.

The current system relies on locally elected prosecutors, usually county district attorneys, to prosecute these cases. The system ignores the built-in conflict of interest of the D.A. offices; that is, the result of a routine working relationship between the D.A. and the police. It also overlooks the reality that D.A. offices often lack the necessary expertise and experience in handling cases involving complex police/community relationships.

The 1972 Knapp Commission, investigating New York City Police Department corruption, found that it was impractical for local D.A.s to handle police misconduct cases. It wrote: "The district attorneys in the five counties and the Department of Investigations, although they have a few non-police investigators, depend primarily upon policemen to conduct investigations. In the case of the district attorneys, there is the additional problem that the public tends to look upon them and indeed, they look upon themselves as allies of the department."

The Knapp Commission recommended and then-Gov. Nelson Rockefeller created the New York State Office of Special Prosecutor for Law Enforcement and Administration of Criminal Justice in New York City. This office successfully function until then-Gov. Mario Cuomo eliminated it in 1990.

In the 1990s, the Mollen Commission investigating NYPD misconduct found a direct relationship between corruption and brutality.

In the Bell case, numerous serious questions remain unresolved. Fore example, why didn't the prosecutors ask the judge to include the lesser-included charge of criminal negligent homicide In New York City, police officers on duty were found guilty of homicide on three occasions (in 1977, 1996 and 2003). In each case, the officer was convicted of criminal negligent homicide (manslaughter 1 and murder 2 charges require proof of intent, which usually is not present in these cases). Also, why did the prosecutors read into the record the defendants grand jury testimony a decision that almost guaranteed that none of the thee defendants would take the stand, thus forfeiting the opportunity to cross-examine. Why didn't the prosecutors call an expert witness to the stand to describe alternative ways for an officer to approach Bell's car, as distinguished form the way they approached his car?

The Bell case--like the Amadou Diallo case, the Gidone Busch case, the Patrick Dorismond case and others--involve the officer, the citizen and entire communities that are too often, but not exclusively, communities of color. The verdicts and the lack of accountability ripple through the community, increasing the mistrust of the police and the criminal justice system with growing polarization and divisiveness, especially along racial lines.

A system that included a special prosecutor who has a proven record of accomplishment and engendered confidence from the community and the law enforcement world would be able to publicly explain why, in certain instances, the correct legal result was no indictment or no conviction. Currently, that possibility is unlikely.

The time to confront and ameliorate this problem is now. The time to create a New York State Special Prosecutor for Corruption and Brutality is now. Sen. Eric Adams of Brooklyn, 100 Black in Law Enforcement Who Care, the Latino Officers Association, the Westchester Chapter of the National Black Police Association and others are supporting the call for a statewide special prosecutor. The challenge is for Gov. David Paterson to lead a statewide effort to bring about changes in the investigation and prosecution of police officers charged with illegality. Anything less will allow history to repeat itself time and time again.

"Civil Liberties and U" is a column by Norman Siegel that appears periodically in The Westchester Crusader; it is reprinted here with permission.