Who Watches the Watchers?

JUSTIN L. AMOS

ABSTRACT
The recent public outrage stemming from racially-charged cases in
which prosecutors sought indictments against police officers represents an
inherent flaw in both the grand jury system as well as the American legal
system itself. This inherent flaw can be targeted through the appointment
of special prosecutors who, separate from the traditional District
Attorneys Office, may conduct an unbiased investigation of police officer
misconduct. The special prosecutor presents any findings to the grand jury,
as well as during trial proceedings, should an indictment be issued. Not
only is this a viable solution, but the appointment of a special prosecutor
has an analog in numerous other legal areas: outside counsel hired by
private corporations during internal investigations; special prosecutors
appointed when a prosecutor or a government agency is being investigated
and possibly indicted; and even investigations of judicial officers. These
independent, special prosecutors are designed to be unbiased and isolated
to ensure that justice is doled out even-handedly. But in instances where
official actors are under threat of indictment, no state requires the
appointment of a special prosecutor. Rather, the appointment is a
permissive remedy in certain, specific instances.
Based on the foregoing, this Note argues that, due to the inherent
conflict of interest, a special prosecutor should be appointed to oversee all
grand jury and trial proceedings that investigate official police misconduct.
Part I briefly addresses the purpose and function of the grand jury, as well
as the prosecutors role in grand jury proceedings. Part II addresses recent
data regarding the rate of indictments across different segments of the

J.D. Candidate, 2016. BFA Southern Methodist University, 2013. This Note would not have
been possible without the support of friends, family, and the tireless work of the New England
Law Reviews associates. Thanks are due to Professor Tigran Eldred, who first introduced me
to the psychology of decision-making that underlies this Note. Finally, I would particularly
like to thank the Honorable Serge Georges, Jr., who, over the summer I spent in his chambers,
constantly prodded me to challenge my view of the status quo.

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population. Part III will argue that appointment of special prosecutors is

necessary in cases of police misconduct because of the inherent bias held
by prosecutors and the resulting lack of faith in the justice system that
occurs when police officers are left unindicted. Further, Part III will argue
that continuing to allow prosecutors to investigate and prosecute police
officers presents an inherent conflict of interest that would not be tolerated
in any other area of law. Part IV outlines the other areas in the legal
profession where the appointment of an unbiased attorney, analogous to a
special prosecutor, is currently employed. Further, Part IV discusses the
details which should be included in any proposed piece of legislation
providing for this appointment.

INTRODUCTION

ncreasingly in the past decade, the publics exposure to incidents of

police brutality and excessive force has risen exponentially and, with it,
the disappointment of seeing such officers either never investigated or
not indicted by the grand jury.1 From Ferguson, Missouri, to Staten Island,
New York, the lack of criminal accountability for alleged police misconduct
has come front and center in the public eye.2 The American legal system
itself is inherently flawed in the way it addresses the investigation and
prosecution of executive officersfrom the president of the United States
all the way down to rank and file police officers.3
This inherent flaw can be targeted through the appointment of special
prosecutors who, separate from the traditional District Attorneys Office,
may conduct an unbiased investigation of police officer misconduct and
present any findings to the grand jury, as well handle any trial
proceedings, should an indictment be issued.4 Not only is this a viable
solution, but the appointment of a special prosecutor has an analog in
numerous other legal areas: outside counsel hired by private corporations
during internal investigations, special prosecutors appointed when a
prosecutor or a government agency is being investigated and possibly
indicted, and even investigations of judicial officers.5 These independent,
special prosecutors are designed to be unbiased and isolated to ensure that

See Police Abuse Cases Need Special Prosecutors, WASH. POST (Dec. 6, 2014),
http://www.washingtonpost.com/opinions/police-abuse-cases-need-special-prosecutors/
2014/12/06/fcf57e28-7cd6-11e4-b821-503cc7efed9e_story.html [hereinafter Police Abuse].
2 Jason Parham, It's Time We Treat Police Brutality as a National Crisis, GAWKER (Aug. 8, 2014,
9:00 AM), http://gawker.com/it-is-time-we-treat-police-brutality-as-a-national-cris-1613935053.
3

See, e.g., Police Abuse, supra note 1 (outlining recent decisions in Missouri and New York).
See infra Part III.AB.
5 See infra Part IV.B.
4

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justice is doled out even-handedly.6 But in instances where official actors

are under threat of indictment, no state explicitly requires the appointment
of special prosecutors.7 Rather, the appointment is a permissive remedy in
certain, specific instances.8
This Note argues that, due to the inherent conflict of interest, a special
prosecutor should be appointed to oversee all grand jury and trial
proceedings involving official police misconduct. Part I briefly addresses
the purpose and function of the grand jury as well as the prosecutors role
in grand jury proceedings. Part II addresses recent data regarding the rate
of indictments across different segments of the population. Part III will
argue that appointment of special prosecutors is necessary in cases of
police misconduct because of the inherent bias held by prosecutors and the
resulting lack of faith in the justice system that occurs when police officers
are left unindicted. Further, Part III will argue that continuing to allow
prosecutors to investigate and prosecute police officers presents an
inherent conflict of interest that would not be tolerated in any other area of
law. Part IV outlines the other areas in the legal profession where the
appointment of an unbiased attorney, analogous to a special prosecutor, is
currently employed. Further, Part IV discusses the details which should be
included in any proposed piece of legislation providing for this
appointment.
I.

Background

The United States Constitution guarantees that [n]o person shall be

held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury.9 The grand jury is an entirely
different beast from the petit jury, often referred to as the trial jury, with
which society is more commonly familiar.10 Rather than weighing guilt, the
grand jury is charged solely with determining whether sufficient probable
cause exists to believe that a crime was committed.11 As such, its intended
function is to screen out charges not warranting prosecution.12 However,

6 Cf. Ken Gormley, An Original Model Of The Independent Counsel Statute, 97 MICH. L. REV.
601, 60713, 61728 (1998) (providing a thorough analysis of legislative history following the
Watergate scandal).
7

See infra notes 6569 and accompanying text.

See Benjamin Civiletti, Post-Watergate Legislation in Retrospect, 34 SW. L.J. 1043, 1053 (1981).
9 U.S. CONST. amend. V.
10 JULIE R. OSULLIVAN, FEDERAL WHITE COLLAR CRIME CASES AND MATERIALS 797 (5th ed.
2007).
11 United States v. Calandra, 414 U.S. 338, 343 (1974).
12 See, e.g., United States v. Sells Engg, Inc., 463 U.S. 418, 424 (1983); In re Impounded, 241
F.3d 308, 312 (3d Cir. 2001) (explaining that the grand jury serves as referee or buffer between
8

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as will be more thoroughly discussed below, the grand jury bar is by no

means difficult to overcome; indeed, the vast majority of cases presented to
the grand jury result in an indictment.13
A. Brief Overview of the Grand Jury System
Though the practice varies by jurisdiction, the grand jury generally
consists of sixteen to twenty-three members,14 with twelve votes needed to
secure an indictment15a true bill.16 In the rare case, the grand jury can
decline to indict, which is known as no true bill.17 In general, grand jury
proceedings are considered to be a substantially condensed version of the
evidence that might be presented by prosecutors at trial.18 The number of
witnesses presented and the sheer breadth of the evidence is substantially
less than that which would be presented in a full trial; this makes perfect
sense when considering that the grand jury is not determining guilt
beyond a reasonable doubt, but simply probable cause to believe that a
crime was committed.19 Probable cause is a difficult threshold to quantify,
but it is generally viewed as being a rather easy burden of proof to
overcome.20 Probable cause requires reasonable grounds of suspicion to

government and people); United States v. Suarez, 263 F.3d 468, 481 (6th Cir. 2001) (stating that
the institution of the grand jury protects defendants from prosecutorial vindictiveness).
13 See U.S. BUREAU OF JUSTICE STATISTICS, FEDERAL JUSTICE STATISTICS 1112 (2010), available
at http://www.bjs.gov/content/pub/pdf/fjs10st.pdf [hereinafter BUREAU].
14

See FED. R. CRIM. P. 6(a)(1).

See id. at 6(f).
16 See Commonwealth v. Torres, 813 N.E.2d 1261, 1274 (Mass. 2004) (explaining that [t]he
formality of an indictment, with the prosecutors presentation of the case to the grand jury
and the grand jurys return of a true bill, represents the commencement of proceedings
against the defendant for purposes of the Sixth Amendment).
15

17 See Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80
CORNELL L. REV. 260, 266 (1995).
18 Sujit Choudhry, Background on Grand Juries and Federal Civil Rights Suits for Berkeley Law
Students, BERKLEY LAW,
https://www.law.berkeley.edu/files/grand-jury-faq-BerkeleyLaw-12-14.pdf (last visited Apr.
19, 2016).
19

See OSULLIVAN, supra note 10. As an analogue, probable cause is the threshold
requirement when seeking a search or arrest warrant, which are generally granted on no more
evidence than an affidavit submitted by the officer seeking the warrant. See United States v.
Leon, 468 U.S. 897, 915 (1984) (holding that a magistrate issuing a warrant must be convinced,
by the facts alleged in the affidavit, that probable cause exists). However, an affidavit cannot
be merely, bare bones and must state with minimal detail sufficient facts to allow a finding
of probable cause. See id.
20

See, e.g., OSULLIVAN, supra note 10, at 798.

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warrant a reasonable person in believing that the accused actually

committed the crime.21
The Attorney General, or any attorney authorized by the Attorney
General, may conduct grand jury proceedings in the federal courts.22 When
performing their duty with the grand jury:
[T]he prosecutor must always conduct himself or herself as an
officer of the court whose function is to ensure that justice is done
and that guilt shall not escape nor innocence suffer . . . . The
prosecutors responsibility is to advise the grand jury on the law
and to present evidence for its consideration.23

In addition to any information that a prosecutor presents, the grand

jury is also empowered with broad investigatory powers.24 The grand jury
can, on its own initiative or at the request of the prosecutor, issue
subpoenas25 for witness testimony,26 documents,27 and financial
information that might be of use in the determination of probable cause.28
The prosecutor is charged not only with assisting the grand jury by
calling witnesses and eliciting testimony, but further serves as an advocate
on behalf of the government.29 Therefore, it would be incorrect to frame the
prosecutors role as a neutral arbiter who, in a quest to uphold justice and
ensure the innocent are not maliciously prosecuted, merely presents
evidence to the grand jury and wipes his or her hands of the case.30 In fact,
the prosecutor has overwhelming power to shape the grand jurys

21

See, e.g., Hruska v. Severance Specialty, Inc., 498 F.2d 796, 801 (6th Cir. 1974).
See 28 U.S.C. 515(a) (2012).
23 OSULLIVAN, supra note 10, at 795 (quoting Dept of Justice Manual, tit. 9, 9-11.100); see
also United States v. Ciambrone, 601 F.2d 616, 62829 (1979) (Friendly, J., dissenting) (quoting
Berger v. United States, 295 U.S. 78, 88 (1938) ([T]he ex parte character of grand jury
proceedings makes it peculiarly important for a federal prosecutor to remember that . . . the
interest of the United States in a criminal prosecution is not that it shall win a case, but that
justice shall be done.).
22

24 Daniel C. Richman, Grand Jury Secrecy: Plugging The Leaks In An Empty Bucket, 36 AM.
CRIM. L. REV. 339, 344 (1999) (noting that the grand jury has broad coercive powers).
25 Cecilia M. Clarke, Grand Jury Subpoenas, 24 AM. CRIM. L. REV. 819, 819 (1987).
26 See United States v. Wong, 431 U.S. 174, 179 n.8 (1977); United States v. Mandujano, 425
U.S. 564, 573 (1976).
27 See United States v. Dionisio, 410 U.S. 1, 11 n.10 (1973) (discussing the use of subpoena
duces tecum to command witnesses to bring documents with them when appearing to
testify).
28 See Clarke, supra note 25, at 824 n.54.
29 See LYN K. SLATER & KARA R. FINK, SOCIAL WORK PRACTICE & LAW 150 (2012).
30 See 1 SUSAN W. BRENNER & LORIE E. SHAW, FEDERAL GRAND JURY: A GUIDE TO LAW AND
PRACTICE 25556 (2d ed. 2006).

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questioning and, thus, the choice whether to seek an indictment.31 As a

general rule, it is proper for a prosecutor to present hearsay evidence to the
grand juryevidence that is inadmissible at trial.32 Additionally, the
Supreme Court has held that the federal courts cannot dismiss an
otherwise valid indictment where the prosecutor failed to introduce
exculpatory evidence to a grand jury.33 Finally, the defendant has no
constitutional right to testify before the grand jury,34 no right to counsel
when testifying before the grand jury,35 and is not entitled to call witnesses
in his or her defense.36 This inevitably leads to an inequity of power within
the grand jury system.37 The prosecutor controls the flow of information
that the grand jury hears, shapes the evidence in a manner that is
consistent with the governments theory of the crime, and assists the grand

31

See OSULLIVAN, supra note 10, at 799.

United States v. Williams, 504 U.S. 36, 50 (1992); see also United States v. Calandra, 414
U.S. 338, 339 (1974) (explaining that the grand jury is allowed to pursue its investigative and
accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to
a criminal trial). Though there is no explicit court rule, common law, or statutory bar against
prosecutors introducing otherwise inadmissible evidence or requiring the admission of
exculpatory evidence, it:
32

[I]s the policy of the Department of Justice, however, that when a

prosecutor conducting a grand jury inquiry is personally aware of
substantial evidence that directly negates . . . guilt . . . the prosecutor must
present or otherwise disclose such evidence to the grand jury before
seeking an indictment against such a person.
OSULLIVAN, supra note 10, at 827 (quoting Dept of Justice Manual, tit. 9, 9-11.233).
33

See, e.g., Williams, 504 U.S. at 53; BRENNER & SHAW, supra note 30, at 31517.
See FED. R. CRIM. P. 6(d)(1) ( The following persons may be present while the grand jury
is in session: attorneys for the government, the witness being questioned, interpreters when
needed, and a court reporter or an operator of a recording device.). Further, while the grand
jury is deliberating, [n]o person other than the jurors, and any interpreter needed to assist a
hearing-impaired or speech-impaired juror, may be present. . . . Id. at 6(d)(2); see also, e.g.,
Mirrer v. Smyley, 703 F. Supp. 10, 1112 (S.D.N.Y. 1989) ([T]here is no federal constitutional
right to a grand jury in a state criminal proceeding.), affd, 876 F.2d 890 (2d Cir. 1989), cert.
denied, 493 U.S. 850 (1989); WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE 15.2(b), at 489 (2d
ed. 1999) (stating most jurisdictions give grand jury absolute discretionary authority to
decline prospective defendants request to testify).
34

35 See Hon. James F. Holderman & Charles B. Redfern, Symposium, The Changing Face Of
White-Collar Crime: Preindictment Prosecutorial Conduct In The Federal System Revisited, 96 J.
CRIM. L. & CRIMINOLOGY 527, 556 (2006) (Traditionally, the Sixth Amendment right to
counsel has been held to be inapplicable in the grand jury. . . .); Thornton D. Whitney II,
Comment, Right to Counsel in Grand Jury Proceedings, 26 WASH. & LEE L. REV. 97, 97 & n.3
(1969).
36
37

See BRENNER & SHAW, supra note 30, at 317.

See OSULLIVAN, supra note 10, at 798.

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jury as a legal advisor.38 This inequity of power does not necessarily stem
from any prosecutorial misconduct but can occur when prosecutors
simply . . . follow[] the rules. . . .39 Rather, the problem exists because the
prosecutorial institution possesses an intertwined and inextricable
relationship with the grand jury; by and large a prosecutors decisions
will be implemented without question . . . .40 And even in such situations
where a grand jury does not simply rubber-stamp the prosecutors request,
there are a myriad of remedies available to prosecutors to ensure an
indictment will eventually be issued.41 Therefore, the rules governing the
grand jurys decision-making process are structured in such a way as to
make [non-indictments] extremely rare.42
Further, the prosecutor holds a seemingly mutually-exclusive dual
role: a legal advisor to members of the grand jury and a prosecutor.43 For
instance, the grand jury does not address any questions to the court.44
Rather, they funnel all questions to the prosecutor who instructs them on
the applicable law.45 At the same time, prosecutors represent the victim, the
victims family, and the community.46 Therefore, a prosecutor finds herself
caught between dueling, independent interests.47
B. Independent Counsel and Prosecutor Law
The American government operates on the concept of separation of
powers in which the executive, legislative, and judicial branches interact

38 See ADMIN. OFFICE OF COURTS, HANDBOOK FOR FEDERAL JURORS 4 (2016), available at
http://www.ndd.uscourts.gov/jury/jury_handbook_grand_jurors.pdf.
39

Niki Kuckes, The Useful, Dangerous Fiction Of Grand Jury Independence, 41 AM. CRIM. L.
REV. 1, 8 (2006).
40

Id.
See United States v. Thompson, 251 U.S. 407, 413 (1920) (explaining that when one grand
jury panel rejects a proposed indictment, the prosecutor is free to re-present the indictment to
a new grand jury panel). This is not to say that grand juries approve charges brought by the
prosecutor in all instances. See, e.g., Kuckes, supra note 39, at 8 n.38.
41

42

See Kuckes, supra note 39, at 8 n.38.

See BRENNER & SHAW, supra note 30, at 256.
44 See Kevin K. Washburn, Restoring the Grand Jury, 76 FORDHAM L. REV. 2333, 2336 & n.7
(2008).
45 Id.
46 See Prosecutor Function, AM. BAR ASSN, http://www.americanbar.org/publications/
criminal_justice_section_archive/crimjust_standards_pfunc_blk.html (last visited Apr. 19,
2016).
43

47

See BRENNER & SHAW, supra note 30, at 256.

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with and constrain each other.48 However, this separation of powers creates
predictable conflicts of interest and the necessity for unbiased oversight.49
One needs to look no further than the Watergate scandal to understand
why vesting the executive branch with exclusive authority over
prosecutorial power creates the potential for abuse.50 Though the ad hoc
use of special prosecutors can be traced further back in American history
than Watergate, it was not until after the Nixon scandal that the
permanency of special prosecutors began to dominate Congressional
hearings.51 The independent counsel provisions of the Ethics in
Government Act (Independent Counsel Act) sought to neutralize biased
and unethical administration of criminal law by requiring the executive
branch to request a neutral prosecutor in a specified category of cases.52
This concept reinforces the Framers intent to create a system of separated
powers in which each branch has some power over the others.53 The
independent counsel mechanism protects justice from the threat of selfinterest.54
1.

Special Prosecutors in the Federal System

The modern use of special prosecutors is a direct response to the

overwhelming public outcry that followed the criminal activity of high
level executive officers, which in turn convinced Congress that it must act
to insure an independent investigation. . . .55 The provisions of the
Independent Counsel Act are intended to remedy both actual and perceived
conflicts of interest.56 The Supreme Court agreed with this view in

48

See, e.g., Contance OKeefe & Peter Safirstein, Note, Fallen Angels, Separation of Powers, and
the Saturday Night Massacre: An Examination of the Practical, Constitutional, and Political Tensions
in the Special Prosecutor Provisions of the Ethics in Government Act, 49 BROOK. L. REV. 113 (1982).
49

See Gormley, supra note 6.

Cf. id.at 60809.
51 See Katy J. Harriger, The History of the Independent Counsel Provisions: How the Past Informs
the Current Debate, 49 MERCER L. REV. 489, 48991 (1998).
52 See 28 U.S.C. 591(b)(1)(5), (8) (2012).
53 See, e.g., THE FEDERALIST NO. 48 (James Madison).
54 See, e.g., United States v. Brown, 381 U.S. 437, 46768 (1965) (White, J., dissenting)
(identifying the incompatibility clause as a constitutional conflict-of-interest provision); Paul
R. Verkuil, Separation of Powers, The Rule of Law and the Idea of Independence, 30 WM. & MARY L.
REV. 301, 30811 (cataloguing constitutional provisions designed to neutralize government
conflicts of interest).
50

55 Katy J. Harriger, The History of the Independent Counsel Provisions: How the Past Informs the
Current Debate, 49 MERCER L. REV. 489, 495 (1998).
56

Beth Nolan, Removing Conflicts from the Administration of Justice: Conflicts of Interest and
Independent Counsels Under the Ethics in Government Act, 79 GEO. L.J. 1, 9 (1990) (emphasis
added).

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Morrison v. Olson, when it stated: Congress of course was concerned when

it created the office of independent counsel with the conflicts of interest
that could arise in situations when the Executive Branch is called upon to
investigate its own . . . officers.57
Congress believed that the Department of Justice operated under a
fundamental institutional conflict of interest that disables it from fully
and fairly carrying out its investigative and prosecutorial functions . . .
[while] maintain[ing] public confidence in [its] decisions.58 The
independent counsel process was designed to ensure fair and impartial
criminal proceedings when an executive agency is tasked with
investigating its own officials.59 In this manner, the appointment of a
special prosecutor can best be described as a mandatory recusal
procedure.60
This technique of providing for legislative recusal and substitution of
counsel in the government context is not unique to the Independent
Counsel Act.61 The Act reflects a congressional judgment that those who
would normally take responsibility for investigation or prosecution cannot
when it is aimed at other members of the executive because countervailing
interests diminish their ability to meet professional obligations free of
outside influences.62 Further, the independent counsel provisions revealed
congressional uncertainty about the ability of those in power to actor be
publicly perceived as actingfree from the influences of inherent conflicts
of interest.63 However, the Independent Counsel Act is no longer in force;
though Congress re-authorized the Act in 1994 via the Independent
Counsel Reauthorization Act of 1994, it did not subsequently re-authorize
it when the Act was set to expire in 1999.64
2.

Special Prosecutors in the Several States

State courts or officials may appoint independent counsel in a variety

of situations, but no state mandates the appointment of special prosecutors

57 Morrison v. Olson, 487 U.S. 654, 677 (1988). Olson further held that the Act did not violate
the Constitutions Appointments clause. Id. at 69697.
58

Nolan, supra note 56, at 9 (internal quotations omitted).

See id.
60 Civiletti, supra note 8. Recusal refers to the removal of a judge or policy-maker, especially
due to a conflict of interest or prejudice. BLACKS LAW DICTIONARY 631 (4th Pocket ed. 2011).
However, recusal is not limited solely to the disqualification of judges or policy-makers, but
can also apply to prosecutors. See infra notes 6568.
59

61

See infra Part IV.B.

See, e.g., Nolan, supra note 56, at 10 n.28.
63 See id.
64 See Allman v. Padilla, 979 F. Supp. 2d 205, 223 n.13 (D.P.R. 2013).
62

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when investigating official police misconduct.65 For example, special

prosecutors may be appointed when conflicts of interest are alleged or
when state officials are implicated in criminal investigations.66 Some states
also provide for the appointment of a special prosecutor when campaign or
election laws are violated.67 They may also be appointed when state
prosecutors are overburdened.68 At base, these situations represent an
already existing inclination, even at the state level, to acknowledge that
conflicts of interest exist in prosecuting police officersappointing special
prosecutors can be a viable option to address such concerns.69
C. Psychology of Conflicts of Interest
The American Bar Association (ABA) has long fought for the ability
to be seen as a professional organization that is fully capable of regulating
itself.70 To some extent, that may be true.71 The ABA has promulgated
model rules that, in large part, have been adopted and/or adapted by state
bar associations.72 But the underlying assumption that lawyers are able,
through rational introspection, to identify and resolve potential conflicts of
interest may not be as cut and dry as the bar wishes to believe.73 In recent
decades, experts in decision-making theory have explored the
psychological processes that limit rational behavior and inhibit unbiased
evaluation.74 Though the vast majority of research has been applied to
members of the general populationand more recently to the ethics of

65

See infra notes 6669 and accompanying text.

Nolan, supra note 56, at 10 n.27 (citing five state statutes providing for the appointment
of special prosecutors in various contexts); cf. In The Matter of the Enforcement of a Subpoena,
972 N.E.2d 1022, 1026 (Mass. 2010) (citing MASS. GEN. LAWS ch. 211C, 5(1) (1988))
(appointing a special prosecutor to investigate misconduct in violation of the Code of Judicial
Conduct)).
67 Nolan, supra note 56, at 10 n.7 (citing two state statutes providing for the appointment
of a special prosecutor to respond to alleged violations of campaign finance laws).
66

68

Id. (citing two state statutes providing for the appointment of a special prosecutor to
respond to narcotics emergencies in large cities and when district attorneys are faced with a
large amount of litigation).
69 See supra Part I.B.
70 See Fred Zacharias, The Myth of Self-Regulation, 93 MINN. L. REV. 1147, 114749 (2008).
71 Cf. id.
72 See id.
73 Cf. Tigran W. Eldred, The Psychology of Conflicts of Interest in Criminal Cases, 58 KAN. L.
REV. 43, 64 (2009); see also Steven Hartwell, Promoting Moral Development Through Experiential
Teaching, 1 CLINICAL L. REV. 505 (1995)
74

See generally Jeremy A. Blumenthal, Emotional Paternalism, 34 FLA. ST. U. L. REV. 1, 2 (2007)
(discussing the developments in decision making theory over the past fifty years); see also
Jonathon Haidt, The Emotional Dog and Its Rational Tail, 108 PSYCHOL. REV. 814, 81617 (2004).

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defense attorneysthe same premises are just as applicable to

prosecutors.75
Decision making is separated into two distinct modes of cognitive
processing: the deliberative model and the intuitive model.76 The former
describes a quasi step-by-step approach where the decision maker analyzes
and weighs each individual factor before coming to a conclusion.77 The
intuitive model describes the process by which individuals engage in
unconscious, near-automatic decision making based upon biases and
heuristics.78 It is well documented that problem solving and decision
making in professional contexts and everyday life call for a mixture of
intuition and deliberation[,] with intuition predominating due to limited
cognitive ability and time . . . .79 In other words, there is only so much
brain power and time in a given day that people can use toward balancing
any given decision.80 If humans possessed God-like cognitive powers and
infinite time, they may be able to apply a purely deliberative model to
each and every decision that arises in everyday life.81 Failing this, humans
employ a mixture of deliberation and intuition, which is referred to as
bounded ethicality . . . .82 Indeed, ethical decisions are particularly likely
to trigger bounds on conscious thinking and biases in unconscious
thinking . . . .83 When making decisions involving ethical problems, people
are generally disposed toward perceptions, judgments, and behaviors that
are biased toward maintaining a positive self-worth.84 This favoring of selfworth operates at an unconscious level . . . beyond the scope of rational
perception and judgment . . . .85
1.

Self as Moral and Self as Competent Biases

Two primary biases stem from this model of self-worth, the first being
self as moral, which describes a persons tendency to believe herself to be

75 Cf. Eldred, supra note 73 (applying the psychology of decision making to defense
attorneys).
76

PAUL BREST & LINDA HAMILTON KRIEGER, PROBLEM SOLVING, DECISION MAKING, AND
PROFESSIONAL JUDGEMENT: A GUIDE FOR LAWYERS AND POLICYMAKING 22 (2010).
77 Id. at 11, 14.
78 See id. at 14.
79 Id. at 22
80 Id.
81 Id.
82 Dolly Chugh et al., Bounded Ethicality as a Psychological Barrier to Recognizing Conflicts of
Interest, in CONFLICTS OF INTEREST 74, 75 (Don A. Moore et al. eds., 2005).
83

Id. at 79.
Id. at 74, 78.
85 Eldred, supra note 73, at 66.
84

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more honest and ethical than her colleagues.86 The second bias, called self
as competent, describes the false perception that individuals are better
than their peers, generally because they possess some desirable, valuable
trait.87 Both biases operate at the unconscious level, meaning that the
decision maker will believe she has acted, or will act, ethically or
competently regardless of evidence to the contrary.88
Often when a person engages in ethically questionable behavior, she
unconsciously justifies the behavior as a means to maintain self-worth,
referred to as identity protective cognition.89 This instinct has often been
described as the illusion of objectivity which postulates that individuals
view themselves as more objective than their colleagues.90 Similarly, the
self as competent bias seeks to justify the questionable conduct forcing
individuals to believe that decisions that enhance self-interest comport
with ethical norms.91 Thus, bounded ethicality and the biases which stem
from them, self as competent and self as moral, fundamentally affect
lawyers as they attempt to navigate ethical problemsincluding
prosecutors investigating police misconduct.92
2.

Motivated Reasoning, Confirmation Bias, and Self-Serving

Bias

The concept of motivated reasoning builds upon and overlaps with the
self as moral and self as competent biases; according to motivated
reasoning, individuals tend to unconsciously process information, ranging
from empirical data to sensory perception, in order to promote goals or
interests extrinsic to the decisionmaking task.93 Though the goals that
supply motivated reasoning can be fairly straightforward (financial
interests, romantic relationships, etc.) they can encompass much deeper,
more personal matters, such as maintaining a positive self-image.94
Essentially, the goals which drive cognition can certainly affect

86 Chugh et al., supra note 82, at 81. This overconfidence means that humans tend to justify
questionable ethical behavior in order to maintain their illusion. Eldred, supra note 73, at
6667.
87 Eldred, supra note 73, at 67 (citing Chugh, supra note 82, at 84).
88 Chugh et al., supra note 82, at 80.
89 Dan M. Kahan, The Supreme Court 2010 Term: Foreword: Neutral Principles, Motivated
Cognition, and Some Problems for Constitutional Law, 125 HARV. L. REV. 1, 2021 (2011).
90

Eldred, supra note 73, at 6667.

See id. at 68.
92 See infra Part II.B.
93 Kahan, supra note 89, at 7.
94 See id. at 20.
91

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assessments of the weight and credibility of empirical evidence that go

into decision making.95
The manner in which motivated reasoning operates, likewise, covers a
broad number of other biases, such as confirmation bias and the selfserving bias.96 Confirmation bias refers to peoples tendency to search for,
recall, and rationalize information in a manner that confirms pre-existing
beliefs and ignores information which contradicts that pre-existing belief.97
Similarly, the self-serving bias describes peoples tendency to attribute
positive events to their own character but attribute negative events to
external factors.98 Self-serving bias, like the above discussed biases,
primarily operates at an unconscious level which can lead well-meaning
people to make decisions that are indefensible from an objective third
partys point of view.99
II. The Problem of the .000057%
In recent years, grand juries were reluctant to issue no true bills.100
For example, in 2010 (the most recent data currently available), over
193,000 federal offenses were investigated.101 In that same year, federal
grand juries declined to indict in only eleven cases, yielding nonindictments in roughly 0.000057% of cases.102 Numbers such as these,
coupled with the power the prosecutor possesses in controlling the
proceedings, has led to the overwhelming consensus that a grand jury
would indict a ham sandwich if the prosecutor asked it to.103
While the precise number of people killed by the police in the United
States is not available, police departments voluntarily report
approximately 400 justifiable police homicides annually.104 It is the rare
95

Id. at 19.
See Robert A. Prentice, Behavioral Ethics: Can it Help Lawyers (And Others) Be Their Best
Selves?, 29 NOTRE DAME J.L. ETHICS & PUB POLY 35, 61 (2015).
96

97

Stuart Ford, A Social Psychology Model of the Perceived Legitimacy of International Criminal
Courts: Implications for the Success of Transitional Justice Mechanisms, 45 VAND. J. TRANSNAT'L L.
405, 434 (2012).
98 Alice Boyes, The Self-Serving Bias - Definition, Research, and Antidotes, PSYCHOL. TODAY
(Jan. 9, 2013), https://www.psychologytoday.com/blog/in-practice/201301/the-self-servingbias-definition-research-and-antidotes; accord Prentice, supra note 96, at 6163.
99

Prentice, supra note 96, at 63.

See BUREAU, supra note 13.
101 Id.
102 Id.
103 BRENNER & SHAW, supra note 30, at 255.
104 James C. McKinley Jr. & Al Baker, Grand Jury System, with Exceptions, Favor the Police in
Fatalities, N.Y. TIMES (Dec. 7, 2014), http://www.nytimes.com/2014/12/08/nyregion/grandjuries-seldom-charge-police-officers-in-fatal-actions.html.
100

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case in which one of these shootings triggers a preliminary investigation

let alone a grand jury investigation, indictment, or trial.105 For example, in
Harris County, Texas, the last grand jury indictment of a Houston police
officer was in 2004.106 In Dallas, Texas, out of the eighty-one shootings that
occurred between 2008 and 2012, the grand jury only returned one
indictment.107 Approximately 41 officers were charged with either
murder or manslaughter in shootings while on duty between 2004 and
2011.108 Over that same period, police departments reported 2,600 officerinvolved justifiable homicides to the F.B.I.109

ANALYSIS
III. Allowing Prosecutors to Seek Indictments Against Officers They
Work With Sets All Up for Failure
The media attention surrounding recent deadly force used by the
police has brought to light the fundamental problem with having
prosecutors lead both investigations and prosecutions of the same officers
who help them build cases.110 Local prosecutors, rightfully so, often bristle
at the implication that they are unable to perform their duties because they
are too close to police for the publics comfort.111 This sentimentbesides
being utterly self-servingignores ethical constraints and recent social
science data that clearly indicates prosecutors are ill-equipped to spearhead
investigations of police officers.112
A. Prosecutors: A Rock and a Hard Place
One of the most important duties that an attorney owes, both to a client

105

See id.
See Ben Casselman, Its Incredibly Rare for a Grand Jury to Do What Fergusons Just Did,
FIVETHIRTYEIGHT (Nov. 4, 2014, 9:30 PM), http://fivethirtyeight.com/datalab/ferguson-michaelbrown-indictment-darren-wilson/.
106

107

Id.
McKinley & Baker, supra note 104.
109 Id.
110 See James Pinkerton, Bullet Proof Part 3: Hard to Charge, HOUS. CHRONICLE,
http://www.houstonchronicle.com/local/investigations/item/Bulletproof-Part-3-Hard-tocharge-24421.php (last visited Apr. 20, 2016).
108

111 Jennifer Peltz, Chokehold Case Stirs Debate on Special Prosecutors, DAILY REP. ONLINE (Dec.
8, 2014, 2:30 PM), http://www.dailyreportonline.com/id=1202678369407/Chokehold-CaseStirs-Debate-on-Special-Prosecutors?slreturn=20160305153224 (stating that prosecutors are
accountable to the public, while special prosecutors are political appointments).
112

See id.; see also supra Part I.C.

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and the justice system at large, is legal representation free of conflict.113 The
ABAs Model Rules of Professional Conduct forbid an attorney from
representing a client if there is a significant risk that such representation
will be materially limited by the attorneys responsibilities to another
client.114 When such a conflict arises, the most common remedial measure is
disqualification of the conflicted attorney.115 Though disqualification has
been labeled as draconian, drastic, and severe,116 it ensures that a client
receives conflict-free representation.117 Simple logic dictates that an
attorney cannot properly serve two clients if their interests, at any point
and time, substantially diverge.118 Thus, an attorney is barred from
representing a client if such representation would create a conflict of
interest.119 By disqualifying a conflicted attorney, the ABA has made clear
the importance it places on conflict-free representation, even at the expense
of forcing a client to choose a different attorney or reducing the availability
of clients for attorneys.120 This forbidden conflict of interest exists even
though it is improbable that any adverse effect will in fact occur, so long as
a substantial risk exists.121
Prosecutors, unlike other lawyers, occupy a unique role in the legal
system.122 They are charged with seeking convictions as well as justice,
representing both the community and the legal system as a whole.123 When
further tasked to initiate investigations against officers upon whom
prosecutors rely for zealous investigation and the preservation of evidence
113

See MODEL RULES OF PROFL CONDUCT 1.7 cmt. 1 (2010); STEPHEN GILLERS, REGULATION
(9th ed. 2012).

OF LAWYERS: PROBLEMS OF LAW AND ETHICS 18687

114 SUSAN R. MARTYN ET. AL., THE LAW GOVERNING LAWYERS: NATIONAL RULES,
STANDARDS, STATUTES, AND STATE LAWYER CODES 26 (20142015 ed.) (citing MODEL RULES OF
PROFL CONDUCT 1.7(a)(2)). This type of conflict is more commonly referred to as a concurrent
conflict. GILLERS, supra note 113, at 187.
115

See, e.g., Keith Swisher, The Practice and Theory of Lawyer Disqualification, 27 GEO. J. LEGAL
ETHICS 71, 7778 (2014).
116

See, e.g., Univ. Patents, Inc. v. Kligman, 737 F. Supp. 325, 329 (E.D. Pa. 1990).
See MODEL RULES OF PROFL CONDUCT pmbl. cmt. 4 (2010).
118 See id.
119 GILLERS, supra note 113, at 18687.
120 See id.
121 See Monroe Freedman & Paul Butler, Ferguson Prosecutor Should Have Bowed Out; Having
Special Appointees Lead Grand Juries In Cases Against Police Prevents Conflicts Of Interest, 37 THE
NATL LAW J. 30, 30 (2014). Conflicts of interest stemming from an attorneys personal views
can also lead to disqualification, albeit much less frequently than concurrent conflicts.
Swisher, supra note 115, at 7980 & n.23.
122 See, e.g., Prosecutor Function, AM. BAR ASSN, available at http://www.americanbar.org/
publications/criminal_justice_section_archive/crimjust_standards_pfunc_blk.html (last visited
Apr. 7, 2016).
117

123

See, e.g., id.

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in order to secure convictions, the inherent conflict is obvious.124 When

placed between a rock and a hard place, what is a prosecutor to do:
zealously seek an indictment against a police officerthereby risking that
police officers will not assist the prosecutors office with future casesor
allow the conflict to overcome ones duty to the public and shift all blame
to the grand jury which chose not to indict?125 When looking at the
disparaging lack of indictments returned against police officers as opposed
to indictments issued for almost any other person,126 the likely and rational
conclusion is that the prosecutor chose the latter, thereby insulating police
officers from indictment in order to save future cases.127 This might, at first
blush, appear to be a harsh critique of prosecutors, but when taking into
account the fact that .000057% of cases brought before the grand jury do
not lead to indictment, the correlation is undeniable.128
This disparity is all the more suspect when considering that it is
relatively easy to secure an indictment.129 In order to issue a true bill, the
grand jury must find that there exists probable cause to believe the suspect
committed the alleged crime.130 Probable cause only requires a showing
that the grand jury is reasonable in believing that the suspect committed
the alleged crime;131 an incredibly low burden of proof.132
124

Peltz, supra note 111; Police Abuse, supra note 1; see also supra notes 8385 and
accompanying text.
125 See Freedman & Butler, supra note 121 (noting that the prosecutor in Ferguson
conducted the proceedings so that he could put the responsibility on the grand jury for
declining to indict Officer Wilson). However, it entirely possible that the prosecutors bias was
not the actual cause of the grand jurys decision not to a return an indictment. Cf. Police Abuse,
supra note 1. This is due, in no small part, to the fact that:

There are many ways to create such a system, plenty of ways it can
misfire, and no guarantee that it will produce better outcomes than the
status quo, under which local prosecutors handle cases where police are
accused of abuses up to and including the unjustified use of lethal force.
Id.
126

See supra notes 10009 and accompanying text.

Cf. Peltz, supra note 111.
128 See supra notes 3847 and accompanying text.
129 Alex S. Vitale, Why Police Are Rarely Indicted for Misconduct, AL JAZEERA (Nov. 24, 2014,
10:00 PM), http://america.aljazeera.com/opinions/2014/11/ferguson-police-misconductdarren
wilsongrandjury.html.
130 See, e.g., Branzburg v. Hayes, 408 U.S. 665, 68687 (1972) ([T]he ancient role of the
grand jury [is in part] . . . determining if there is probable cause to believe that a crime has
been committed . . . .).
127

131

See, e.g., Commonwealth v. ODell, 466 N.E.2d 828, 831 (Mass. 1984) (noting all that is
required is information . . . sufficient to warrant a prudent man in believing defendant
committed a crime).
132

See, e.g., United States v. DiNapoli, 8 F.3d 909, 913 (2d Cir. 1993).

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B. Prosecutors Might Not Be as Ethical as They Believe

This is not to say that prosecutors are the only problem, or that they
consciously throw cases before the grand jury that involve officer
misconduct.133 In fact, the opposite is likely true: they believe themselves as
wholly competent to bring charges against police officers.134 Herein lies one
of the most insidious aspects to this particular problem; otherwise ethical,
competent attorneys fall prey to an inherent conflict of interest that they
are not even aware is subtly altering their ability to try a case.135 Even if
prosecutors are able to identify the ethical question arising from
investigating officer misconduct, they often intuitively decide that the
ethical thing to do just happens to be what benefits them personally.136
1.

Application to a Prosecutors Brain

Conflicts of interest often occur at an unconscious level.137 This is

because conflicts of interest operate on a dual-process model of decision
making: the human brain processes self-interest unconsciously and
automatically, while decisions relating to ethical responsibilities are more
often the product of conscious deliberation and, therefore, more subject to
volition and control.138 It is thus more likely that a person will make
decisions that relate to their own self-interests at an automatic and
unconscious level, without the benefit of conscious deliberation.139 While
the intuitive and deliberative decision making systems often work in
tandem in coming to a specific decision, when a conflict of interest is
present, self-interest and professional responsibility collide and the
decision-maker often automatically favors the outcome which supports
self-interest.140
Because the decision to zealously seek an indictment relates to self-

133

See Jenny Durkan, As a Federal Prosecutor, I Know How Hard it is to Charge Officers Like
Darren Wilson, WASH. POST (Nov. 24, 2014), http://www.washingtonpost.com/posteverything/
wp/2014/11/24/as-a-federal-prosecutor-i-know-how-hard-it-is-to-convict-officers-like-darrenwilson/.
134 Jennifer K. Robbennolt & Jean R. Sternlight, Behavioral Legal Ethics, 45 ARIZ. ST. L.J. 1107,
1114 (2013) (While most [lawyers] desire to act ethically, psychological processes . . . [can]
lead [them] to engage in ethically questionable behaviors. . . .) (internal quotations omitted).
135

See Eldred, supra note 73, at 6669.

Prentice, supra note 96, at 63.
137 Cf. Eldred, supra note 73, at 66 (discussing the unconscious operation of self-worth on
conflicts of interest).
138 Id. at 6869 (citing Don A. Moore & George Lowenstein, Self-Interest, Automaticity, and
the Psychology of Conflict of Interest, 17 SOC. JUST. RES. 189, 19092 (2004)).
136

139
140

Id.
Id.

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interest, and thus operates on an unconscious level, the hypothetical

prosecutor compensates by molding her conscious, rational deliberation of
ethical concerns to fit the unconscious decision already made.141 Couple
this dual-process model with the limitations of bounded ethicality, and the
result is a critical dichotomy: the decision-maker believes that a decision is
a product of rational deliberation when, in actuality, the automatic bias
favoring self-interest will often lead to an unethical decision without the
decision-maker being any the wiser.142 As such, a prosecutor faced with an
ethical dilemma will often resolve the problem in such a manner so as to
preserve self-interest, i.e. maintaining the illusion of objectivity and tilting
performance assessments in favor of ones own competence . . . .143 It is
much more likely that a prosecutor will either conclude there is insufficient
evidence to charge and seek to indict a police officer or to not as zealously
pursue such avenues, because doing so would be directly contrary to selfinterest.144
2.

Biases in Action

With the above as a backdrop, a prosecutors conflicted position

becomes all the more clear: prosecutors do not, by and large, conduct their
own extensive investigation; rather they rely largely on the police.145 It is
unsurprising, then, that prosecutors would tend to lean toward preserving
a relationship with the police upon whom they rely so heavily and justify
the decision on an unconscious level.146
By the way of illustration, a prosecutor has been presented with an
allegation that a police officer has committed official misconduct.147 Said
prosecutor is now faced with the decision whether to bring charges before
the grand jury.148 At this stage, the prosecutor must evaluate whether she

141

See id.
See id.
143 See Chugh et al., supra note 82, at 84, 9091 (asserting that [s]uch pervasive operation of
implicit or unconscious modes of thinking can compromise reaching intended ethical goals);
see also Leonard E. Gross, Are Differences Among the Attorney Conflict of Interest Rules Consistent
with Principles of Behavioral Economics?, 19 GEO. J. LEGAL ETHICS 111, 113 (2006) (noting that
social science literature suggests that a lawyer will rationalize his behavior as being ethical
because of the innate human tendency to rationalize ones self-interest as being consistent
with morality).
142

144

See Karl Ask et al., Elasticity in Evaluations of Criminal Evidence: Exploring the Role of
Cognitive Dissonance, 16 LEGAL CRIMINOLOGICAL PSYCHOL. 289, 290 (2011).
145 See Vitale, supra note 129.
146 Id.
147 E.g., People v. Moreno, 100 A.D.2d 435, 435 (N.Y. App. Div. 1st Dept 2012).
148 See Seth F. Kreimer, Releases, Redress, and Police Misconduct: Reflections on Agreements to
Waive Civil Rights Actions in Exchange for Dismissal of Criminal Charges, 136 U. PA. L. REV. 851,

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has a conflict of interest that would disqualify her from being able to
ethically perform her duties.149 The vast majority of prosecutors would
conclude that they were not operating under a conflict.150 A closer
examination of the cognitive process, however, yields a decidedly different
view; operating under bounded ethicality, motivated reasoning,
confirmation bias, and self-serving bias risks this inherent conflict being
overlooked or disregarded.151
Operating under self as competent bias, the prosecutor believes that
she is capable of properly seeking an indictment against police officers
because she inherently believes that she is a more competent prosecutor
than her peers; she is ethical and would never act in an unethical
manner.152 This bias is further heightened when the characteristic at issue
is socially desirableas is the case with ethical behavior.153 Even if she is
able to identify that a conflict of interest exists, she is likely to view herself
as fully competent to avoid falling prey to the conflict.154
Likewise, under the self as moral bias, our prosecutor views herself
as being a moral and ethical individual.155 She wishes to continue to feel
she is moral and wants others to view her as the same.156 She is forced to
justify questionable ethical behavior in order to maintain her illusion of
objectivity.157 Such justification inevitably reinforces her original, false
belief even if evidence to the contrary is quite clearcreating a circular
feedback loop.158
Further burdening our prosecutor is motivated reasoning,
confirmation bias, and self-serving bias.159 Her goal is to be an ethical
individual and a successful prosecutor; and thus is strongly motivated to
seek out information and weigh such with the unconscious intent to

909 (1988) (discussing that prosecutors may have trouble discerning police misconduct when
deciding whether to charge a police officer).
149 See Erwin Chemerinsky, The Role of Prosecutors in Dealing with Police Abuse, 8 VA. J. SOC.
POLY & L 605, 625 (2001).
150

Cf. Robbennolt & Sternlight, supra note 134, at 1114.

Eldred, supra note 73, at 66.
152 See, e.g., Robbennolt & Sternlight, supra note 134, at 1116.
153 Id. at 111617.
154 Chugh et al., supra note 82, at 84.
155 Eldred, supra note 73, at 6667.
156 See Robbennolt & Sternlight, supra note 134, at 1116 (discussing the strength of biases
when the characteristic at issue is socially desirable).
157 See Eldred, supra note 73, at 6667.
158 See id.; see also Rachel Barkan et al., The Pot Calling the Kettle Black: Distancing Response to
Ethical Dissonance, 141 J. EXPERIMENTAL PSYCHOL.: GEN. 757, 768 (2012).
151

159

See Prentice, supra note 96, at 61.

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confirm and supplement her goal.160 When she finds information that
conflicts with her view of herselfsuch as the disparity in indictment data
for police misconduct161she is likely to either ignore such information,
falling prey to confirmation bias,162 or to disregard it under the
presumably-false belief that unethical behavior is the province of other
prosecutors and not applicable to her, a textbook result of self-serving
bias.163
Through this psychological lens, the disparity between the number of
indictments sought and obtained against average suspects and the number
of indictments sought and obtained against law enforcement officials
becomes clearer.164 To put it simply, prosecutors who work with police
officers possess an inherent conflict of interest that inhibits their ability to
perform their duties.165 In any other area of law, this conflict of interest
would likely force the lawyer to withdraw from the case.166 Why, then, is it
deemed appropriate to allow prosecutors to continue investigation and
prosecution of accused officers notwithstanding an obvious conflict of
interest?167 The answer is that this allowance is neither appropriate, nor
proper.168
IV. Appointing Special Prosecutors Is the Most Useful Means of
Addressing this Problem
Removing extraneous factors that do not seem to have a direct effect on
the lack of indictmentsgeography, particular grand juries, the tenure of
particular prosecutors, etc.gets directly to the heart of the issue: allowing
prosecutors to initiate grand jury proceedings against the police officers
they rely upon for their cases inevitably leads to inequitable results.169
Mandating the appointment of special prosecutors addresses the
underlying conflict of interest and helps to restore the publics faith and
trust in the ability of the legal system to adequately enforce criminal law.170

160

Kahan, supra note 89, at 19.

Id. at 20.
162 See Ford, supra note 97, at 434.
163 See Prentice, supra note 96, at 6163.
164 See supra Part II.
165 See supra notes 7185 and accompanying text.
166 See GILLERS, supra note 113, at 18687.
167 See Police Abuse, supra note 1; Vitale, supra note 129.
168 See Police Abuse, supra note 1; Vitale, supra note 129.
169 See generally BUREAU, supra note 13 (explaining that the number of federal indictments
that are not issued is miniscule).
161

170

See supra Parts III.AB.

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A. The Law Is Toothless if the Public Cannot Respect It

American courts occupy a unique position in both the administration
of government and the publics consciousness.171 Unlike the legislative and
executive branches, the judicial authoritypossessed of neither the purse
nor the swordultimately rests on sustained public confidence in its moral
sanction.172 Fundamentally, the strength of the court is based upon the
strength of the publics view of its performance.173 This reliance on public
faith is the underlying justification of written judicial opinions, rather than
simply announcing the decision of a particular judge or court.174
While there is no data directly addressing public trust or confidence in
criminal justice gathered before the 1990s,175 a 1999 poll shows that public
ratings of confidence in criminal justice rank far below ratings of
confidence in other institutions, such as banks, the medical system, public
schools, television news, newspapers, big business, and organized labor.176
This dissatisfaction becomes all the more evident when the justice system is
placed under the lens of social scrutiny, such as: media portrayal of the
Alabama police force using police dogs, cattle prods, and fire hoses against
black and white civil rights marchers; New York State prison officials
killing some forty inmates during a riot at Attica Prison; or the discovery
that Arkansas prison officials were secretly murdering inmates.177
Currently, social upheaval in response to grand jury rulings, coupled
with the staggering lack of indictments of police officers engaging in
criminal misconduct,178 the publics faith in the justice system is
hamstrung.179 Implicit in our system of justice is a mutual trust between
those enacting and enforcing laws, and those who are bound by them.180
When the public views actions of the police and prosecutors as

171

Cf. Lawrence W. Sherman, Trust and Confidence in the Criminal Justice System, NATL
CRIM. JUST. REFERENCE SERV. 1, 9 (2001), available at https://www.ncjrs.gov/pdffiles1/nij/1891061.pdf.
172 Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J., dissenting).
173 See id. (Frankfurter, J., dissenting).
174 Cf. Gerald Lebovits, Alifya V. Curtin, & Lisa Solomon, Ethical Judicial Opinion Writing, 21
GEO. J. LEGAL ETHICS 237, 237 (2008).
175 Jeffrey M. Jones, In U.S.,Confidence in Police Lowest in 22 Years, GALLUP (June 19, 2015),
http://www.gallup.com/poll/183704/confidence-police-lowest-years.aspx.
176

See Confidence in Institutions, GALLUP, http://www.gallup.com/poll/1597/confidenceinstitutions.aspx (last visited Apr. 20, 2016).
177 Cf. Sherman, supra note 171, at 1.
178 BUREAU, supra note 13.
179 See, e.g., Peltz, supra note 111 (noting the push by many for special prosecutors).
180 Amy Farrell et al., Juror Perceptions of the Legitimacy of Legal Authorities and Decision
Making in Criminal Cases, 38 LAW & SOC. INQUIRY 773, 774 (2013).

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fundamentally corrupt, the people constrained by the laws are less likely to
seek proper redress in the court system which can, invariably, lead to
distrust for officers and disdain for the law.181 Furthermore, it engrains in
social consciousness that police officers are above the law; they are able to
engage in conduct that, if performed by any other member of the
community at large, would carry a decades-long prison sentence.182 And
such is not simply limited to interactions between the police and members
of the community; studies suggest that jurors may convict potentially
innocent defendants out of fear of crime or lack of trust in the court
system to do justice.183 Likewise, juror bias leads to nullification[,] where
the jury acquits contrary to the weight of the evidence, particularly when
crimes are perceived to be illegitimate.184
In addition to the lost faith in the protective power of the justice
system, Americans are increasingly losing faith in the systems ability to
properly redress criminal acts both against individuals and society.185 The
increasing number of unarmed, racial minority, and/or minor citizens who
are killed in altercations with the police inevitably reinforces the general
publics fear of crime at large and fear of the police.186 One of the principle
foundations of criminal sanctions is a sense of public welfare that is
harmed whenever a crime is committed against society as a whole.187 By
adhering to the status quoconducting grand jury proceedings against
police officers in the current mannerthe public who has been harmed
never sees justice and is never made whole.188 This cripples faith in the
system as well as offends the principles of criminal justice in and of itself.189
B. No Need to Reinvent the Wheel
The appointment of a special prosecutor, or an equivalent, is by no
means a new idea, and it has an analog in numerous other legal areas:
outside counsel hired by private corporations during internal
investigations; special prosecutors appointed when a prosecutor or a

181 Deep National Mistrust of Police by Minorities Exposed in Ferguson, Missouri, CBS NEWS
(Aug. 19, 2014, 2:49 PM), http://www.cbsnews.com/news/ferguson-missouri-highlights-deepnational-mistrust-of-police-by-minorities/ [hereinafter Deep National Mistrust].
182 See, e.g., MASS. GEN. LAWS ch. 265, 13 (2014) (setting a twenty-year maximum sentence
for intentional manslaughter).
183

Farrell et al., supra note 180.

Id.
185 See Deep National Mistrust, supra note 181.
186 E.g., Peltz, supra note 111 (discussing the Eric Garner case).
187 See id.
188 See id.
189 See id.
184

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government agency is being investigated and possibly indicted; even

internal affairs bureauswhich are present in almost every police
departmentto investigate police officers.190
1.

Corporate Compliance and Outside Counsel

The appointment or hiring of an independent, unbiased attorney to

investigate a client is not only limited to the special prosecutors; in fact, the
practice of corporations hiring outside counsel has been in place as long as,
if not longer than, the appointment of special prosecutors, and largely
serves an identical function.191
Though the publics loss of faith in a prosecutors ability to investigate,
indict, and try a police officer is a relatively recent phenomena, the same
cycle occurred within the last few decades, albeit it a different context.192
Following several high-profile scandalsthe most recent recession,
automotive companies and banks requiring federal bailouts, and the
securities and exchange debaclethe publics perception of in-house
corporate counsel was soiled.193 This inevitably led to a consensus that
inside lawyers were too closely tied with their employer to exercise the
independent judgment necessary for in-house counsel to perform their
compliance duties.194 These scandals have cast doubt about inside counsels
ability to fulfill their role as gatekeepers who can prevent harm to the
securities market by disrupting the misconduct of their client
representatives.195 Outside counsel was traditionally conceived as a sort of
gatekeeper who could address the problems inherent with in-house
counsel investigating possible wrongdoing of colleagues, subordinates,
and even superiors.196
This gatekeeper responsibility was designed to enlist the support from

190

See infra Part III.B.13.

Cf. Sung Hui Kim, Symposium, Gatekeepers Inside Out, 21 GEO. J. LEGAL ETHICS 411, 413
(2007).
192 See Deborah A. DeMott, The Discrete Roles of General Counsel, 74 FORDHAM L. REV. 955,
967 (2005) (discussing in-house counsel).
191

193

Kim, supra note 191, at 413.

See, e.g., DeMott, supra note 192 (noting that the conventional skepticism about inhouse lawyers focuses on the exclusivity of their relationship with a single client [their
employer]).
195 Kim, supra note 191 (quoting JOHN C. COFFEE, JR., GATEKEEPERS: THE PROFESSIONS AND
CORPORATE GOVERNANCE 195 (2006) (While the outside attorney has been increasingly
relegated to a specialists role . . . the in-house general counsel seems even less suited to play a
gatekeeping role . . . . [T]he in-house counsel is far more exposed to pressure and reprisals
[from the business he represents].).
194

196

See Kim, supra note 191, at 415.

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outside the company when controlling management commit offenses.197

The logic behind this preference for outsiders is a reluctan[ce] . . . to risk
personal liability on the firms behalf.198 Thus, the ideal gatekeeper
would be an outsider with a career and assets beyond the firm, such as
attorneys who specialize in corporate compliance, auditors, investment
bankers, securities analysts, and securities attorneys.199
It does not take a substantial leap to acknowledge the analogous nature
of corporate outside counsel and the appointment of special prosecutors.200
Businesses have acknowledged the inherent conflict of interest with an
employee (in-house counsel) investigating and potentially having to
disclose misconduct of upper-level management.201 The solution in the
business context is to hire a firm with specialized knowledge to ensure that
management is complying with federal and state regulations, and if not, to
recommend the proper means to address any problems.202 This type of
action seeks to address the identical problem faced by prosecutors who,
like in-house counsel, have dueling interests that cannot rationally
coexist.203 If it works in the realm of corporate compliance, logic dictates its
necessity in the criminal sphere where it is not simply money on the line.204
Rather, the liberty interests of police officers, the publics faith in evenhanded justice, and the integrity of the justice system are at stake.205
2.

Special Prosecutors Appointed to Investigate Executive

and Legislative Officials

Perhaps the strongest argument for the appointment of special

prosecutors to investigate police officer misconduct is found in the
Independent Counsel Act appointments.206 In those appointments, special
prosecutors were appointed by the Attorney General to investigate certain
executive officers who allegedly committed certain federal crimes.207

197

Reinier H. Kraakman, Corporate Liability Strategies and the Costs of Legal Controls, 93 YALE
L.J. 857, 890 (1984).
198 Id. at 891.
199 Kim, supra note 191, at 416
200 Compare supra Part I.B, with supra Part IV.B.1.
201 See supra notes 19196 and accompanying text.
202 Kim, supra note 191, at 416.
203 Compare DeMott, supra note 192, with Peltz, supra note 111.
204 See supra notes 13336 and accompanying text.
205 See supra notes 10009 and accompanying text.
206 The Ethics in Government Amendment of 1982, Pub. L. No. 97-409, 96 Stat. 2039 (1982)
(codified as amended at 28 U.S.C. 591598 (1982).
207

Nolan, supra note 56, at 6.

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Congress, in enacting the Independent Counsel Act, was concerned

with public perception of fairness in the investigation and prosecution of
executive officials, primarily those in high-ranking positions.208 Though
this is not perfectly analogous with prosecutors investigating police
officers, the underlying assumption holds true.209 As Congress
acknowledged the inherent conflict in federal prosecutors investigating
their superiors, it is likewise inappropriate for prosecutors who possess an
undeniable conflict of interest to investigate police officers.210 The fact that
Congress has previously acknowledged this,211 and that most states have
some mechanism for the appointment of special prosecutors in a narrow
set of circumstances, presents a ripe opportunity to require such
appointment in the context of police investigation.212
The states have acknowledged the applicability of special prosecutors
in specific situations when certain conflicts of interest arise.213 If it is proper
to appoint a special prosecutor to investigate members of the same District
Attorneys office214 or to investigate violations of the judicial code of
conduct,215 then the same logic can, and absolutely should, apply to the
investigation and prosecution of police misconduct.216 The circumstances
are near indistinguishable and the interests sought to protectintegrity of
the judicial process, faith in the justice system, and conflict-free
prosecutionare identical.217
C. Proposed Legislation
The social and legal landscape is now ripe for the passage of legislation
establishing an independent prosecutor, as is clearly evidenced from the
public outcry following several high-profile instances of unindicted police
misconduct.218 Passing such a bill, would ensure that states adequately
protect the integrity of prosecutions, address perceived or actual conflicts

208

Id. at 9.
Cf. id. at 6.
210 Cf. id.
211 See id.
212 See Gormley, supra note 6, at 625.
213 See supra notes 6569.
214 See, e.g., Nolan, supra note 56, at 10 n.7 (discussing both Georgia and Kentucky statutes
that permit appointment of a special prosecutor to indict a prosecuting attorney).
215 In The Matter of the Enforcement of a Subpoena, 972 N.E.2d 1022, 1026 (Mass. 2010).
216 See, e.g., Police Abuse, supra note 1.
217 See id.
218 See, e.g., Mckinley & Baker, supra note 104; Parham, supra note 2; Police Abuse, supra note
1; Pinkerton, supra note 110.
209

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of interest, and guarantee that officers who step outside the bounds of their
authority are held to the same standard as any other accused.219
It is important to be aware, however, that this Note purposefully does
not take into account several key factors that should be considered when
setting forth legislation, such as: the necessary funds to ensure proper
enactment; the specific training for both special prosecutors and for the
implementation of offices within individual states; or current state laws or
constitutional considerations that would nullify or heavily restrict the
legislations terms.220 It is simply impractical, at this juncture, to assume
and rebut constitutional challenges that arise under fifty distinct state
constitutions.221 However, because any such legislation should model itself
on the Ethics in Government Act, which was held to be constitutional
against a separation of powers challenge, many of the more obvious
challenges have likely already been dismissed.222 Further, such details do
not alter the analysis set forth in this Note or change the problem it seeks to
address.223 The following outlines particular provisions that should be
included within any piece of legislation adopted on either the federal or
state level.224
1.

Preliminary Investigations and the Appointment of a

Special Prosecutor

Whenever there is an incident of criminal police misconduct, the

Attorney General shall conduct a preliminary investigation akin to that
which would occur prior to formally bringing charges against a common
criminal.225 This first level of gatekeeping would ensure that, from the
onset, there is sufficient evidence to believe that the accused officer
committed a crime before recommending the case for appointment of a
special prosecutor or a decision that there is inadequate evidence to pursue
prosecution under the bill.226 Vesting power in the Attorney General in
particular, rather than a local district attorney, serves to lengthen the

219

See supra Part III.

See generally Lawrence T. Jurlander & Valerie Friedlander, Perilous Executive Power
Perspective on Special Prosecutors in New York, 16 HOFSTRA L. REV. 35, 3536 (1987) (broadly
discussing the effects of proposed special prosecutors on New Yorks penal system).
221 See Randy E. Barnett, The Misconceived Assumption About Constitutional Assumptions, 103
NW. U. L. REV. 615, 654 (2009).
220

222

See Morrison v. Olson, 487 U.S. 654, 69397 (1988).

See supra Parts IIIIV.
224 See infra Part IV.C.12.
225 Compare 28 U.S.C. 591(c)(1) (2012).
226 See supra Parts IIIIV.
223

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distance between the prosecutor agent and the rank-and-file police

officers.227
Upon a determination that further investigation is warranted, the
Attorney General should refer the case to a panel of three judges, who are
appointed by the chief justice of the states highest court.228 These judges
would be statutorily empowered to appoint a special prosecutor and to
define the jurisdictional power he or she would hold.229 However, the
decision whether the Attorney General will refer a case to this panel for
subsequent appointment of a special prosecutor is not subject to judicial
review, much like the decision by a district attorney to decline prosecution
prior to arraignment is not subject to judicial review.230 This division of the
court would serve a second gatekeeping function to ensure that the
attorney chosen for appointment is as free from external biasessuch as
former clients or former employmentand is competent to investigate the
case and bring it to trial should such be necessary.231
2.

Authority, Oversight, and Removal of the Special

Prosecutor

An appointed special prosecutor shall have all of the investigative and

prosecutorial powers that are held by the District Attorney or Attorney
General.232 He or she would operate independently from the District
Attorney, with the ability to conduct proceedings before grand juries,
engage in any litigation that is within the scope of his or her jurisdiction as
set forth by the division of the court, and appeal adverse decisions.233
Due to the quasi-executive position as a special prosecutor, who
otherwise is not an employee of the executive branch, it is imperative that
there is sufficient oversight.234 Such oversight comes in the form of regular
reports detailing the progress of the investigation to the appropriate
legislative committee to ensure that the investigation is proceeding
efficiently.235
Removal of the special prosecutor would require a showing of good
cause, physical or mental disability, or any other condition that

227

See generally Mckinley & Baker, supra note 104.

See 28 U.S.C. 593.
229 See id. at 593(b)(3).
230 See id. at 592(f).
231 See supra Part III.
232 See 28 U.S.C. 594(a).
233 See id.
234 See id. at 594(h)(1); id. at 595(a).
235 See 28 U.S.C. 595(a).
228

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substantially impairs the performance of duties.236 On motion from the

Attorney General before the division of the court, the special prosecutor
can be removed.237 Should a special prosecutor be removed, all reports,
findings, and documents stemming from the investigation would be
turned over to the Attorney General and be made public, except as
necessary to protect the rights of any individual named in the report or to
prevent undue interference with any pending prosecution.238 The decision
to remove the special prosecutor is appealable to the trial court, which has
the authority to reinstate or grant appropriate relief.239

CONCLUSION
It is obvious that the American criminal justice system is in crisis
regarding the manner that it handles the investigation of executive officers,
and has been for decades. In the same fashion the Watergate scandal
exploded in the media and tainted the publics faith in the courts, the
recent string of highly-publicized incidents of police misconduct that did
not result in indictments has stretched the justice system to a breaking
point. The status quo is no longer sufficient. Targeted solutions must be
implemented in order to cure both actual and perceived conflicts of
interest, restore the publics faith in the justice system, and to ensure that
police officers are afforded no more legal protection than the average
citizen. This sort of problem does not call for a wholesale restructuring of
the justice system; the solution is, all things considered, relatively easy to
implement.
Special prosecutors can alleviate the inherent problem presented by
district attorneys who are faced with an unconscious conflict of interest.
The concept of appointing an unbiased, outside counsel is already adopted
in many legal areas and can easily be applied in these circumstances.
Resurrecting the Independent Counsel Act, in some manner, and applying
it to the states, would take great strides to ensure an unbiased investigation
of alleged police misconduct. Failure to do so condemns victims of such
misconduct to second-class status and allows the watchers of the
community to run unfettered, unregulated, and unwatched. Such a result is
repugnant and underserving of American justice.

236

See id. at 596(a)(1).

See id.
238 See id. at 596(a)(2).
239 Compare id. at 596(a)(3).
237