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A Sobering Truth: A Look At Differential Treatment After Ferguson And Staten Island

Demonstrators march in New York, Saturday, Dec. 13, 2014, during the Justice for All rally and march. In the past three weeks, grand juries have decided not to indict officers in the chokehold death of Eric Garner in New York and the fatal shooting of Michael Brown in Ferguson, Mo. The decisions have unleashed demonstrations and questions about police conduct and whether local prosecutors are the best choice for investigating police. (John Minchillo/AP)
Demonstrators march in New York, Saturday, Dec. 13, 2014, during the Justice for All rally and march. In the past three weeks, grand juries have decided not to indict officers in the chokehold death of Eric Garner in New York and the fatal shooting of Michael Brown in Ferguson, Mo. The decisions have unleashed demonstrations and questions about police conduct and whether local prosecutors are the best choice for investigating police. (John Minchillo/AP)
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The recent failure of grand juries in Ferguson and Staten Island to indict white police officers who killed unarmed black men has sparked outrage across the nation. And for good reason.

The chief prosecutors in those two jurisdictions each appeared to take an objective, balanced and deliberate approach in presenting the evidence to the grand jury. As Daniel Donovan, the district attorney in Staten Island, declared when announcing his intent to impanel a grand jury to explore charges stemming from the death of Eric Garner: “I will go wherever the evidence takes me, without fear or favor.”

That may sound great to the untrained ear, but it’s not how the system usually operates. In the vast majority of cases, the grand jury process is a brief, pro forma affair in which the prosecutor acts as an advocate for criminal charges, putting forth only the most damning evidence against the accused. It is not a meandering journey where the evidence leads the prosecutor; rather, it is a carefully orchestrated and logically structured mission where the prosecutor leads the process.

All too often police officers receive differential treatment by prosecutors than the rest of us, especially people of color.

The deaths of Michael Brown and Eric Garner, coupled with the subsequent refusal of grand juries to indict the officers who killed them, together point to a sobering truth: All too often police officers receive differential treatment by prosecutors than the rest of us, especially people of color. Cases involving police officers who harm civilians are complicated. Members of law enforcement, unlike most civilians, are issued weapons and authorized to use them in the course of their duty, albeit in certain circumstances. But that difference does not entitle them to a different, and more deferential, process.

This differential treatment is not limited to situations where police officers are the purported perpetrators of crimes. It also occurs in situations where police officers are victims. Let’s take a look at a twist on the Garner and Brown situations from right here in Boston.

On May 30, 1997, a white police sergeant named Gregory Gallagher was shot twice with his own gun during a tussle with an African-American man. The assailant fled the scene, discarding a baseball cap in the process. With Gallagher’s weapon in tow, the man forced his way into a nearby home; at the request of the resident, he relinquished the gun. He drank water from a mug provided by the resident, then left — leaving the gun, the mug and a sweatshirt on the premises.

DNA CHALLENGE

Shortly thereafter, Sergeant Gallagher identified Stephan Cowans as his assailant from a photo array and later a live lineup. Another eyewitness also identified Cowans in a live lineup. The day after the lineup identifications a grand jury in Suffolk County indicted Cowans on a slew of felony charges. The jury found Cowans guilty of all the charges in June 1998, and the trial judge imposed a sentence of 35 to 50 years in prison. Notably, the person who provided the assailant with a mug of water failed to identify him at any point. The only evidence against Cowans — aside from the identifications — came from two Boston Police Department fingerprint analysts who testified that a thumbprint retrieved from the mug belonged to Cowans.

After his appeal was denied, Cowans sought the help of the New England Innocence Project, a nonprofit organization in Boston that investigates and litigates innocence claims in the region. Through the assistance of local lawyer Rob Feldman, Cowans managed to have the mug, baseball cap and sweatshirt subjected to DNA testing. Those DNA tests concluded that the biological material on all three items came from the same person, but that person was not Stephan Cowans. A judge ordered a new trial and prosecutors dismissed the charges in February 2004, acknowledging that the fingerprint evidence was flawed.
Cowans contracted hepatitis C and lost his mother during his incarceration. His later success in a civil rights lawsuit against the City of Boston provided cold comfort. In October 2007, he was killed in his home in a crime that remains unsolved.

How does one reconcile the criminal justice system’s disparate responses to the deaths of Michael Brown and Eric Garner and the attempted shooting of Gregory Gallagher? In the first two incidents, white police officers who indisputably killed black men were never even indicted, let alone tried in open court, after lengthy grand jury proceedings in which the prosecution took measured approaches to the evidence. In the third incident, an African-American man who allegedly shot at (and missed) a white police officer was indicted by a grand jury in a matter of hours, found guilty beyond a reasonable doubt after trial and served more than five years in prison before his exoneration. To be sure, these are three different narratives in three different jurisdictions, yet they bear consistent themes — in police officer-involved incidents, especially cross-racial ones, justice can prove elusive.

procedural justice matters. Prosecutors who work day in and day out with police officers may struggle to look at police officer-involved incidents with clear eyes.

More to the point, local prosecutors, whose jobs depend on daily interactions with police officers, may be incapable of handling these cases effectively and fairly. Although district attorney’s offices may occasionally ask the state attorney general or a special prosecutor to handle these cases, those decisions should not be left to the discretion of individual county prosecutors. Instead, the Commonwealth should formally vest responsibility for the investigation and litigation of potential criminal charges in all police officer-involved incidents in an entity other than the district attorney’s office from the county in which the crime occurred. Possible candidates for this position include the state Attorney General’s Office, the Inspector General’s Office, or the creation of a new body altogether. The specifics of this proposal can be vetted through the sausage-making mill on Beacon Hill, but the general proposition should remain intact. Someone other than county prosecutors should have jurisdiction over all potential crimes committed by or against local police officers.

Now, I am not suggesting that a different grand jury process would have necessarily filtered out Stephan Cowans and spared him his unjust conviction. Nor am I suggesting that outside prosecutors with different grand jury tactics would have yielded indictments in Ferguson and Staten Island. What I am suggesting is that procedural justice matters. Prosecutors who work day in and day out with police officers may struggle to look at police officer-involved incidents with clear eyes.

Related:

Daniel S. Medwed Cognoscenti contributor
Daniel S. Medwed is a professor at Northeastern University School of Law. His most recent book is, “Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent.”

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