[i] (December 12, 2014)

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Legal Sidebar


Special Prosecutors: Investigations and

Prosecutions of Police Use of Deadly Force

12/12/2014

With grand juries in Ferguson, Missouri and Staten Island, New York voting not to indict the police officers
involved in the deaths of Michael Brown and Eric Garner, respectively, many are questioning whether local
prosecutors are adequately presenting these cases to the grand juries. Many have expressed concern that
the potential symbiotic relationship between prosecutors and law enforcement officers deters criminal
prosecutions against police officers who take the life of another in the line of duty. Prompted by these
events and others,   m  have called for special prosecutors to investigate cases of alleged law enforcement
criminality, believing that the appointment of a special prosecutor would remove this potential bias, and
perhaps more  importantly, improve the appearance of impartiality in the eyes of an increasingly concerned
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A special prosecutor-or sometimes referred to as independent counsel or special counsel-is an
attorney who generally supersedes the local prosecuting attorney in particular criminal cases. Historically,
special prosecutors have been appointed to try criminal cases in two instances: first, when the case poses a
conflict of interest or some other disqualification for the prosecuting attorney (such as when he himself is a
criminal defendant), and, two, to handle political or controversial prosecutions that government officials fear
will not be prosecuted absent a special counsel. While the institution of special prosecutors was made
prominent by Kenneth  Starr and the independent counsel offic established under the Ethics in Government
Act of 1978 (which expired in 1999), special prosecutors have long played a role in state investigations and
prosecutions covering everything from public corruption to violation of prohibition laws.

The process for appointing special prosecutors varies widely from state to state. One reason for this
divergence is the constitutional status of each state's prosecuting attorneys. Depending on the state, the
attorney general, the district attorney, or both, are allocated prosecuting authority in their state
constitutions. Some states, such as RewYork, vest broad authority to request a special prosecutor in the
Governor. New  York's Attorney General Eric Schneiderman recently requested that Governor Cuomo should
exercise this authority to appoint the AG to investigate and prosecute future cases of police use of deadly
force on any unarmed  person. Many states, including Washington. and Missoud., permit appointment by the
court presiding over the case, either through statute or the courts' inherent common law power. In New
Mexic,  the state attorney general is authorized to bring a prosecution upon failure or refusal of any
district attorney to act in any criminal case. Interestingly, in California, the grand jury itself may call for a
special prosecutor who is chosen by the Attorney General. Connecticut appears to be the only state that
currently has a law on the books expressly requiring a special prosecutor in cases of police use of deadly
force. Under that law, whenever a police officer uses deadly force upon another person and that person
dies, the state's Division of Criminal Justice is authorized to appoint a special prosecutor to investigate and
potentially prosecute the case.

Since the investigation and prosecution of local crime is generally the province of the states, there is a
potential concern that Congress would be unduly interfering with state criminal justice systems by requiring
the appointment of special prosecutors in state deadly force cases. This raises the question as to what
constitutional authority Congress might rely upon to implement these changes.

In the twin cases United States v. Morrison and United States v. Lopez, the Supreme Court rejected the
argument  that local crime had a sufficiently substantial effect on interstate commerce to bring it within the
scope of Congress's Commerce  Clause authority. It would appear that a similar argument that police
shootings substantially affect interstate commerce would be equally unavailing. Likewise, it might be argued

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