A little over a year ago, debate raged over whether Florida state prosecutor Angela “Tough on Crime” Corey, assigned to prosecute George Zimmerman for killing Trayvon Martin, would dump the case. There was good reason for concern. Zimmerman was not a police officer. But he was seen as the next best (or worst) thing to it, since he had close ties with law enforcement and was a one-time Neighborhood Watch patrol officer. This automatically bestowed upon him the shield that cops have from any charges of misconduct, especially in cases in which the victims of their misconduct are young African Americans or Latinos.
The rest, of course, is history. Zimmerman walked free in part because a jury believed his fairytale that he was the victim of an attack by Martin. But it was in larger part due to the fact that prosecutors put up an inept and feeble prosecution, which reconfirmed the nightmare fear that in the rare times that cops are prosecuted for deadly force, and the victims look like Martin, bad things almost always happen.
A year later, the red flag that flew high when it came to prosecutions in cases involving cops is flying even higher in the Michael Brown slaying. The instant the call was made on whether to prosecute Brown’s killer, Ferguson police Officer Darren Wilson, by hard-nosed St. Louis County Prosecutor Robert McCullough, who has a well-known record of refusing to prosecute officers who have been involved in even outrageous killings of mostly unarmed black suspects, the screams were loud for a special prosecutor. But this hasn’t happened. Missouri Gov. Jay Nixon has emphatically said no. This could be subject to change, but it would take the near miracle of smoking-gun evidence that Brown was killed with absolutely no justification or provocation and the refusal of McCullough to prosecute.
The reason for McCullough’s foot dragging on whether to try Wilson strikes at the heart of why he and other prosecutors either won’t prosecute officers or invariably blow the cases against them in the rare times that they do file charges. More than a decade ago, the US Civil Rights Commission, in its landmark study “Who’s Guarding the Guardians,” a look at the conduct of police and prosecutors in civil rights cases, told exactly why this is the situation. It cited the traditionally close relationships between state and county attorneys and police officers, who usually work together to prosecute criminals. It revealed the difficulties that they have in convincing grand juries and trial juries that a police officer did not merely make an understandable mistake, but committed a crime, and it cited the lack of information about cases that could be prosecuted and systems used for reviewing possibly prosecutable cases.
These towering barriers have been glaringly evident in the Brown slaying. Wilson was put on paid leave, the Ferguson police chief released potentially damaging information about an alleged Brown heist at a convenience store, rallies were held and hundreds of thousands of dollars were raised in Wilson’s defense. And in the flood of news stories about the killing, Wilson has been depicted as a hardworking model cop. There is also no ironclad standard of what is or isn’t an acceptable use of force in police misconduct cases. It often comes down to a judgment call by the officer. In the Rodney King beating case in 1992, in which four LAPD officers stood trial, defense attorneys painted King as the aggressor and claimed that the level of force used against him was justified. This pattern has been evident in a number of celebrated cases since then.
There’s yet another fact about these cases. That involves the calls for a special prosecutor who will take a case away from police-friendly prosecutors and be independent and objective. Corey was a good example of a situation in which even that approach can go terribly wrong. She was the special prosecutor appointed to prosecute Zimmerman. But again, the Civil Rights Commission noted that the appointment of a special prosecutor does not guarantee police officers accused of wrongdoing will be prosecuted and ultimately punished. In many cases, the special prosecutor is another county or district attorney selected from a neighboring jurisdiction that may be subject to the same biases and partiality as the original prosecutor. The commission cites numerous examples in which special prosecutors have been appointed in high-profile cases to eliminate real or perceived bias by local prosecutors, yet the prosecutions still failed to get convictions.
In October, a grand jury supposedly will make the call on whether to indict Wilson on charges in the Brown killing. Barring a dramatic development in the case, it will be up to McCullough to ask for an indictment and to supply evidence that will support a prosecution. This is usually a mere formality in which prosecutors get the green light to go forward. But it is impossible for this to happen if a case isn’t presented in the first place. And given McCullough’s track record and the past history of these cases, the odds are Wilson will not spend a day in criminal court. This is why the red flags fly again on a prosecution in the Brown slaying.
Earl Ofari Hutchinson is an author, political analyst and a frequent MSNBC contributor. He is an associate editor of New America Media and a weekly co-host of “The Al Sharpton Show” on American Urban Radio Network. He is also the host of the weekly “Hutchinson Report” on KTYM 1460 AM Los Angeles and KPFK-907 FM and the Pacifica Radio Network.