UPDATED September 21, 2020 by Joseph Tully

Police brutality sign

I’ve been talking, writing, begging about more accountability for police misconduct, pointing out that judges and prosecutors act as the ‘supervisors’ of police officers, in that prosecutors and judges have the power to sanction, discipline, and repudiate bad or illegal behavior. If the bad apples don’t face penalties, then bad behavior will perpetuate more bad behavior and, ultimately, it will tear at the fabric of our society.

This blog post was originally published FOUR YEARS AGO. It is even more timely and relevant today than it was when it was first posted. Fairness and accountability is needed in society. Prosecutors and judges should not act beholden to law enforcement, nor turn a blind eye to corrupt and unlawful behavior by officers.

Criminal defense attorneys don’t want to be the ones screaming in the wind. We don’t put ourselves into the legal sector with the lowest pay and the highest amount of stress because it’s fun or because we enjoy drama for drama’s sake. We stand on the front lines and we see with our own eyes where things are going. Right now, no matter which ground you stand on, we are all witnessing our failure to demand basic accountability of our officials. This includes law enforcement on the street when officers get out-of-line and the prosecutors and judge who either openly or tacitly failure to sanction their bad behavior.

Here is the Original post from 9-12-2016

On December 3, 2014, a Richmond County grand jury decided not to indict New York City police officer Daniel Pantaleo for using a prohibited chokehold to restrain 43-year-old father of six, Eric Garner, resulting in his death. Despite complete video footage that clearly demonstrated the unwarranted police attack on Garner, the Staten Island district attorney (DA) did not even obtain an indictment for assault.

The tragic case of Eric Garner illustrates a tragedy on an even larger scale. Not only are corrupt cops responsible for their unlawful actions, but our criminal justice system and prosecutorial procedures also share in the blame. Even with the enforcement of body worn police cameras and clear video evidence of wrongdoing, cops continue to literally get away with murder each year. What most people don’t realize is that prosecutors and judges areresponsible for fostering an environment which creates out of control cops.

Courts Rule 85% Officer Involved Killings Justified in 2015

The inherent conflict of interest in police misconduct investigations and prosecution is staggering. Police officers and prosecutors work closely together as a team, a team required to police themselves and enforce their own punishments when things go wrong. DAs cannot be reelected without the support of law enforcement officials and unions, yet are expected to prosecute the very police officers they work with day after day.

A Guardian analysis showed that prosecutors cleared 217 police officer killings from liability in 2015. Eighty-five percent of police officer involved killings were ruled justified last year. Prosecutors review every arrest, decide whether to prosecute that arrest and notify the arresting officer when the arrest is deemed valid. At the same time, police officers work side by side with the prosecutor, processing and supplying evidence, interrogating witnesses and providing testimony. Policies requiring independent, outside prosecutors be appointed to investigate and prosecute cases of police involved shootings would seem obvious, but are practically nonexistent.

Prosecutors Ignore Police Misconduct When Deciding to Indict or Prosecute

Prosecutors get to know police misconduct complaints inside and out. They know who the repeat offenders and problem officers are, yet there is zero incentive for prosecutors to report misconduct discovery. There are no concrete policies and procedures in place for prosecutors to consider prior misconduct complaints when deciding to indict or prosecute.

Howie Lake II and Blane Salamoni, the two officers involved in the shooting death of Alton Sterling, each had two prior use of force complaints under their belts. Officer Jason Van Dyke had ten prior excessive force complaints involving firearms and verbal abuse before shooting and killing Laquan McDonald in October 2014. Yet no one talks about the prosecutors who had reviewed these prior cases and refused to take any action meant to correct the officer’s behavior. No one talks about the judges who heard motion after motion with the same officer being involved in an illegal search or other misconduct and who refused to take any action meant to correct the officer’s behavior.

Officer Retaliation Hinders Reporting of Police Misconduct

The potential for retaliation in response to discrediting an officer’s integrity is huge. It’s safer to bury the evidence, hope it gets brought up by defense counsel and avoid the political wrath. This legitimate fear of retaliation deters fellow officers and investigators from reporting suspected police misconduct. Baltimore detective Joseph Crystal knows this all too well. Crystal found a dead rat on his windshield after contacting prosecutors and filing charges against his sergeant and another officer involving the beating of a drug suspect.

When an arrest is no good, denial of prosecution deters the arresting cop from making the same mistake in the future. He strikes out. He knows he must follow the rules to get ahead. But denial of prosecution based on police misconduct rarely happens. Instead, prosecutors choose to ignore red flags and blow opportunities to get bad cops off the streets, giving officers the go-ahead to lie, use excessive force, withhold evidence and carry out false arrests. When defense attorneys try to raise these issues in court in front of a judge, most likely they are laughed at, demeaned, ignored or screamed at and unceremoniously denied in their claims.

DA’s Lack Support In Establishing Law Enforcement Reform

Policies and procedures that require prosecutors inform an officer’s supervisor of a denial based on police misconduct could be extremely effective. DAs need to enforce an explicit duty for prosecutors to voice concerns around knowledge of police misconduct to defense attorneys. Clear and effective anti-retaliation protections must be in place for those who report police misconduct.

The DA’s role is to enforce policy and promote proper function of our criminal justice system, yet you won’t find many DA’s able to stand their ground, implement police department reform and remain impartial in the prosecution of cases involving police officers. Most government officials refuse to support DA’s in law enforcement policy reform.

When San Francisco DA George Gascón requested funding for a Blue-Ribbon Panel to be established to investigate police misconduct in the shooting of 26-year-old Mario Woods, Police Chief Greg Suhr refused to cooperate in the investigation and Mayor Ed Lee declined funding.

“In the six months since forming the Panel, the San Francisco Police Department and POA have engaged in a dizzying array of stonewalling tactics,” Gascon said in a letter to Mayor Lee. “The Chief of Police has demanded that the Panel work through the POA and not make direct contact with any SFPD officers. This is not the type of transparency and collaboration we could expect from a department and a chief eager to improve.”

Federal Judges Continue to Support Qualified Immunity For Police Misconduct

Federal judges are equally responsible for the widespread police brutality in their reluctance to hold corrupt cops liable for their actions. When Lakewood, Colorado sergeant Todd Fahlsing pulled over Latonya Davis for a suspected suspended license, the disabled woman took her time getting out of the car. Fahlsing proceeded to break her driver side window, pull her through the window by her hair and pin her to pavement.

When Ms. Davis filed a lawsuit against Fahlsing, District Judge William J. Martinez dismissed her case, reasoning that the officer had “qualified immunity,” meaning couldn’t be sued for his actions. Though the 10th Circuit Court of Appeals reversed Judge Martinez’s decision and Ms. Davis will get the opportunity to make her case in court, Judge Martinez’ decision and others like it continue to give officers permission to use excessive force.

The inaction of DA’s, prosecutors and judges is equivalent to telling police officers that it is okay to bypass the rules. On the rare occasion the system holds a cop accountable, it is to set an example to the public rather than to punish the wrongdoing. We must begin to view the prosecution of corrupt cops as we do the prosecution of any criminal– not to set a recurring public example, but to get the potential danger off the streets and protect our citizens.

Joseph Tully – Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before launching Tully & Weiss in 2001. Joseph Tully is a Certified Criminal Law Specialist, an elite certification awarded to less than 1% of California lawyers by the California Board of Legal Specialization and Joseph Tully has been listed among National Trial Lawyers’ “Top 100 Trial Lawyers” multiple years. Joseph Tully has an extraordinary record of victories in high profile trials around the State, and leads his team in the fight for Justice for all.