Demands for a special prosecutor have become a rallying cry for many people upset with how state’s attorney offices have handled police-involved shootings. The shooting death of Laquan McDonald is the most recent example. Naming a special prosecutor is a superficially attractive response, but closer analysis reveals significant issues.
Some context: There is no legal link between police and county prosecutors. Police officers are employed and paid by municipalities. Prosecutors work for a state’s attorney elected by voters. Elected prosecutors report to no one except at election time. As lawyers, they’re under the general supervision of the Illinois Supreme Court and are bound by laws and canons of ethics, but they have the final word on office policies and decisions to charge or decline cases.
Yes, police and prosecutors work together regularly. Police investigate and apprehend those suspected of crimes, and prosecutors try the cases. Cops are often witnesses in those cases. Do these relationships constitute a legal conflict of interest whenever a police officer might be charged with a crime? No. If that were the standard, a special prosecutor would be needed whenever a potential defendant was a member of any entity whose employees worked regularly with the state’s attorney’s office which, in addition to all police departments, would include the sheriff’s office, the clerk of the Circuit Court’s office and perhaps criminal court judges (especially those who were once prosecutors).
The rules regarding conflicts of interest focus on facts and relationships in specific cases. Procedures exist for handling true conflicts, including the appointment of the Illinois attorney general to prosecute. If that isn’t feasible, a court could appoint a private attorney as special prosecutor.
Other steps have been taken to address police and prosecutors working cases together. For years, prosecutors and investigators assigned to the unit in the state’s attorney’s office responsible for police cases have been barred from working with the police on other matters. Also, recent legislation requires an outside law enforcement agency to investigate cases with potential charges against officers.
A special prosecutor also costs money. It would be unrealistic to expect one attorney to prepare and try a case that would almost inevitably be high profile. Additional attorneys and investigators would be needed, along with support staff.
Some critics argue a special prosecutor in police cases is particularly necessary in Cook County because the state’s attorney’s office has a felony review unit. Felony review began years ago as an agreement between the state’s attorney’s office and the Chicago Police Department by which the police would bring potential felony cases (except for narcotics cases) to assistant state’s attorneys for their review. The assistant state’s attorney could reject the case, require additional police work or agree to file the case. (Over the years, felony review has been expanded to cover suburban Cook County.) This process, in the view of some commentators, enhances the need for prosecutors to step aside in police cases.
Those unfamiliar with felony review may think police and prosecutors always agree on charging decisions. In reality, detectives and assistant state’s attorneys commonly disagree, often heatedly. The tension is healthy. It allows for evidence to be evaluated and tested before individuals are formally brought into the system.
The argument that assistant state’s attorneys cannot stand up to veteran detectives in disputes is a myth. Prosecutors assigned to felony review have been in the office for several years. Also, a number of veteran assistants from the felony trial courts are on felony review teams at any point in time. Finally, the supervisors of felony review, who usually have had many years in the office, regularly participate in individual cases.
Felony review is vital. Through felony review, prosecutors better understand what it takes to develop a good case. They see the challenges detectives face. The result is not a rubber stamp of police work. Rather it helps prosecutors see what it takes to satisfy the burden of proof and to ensure the police have built the best possible case. Felony review makes good cases better and helps weed out flawed cases. All of us should support that.
Dick Devine was Cook County state’s attorney from 1996 to 2008. He is currently of counsel in the Chicago office of the law firm of Cozen O’Connor.