In the aftermath of highly publicized police shootings, a number of states around the country have enacted reforms requiring special prosecutors to investigate police shootings, and many other states are considering them. Chicago, more so than any other jurisdiction, needs to implement this reform.
The demand for special prosecutors is a result of the following dynamic: local prosecutors work with police officers every day, and depend so heavily on officer testimony to obtain convictions. This creates an inherent conflict of interest for a local prosecution office when the police themselves are investigated.
The conflict of interest is exacerbated in Chicago. This is because Cook County has a one-of-a-kind process for major crimes called “felony review,” which creates an especially close, collaborative relationship between local prosecutors and police.
Here’s how it works: When a Chicago police officer seeks felony charges against an arrestee, he calls the Felony Review Unit of the Cook County State’s Attorney’s Office. This Unit works 24 hours a day and prosecutors are on call for 12-hour shifts. The prosecutor on duty then makes a decision to either approve felony charges, permanently reject them, or reject them pending further investigation.
Serious cases like homicide, sexual assault, and armed robbery, however, are “mandatory personals,” meaning that in the most high profile crimes prosecutors are required to go to the police station and participate in the investigation. There, they interview and obtain signed statements from witnesses or, in cases where arrestees allegedly confessed to police, the suspects themselves.
In any criminal trial that follows, the felony review prosecutor invariably testifies that the statement is accurate and voluntary. And this testimony almost always sinks the accused: “Why would an attorney put her career on the line to frame the defendant?” the trial prosecutor almost always successfully argues.
The appropriate question, however, is not whether the prosecutor framed the suspect, but if the prosecutor was in a position to ferret out police overreaching. The prosecutors assigned to the unit are often young and inexperienced. It is naïve to think that they could stare down older, savvy Chicago detectives and question their investigations, even if they have cause to doubt it. All the more so because these prosecutors need the officers on their side to effectively prosecute cases in court. A young felony review prosecutor questioning or maligning police tactics only undermines the Office’s broader effort.
According to a December 2014 Washington Post poll, Democrats and Republicans alike overwhelmingly agree that outside prosecutors should investigate police shootings.
Other jurisdictions like New York, Wisconsin, and Connecticut have recognized the need to wrest the review of police involved shootings from local prosecutors, even though none of these states have the additional conflict created by felony review. The same appears to be true for the 13 other states that introduced legislation to require special prosecutors to investigate officer-involved shootings.
Yet, in Chicago, only one of the three Democratic candidates for Cook County prosecutor has voiced support for the appointment of special prosecutors in police shooting cases. The candidates that oppose this reform have intimate knowledge of the Cook County State’s Attorney’s Office and the dynamics created by felony review. They should reconsider their position.
Meanwhile, the various investigations into the criminal justice system in Chicago, including those by the United States Department of Justice and the Mayor’s appointed panel, should consider Chicago’s unique felony review process in making their recommendations. They might consider whether felony review should be abolished in its current form. But to the extent it remains in place, they should insist that all police involved shootings be investigated by special prosecutors.
This op-ed, written by Loevy & Loevy attorney Anand Swaminathan and Joshua Tepfer, an attorney and lecturer at the University of Chicago Law School’s Exoneration Project, was originally published in the Chicago Sun-Times on Tuesday, February 2, 2016.
