Commentary: DA needs special prosecutor for cases of police misconduct

Austin has had its share of tragic police shootings and wrongful beatings over the years. Most have involved the city’s African-American and Latino communities — so much so that the U.S. Department of Justice intervened in 2007 at the behest of the Austin NAACP and Texas Civil Rights Project.

The Justice Department concluded its review four years later, with the Austin Police Department adopting 160 policy changes, including those involving use of force. But highly controversial shootings and beatings have continued. There are obviously serious police issues coursing through the community.

Amid this problematic situation, Travis County District Attorney Margaret Moore has launched her new policy on handling police misconduct and shootings. It is a stunning step backwards. It limits grand jury review of police misconduct and shootings to her sole discretion. The new policy is anything but independent, transparent or helpful to the community. No matter how many pretty ribbons she tries to wrap around the package, it is still a big lump of coal — with potential danger to the people.

Moore’s plan arrogates more power unto herself; she alone will decide which police cases should go to grand jurors. She will make the ultimate decision. Her theme is “trust me” to do right. However, our system of law and faith in the law does not subscribe to the “trust me” theorem.

How can the public trust a district attorney who depends daily on closely working daily with the police for her success in prosecuting crime — and who needs the votes of the police union and its campaign donations for elections — to do the right thing? Rather, we should rely on the constitutional mechanism we have adopted: an independent grand jury.

Moreover, there should be an independent prosecutor from outside the county to insure that the grand jury operates fairly — perhaps a retired judge or a retired district attorney who has no connection with Travis County. That step alone would raise enormous confidence in the system. Moore’s plan does the opposite and undermines public trust.

What Moore also doesn’t say is that even if she takes a case to the grand jury, she controls the evidence that the grand jurors get, along with the spin she puts on it. This has been the traditional tactic of the district attorney’s office for years and years, which time and again has resulted in the nonprosecution of officers who have wrongly taken citizens’ lives. That’s another reason an independent prosecutor is necessary.

The idea of the grand jury is that it is a cross-section of the community. Grand jurors should make the decision to prosecute, not Moore. This is particularly the case when police-community relations are so fraught. More transparency and more independence are critical to the people’s faith in the system and to foster better relations with the police, which in turn is critical in resolving crime. People must have confidence in the police to report crime to them.

Further, grand jurors can make recommendations and criticisms about police practices — even if they decide not to indict. That function, too, falls by the way in Moore’s new plan. To be sure, setting up a civil rights division in the district attorney’s office is a good step — but it must be independent itself and trigger bringing in a special prosecutor. Moore should have no discretion.

Under her plan, Moore decides what’s best for the community rather than letting the community — grand jurors — decide. The grand jury is our representative in the criminal justice system. Its role is all the more salient when dealing with critical police issues that beset the community.

The civil rights of the people are too important to be left up to the “trust me” discretion of a political official. What people need is more transparency and more independence of the grand jury in police shootings. Otherwise, we end up with a kind of modern-day Star Chamber – a closed discretionary political process that Moore has created, and the antithesis of our Bill of Rights.

Let’s encourage the district attorney to change course and adopt the independent prosecutor option. We would all be better off for it.

Harrington is founder and director emeritus of the Texas Civil Rights Project.

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