I Fought the Law (And the Law Won)
There is an unspoken commonality between the two big domestic news items of the past week. The first, of course, involves the shooting death of Michael Brown by a Ferguson police officer. The second is the (farcical) indictment of Governor Rick Perry. The former has sparked outrage and continued discussions over items ranging from racism to police brutality. There has been a much needed discussion of whether the police have become more confrontational, and whether they have become overly militarized. Though the wizards of smart at such venerable institutions as Vox may not realize it, this has actually been an ongoing conversation for some time in conservative and libertarian circles. Even some on the right have attacked armies of strawmen in claiming that conservatives in general are reflexively defensive of the police. While we certainly are less quick to call for prosecutions before all the evidence is in (unlike certain governors), that doesn’t mean we automatically awesome that the police are in the right whenever a civilian is shot and killed.
As for the Perry indictment – well, when even the editorial pages of the New York Times and Austin American Statesmen, as well as lefty pundits like Jonathan Chait, acknowledge (through gritted teeth) there is no there there, you might just have yourselves a completely partisan and unmerited prosecution. But the conversation surrounding the Perry indictment has centered around its frivolousness and the potential impact on Perry’s political future. What it has not sparked is a similar conversation about prosecutorial misbehavior that we are hearing regarding police misbehavior. And that is a mistake.
Before continuing, I want to make clear that the two cases are not of the same gravity. Michael Brown is dead, whereas at worst Rick Perry’s possible presidential ambitions have been hampered (though there is a possibility that in fact this has been incredibly beneficial to his presidential aspirations). In the grand scheme of things, I would gladly take wrongful prosecution over being shot and killed by a police officer. Yet, when we talk more generally about law enforcement and criminal prosecution, we should be just as concerned about bad DAs as we are about rotten police officers.
The Perry case has drawn notice, but it’s certainly not the first case of a political prosecution. Indeed, it’s not even the first case of a purely partisan, political prosecution of a Republican coming from a Travis County District Attorney (see Delay, Tom). In Alaska, prosecutors withheld exculpatory evidence that would have exonerated the late Ted Stevens. Now these are political prosecutions, so it might be somewhat more difficult to empathize with the wrongfully prosecuted. But there have been other noteworthy examples of prosecutors either disregarding evidence, or simply engaging in prosecutions due to political pressure, or to advance their own careers. The most notorious example in recent years is perhaps Michael Nifong, the Durham county DA who pressed forward with rape charge against Duke lacrosse players even after it became manifestly obvious that no crime had been committed. This past year we witnessed the George Zimmerman trial, an event which occurred it seems largely because the DA was fearful of the political fallout (and I acknowledge that I might be somewhat generous about her motivations) if there was no prosecution. Even the Michael Brown shooting could become a political prosecution if it is felt that the police officer has to be tried merely to appease the mob.*
*Again, let me emphasize that I am not saying that a trial would merely be a political witch-hunt. We do not have all the evidence in, and it is quite possible that Darren Wilson ought to be indicted once all the evidence is in. I am merely saying here that there is a potential for an unjustified prosecution based solely on political pressure.
These are but the most notorious examples that come to mind, but undoubtedly there are others that are just heinous, if not worse. The point is that some prosecutors – much like some police officers – are motivated by less than honest intentions, and their behavior can be just as destructive to a person’s life. Now, I’m not saying that every incorrect prosecution is a wrongful prosecution. Prosecuting attorneys are mortal and can honestly but incorrectly come to the conclusion that the suspect is guilty. We can only hope in those cases that the jury can realize the error. Prosecutors should not be maligned for honest errors in judgment. But what is dangerous and what does tear at the social fabric is a DA who marches on in spite of contradictory evidence, who intentionally stifles exculpatory evidence, and who refuses to relent all because they just so desperately need a conviction, and any conviction will do.
We don’t fear District Attorneys as we do police officers because District Attorneys don’t carry guns (as part of their jobs), and so they aren’t going to wrongfully kill anyone. But we need to demand the same level of integrity from them as we do the police precisely because they are guardians of law and order. When they use their office as a political weapon, they are making a mockery of the rule of law.