Outsiders May Be the Best Judges

The history of criminal prosecutions of police abuse in Los Angeles nearly always disappoints reformers. The first criminal trial stemming from the Rampart scandal, now underway, is unlikely to be any different.

The reasons are complex. They involve the nature of police prosecutions, current methods for handling them and the need to focus reform efforts on institutions rather than individuals.

Some of the problems with police-abuse cases are well-known. The standard prosecutorial argument in criminal cases--it’s “us vs. them”--doesn’t work when the defendants are police officers and the victims have criminal records.

In addition to being expensive, police prosecutions can corrode relationships critical to law enforcement, especially between police and prosecutors. In the Rampart scandal, disputes over criminal prosecution have led to a virtual cold war between the leadership of the Los Angeles Police Department and the district attorney’s office.

When verdicts are perceived as unjust, the costs can be even higher. The city still bears the physical scars of the reaction to the first Rodney G. King-beating trial, when outrage at acquittals led to days of destruction and death.

Finally, criminal prosecutions, because of their focus on individual liability, can impede the search for broader truths. In the Rampart scandal, the D.A.’s office has refused to release many details of what it knows about police wrongdoing on the ground that such revelations might harm its ongoing criminal investigations. Similarly, fear of criminal prosecution--and internal police discipline--discourage a free exchange of information among police officers who have firsthand knowledge of misconduct.

None of this means we should forego criminal prosecutions. Nor that we can’t substantially improve the way such cases are handled. But if the aim is to reform and not just assign blame for past mistakes, the system that asks local law enforcement to investigate and prosecute local police should be questioned.

Our adversarial system generally views skeptically those who claim they can judge a dispute without regard to personal or professional allegiances to someone involved. It is why there are expensive and elaborate rules for distinguishing the roles of prosecutor and defense attorney, judge and jury. Yet, when we ask police officers to investigate fellow officers, especially for on-the-job abuses of crime-fighting authority, and ask prosecutors who have built careers on close working relationships with police, to seek jail time for those in blue, we take on faith such claims of super-human objectivity. Some officers and prosecutors may be able to manage these potential conflicts without difficulty. But good government cannot depend on public servants being so exceptional.

Basic principles of adversarial justice argue for giving responsibility for at least some police-abuse cases to an agency independent of those under investigation. For example, as in the King case, the FBI may investigate, and the U.S. attorney may prosecute. Federal intervention cannot be a long-term solution, however, for the integrity of local police should not depend on federal decision-making.

Another possibility is to expand the role of the California attorney general’s office to include a new division composed of experienced investigators and trial prosecutors who would handle police-abuse cases statewide. This division would fit within the attorney general’s mandate as the state’s top law-enforcement officer with designated supervisory powers. The independence of the division’s police and prosecutors from local agencies would lend credibility to its decisions. The volume of police-abuse cases handled would permit the development of true expertise in the area, increasing the success rate of prosecution. Finally, removing such politically charged and divisive cases from the responsibility of local police and prosecutors might well improve the credibility and efficiency of these agencies.

Creating such a division would not be easy, politically or legally. Complex issues of jurisdiction would have to be resolved. But the severity and persistence of police-abuse problems in Los Angeles suggest it is an option that needs to be seriously explored.

Regardless of changes in criminal prosecutions, the real action in local reform will take place, if it does, outside the courtroom. Although individuals will be important in creating change, the focus of these efforts must be institutions.

Of the many institutional problems to be addressed, none may be more important than the insularity and distrust of outsiders that mark the LAPD and D.A.’s office. These qualities can be traced, in part, to the fact that both institutions are run by people who have worked virtually their entire careers in the same organization, one with a strong sense of its own special, adversarial mission. These are the qualities that make each institution’s treatment of negative information a particularly telling test of reform.

On the plus side, both the LAPD and the district attorney have admitted serious past mistakes in their handling of the Rampart scandal and have taken corrective actions. The Police Department, under Chief Bernard Parks, has worked hard to remove problem officers, and the D.A.’s office, under Gil Garcetti, has taken the lead in overturning some 100 convictions that it believed were tainted by corrupt cops. Some may complain about timing and methods, but willingness to take responsibility for errors should never be trivialized.

On the negative side, both institutions have displayed a limited understanding of the public interest in the free exchange of information. Bureaucratic passivity, narrow definitions of responsibility and general defensiveness have all contributed to the late and stinting dissemination of data on police misconduct. The LAPD’s occasionally Kremlinesque handling of internal investigative reports has infuriated the defense bar, judges and prosecutors. But the D.A. office’s treatment of damaging information merits serious criticism as well.

The D.A.’s office is reportedly formulating an officewide Brady policy to govern the dissemination of exculpatory information to defense attorneys. The news is both encouraging and disheartening. It is encouraging because the need for better management and distribution of such information is clearly demonstrated by the Rampart scandal, where early warnings within the office of potential police perjury went unheeded. It is disheartening because the Brady case is hardly a new rule: It was established by the U.S. Supreme Court in 1963. Moreover, the current scandal comes several years after a major controversy over the office’s failure to reveal negative information about jailhouse informants called as prosecution witnesses.

Ultimately, reform here depends on a change in institutional philosophy. We need police and prosecutors--at all ranks--to accept the idea that the release of relevant but negative information can further justice, rather than assume it will only be used to subvert crime fighting. In other words, we need police and prosecutors to display more trust in the basic tenets of our legal system.

Particularly in criminal justice, we tend to think of responsibility in individual terms. For every wrong, we believe there must be someone to blame. In some sense, this may be true. But if our aim is to effect change in the criminal-justice system, we should worry more about institutional structure and culture than individual culpability. Blaming individuals just will not take us where we need to go.