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The
shooting of Sgt. Cornel Young Jr.
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2.17.2000 00:12:19
Case history, legal scholars offer conflicting views on independent prosecutor
 For Rhode Island, case histories and legal scholars offer conflicting views on appointing an independent prosecutor.
By TRACY BRETON
Journal Staff Writer
PROVIDENCE
-- Rhode Island Atty. Gen. Sheldon Whitehouse has the authority to appoint an independent prosecutor to investigate the shooting death of Providence police Sgt. Cornel Young Jr., legal scholars agree.
But they disagree as to whether Whitehouse should do so in this case, which involves two other Providence police officers.
Some legal scholars say it would be wise for Whitehouse to appoint an independent prosecutor -- it might, they say, be the only way to restore community faith in the legal system, especially among minority-group members.
But other legal scholars say that the appointment of an independent prosecutor could spell political suicide for Whitehouse: should the attorney general, for any reason, fire the prosecutor, he could then be accused of covering something up. These scholars also say that Whitehouse has no need to yield to pressure to bring in an outsider, since there is no apparent conflict of interest to prevent his staff from giving the case fair consideration.
The demand for an independent prosecutor -- a prosecutor from outside Rhode Island -- has come from local clergy, civil-rights groups, and Young's parents. Maj. Cornel Young Sr., who is the highest-ranking black Providence police officer, says that he joined the demand last Friday, after he heard a high-ranking officer say he believed that the two patrolmen who killed his son would be exonerated.
Thus far, Whitehouse has rebuffed the demand for an independent prosecutor.
HARVARD LAW
Prof. Alan M. Dershowitz says that ``it would be cleaner if an independent prosecutor would be brought in'' to investigate the police shooting. Such a person, says Dershowitz, ``would have more credibility'' than a local person.
``The problem with Rhode Island,'' he says, ``is it's such a small state you need someone from outside the state to get somebody really independent.''
But several Rhode Island lawyers say that they understand why Whitehouse does not want to let the case out of his control. They say that an independent prosecutor often has a particular agenda; and if that agenda conflicts with that of the attorney general, who then fires the independent prosecutor, the attorney general is accused of covering something up. Such a case can kill any chance of the attorney general's being reelected.
PROVIDENCE police Officers Carlos A. Saraiva and Michael Solitro III shot Cornel Young Jr. Jan. 28, after he emerged, with gun drawn, from Fidas restaurant, to break up a fight outside. The police say that the two uniformed officers did not recognize Young, who was off duty and in civilian clothes; believing he was a suspect, the two ordered him to drop his gun. Young did not -- possibly because he did not hear the order amid the commotion -- and his two fellow officers then opened fire.
Some members of the minority community have posed the question of whether race played a role in the shooting. Saraiva and Solitro are white; Young was black. In response to the minority community's question of how Whitehouse's office can conduct an unbiased investigation of the shooting, Whitehouse says that his staff can and will do so. He has put together a nine-member team of law-enforcement officers to gather evidence for a grand jury; six of the nine members are Providence police officers.
REGULAR PROSECUTORS, such as attorneys general, generally object to giving up any of their constitutional powers to an independent prosecutor, appointed for a special case.
Nonetheless, such special prosecutors have historically been appointed on both the federal and the state level to investigate a variety of crimes -- even, on occasion, when there has appeared to be no conflict of interest on the part of the regular prosecutor.
The history of such appointments dates back to 1875, when President Ulysses S. Grant named John B. Henderson special counsel to help prosecute the St. Louis Whiskey Ring, in which Grant's friend and secretary, Orville E. Babcock, was allegedly involved. The case involved millions of dollars of taxes being withheld from the Treasury through illegal fundraising among whiskey distillers. (Grant later fired Henderson for being too aggressive in the case.)
During the 1920s, President Calvin Coolidge appointed a special prosecutor to investigate the Teapot Dome scandal.
And Presidents Theodore Roosevelt and Harry S. Truman, acting through their attorneys general, appointed special prosecutors to investigate fraud rings and post office corruption. (Truman's attorney general, Rhode Islander J. Howard McGrath, fired special prosecutor Newbold Morris when Morris's inquiry extended into the Justice Department. Truman then fired McGrath and named a new attorney general -- who in turn named a new special prosecutor.)
Most of the time, the appointment of an independent prosecutor is announced publicly. But sometimes such appointments are not disclosed, as when, in 1996, a panel of federal appeals-court judges secretly appointed an independent prosecutor to investigate the accusation that Eli J. Segal, former head of Americorps, had played a role in an improper contribution to the Democratic Party. (The inquiry, which was never officially disclosed, ended with no charges being brought.)
The federal law that created and set forth a mechanism for appointing an independent prosecutor was enacted in 1978, in the wake of the Watergate scandal.
From 1978 through 1998, there were 20 independent prosecutors appointed on the federal level to investigate high-level officials. Although many of the investigations ended with no indictment or conviction, nearly 50 convictions did result, according to the American Criminal Law Review.
Perhaps today's best-known independent prosecutor is Kenneth W. Starr, whose investigation led to the U.S. House's impeachment of President Clinton.
Robert Bennett, who was one of Clinton's lawyers and who also defended former Secretary of Defense Caspar Weinberger in the Iran-Contra indictment, says that ``the trouble with independent counsels is that you give one case and enormous power to a single individual, and the pressures to find wrongdoing are overpowering. You don't get much credit saying that nothing wrong occurred.''
Still, The Journal has found that oftentimes special prosecutors' investigations -- both on the state and the federal level -- yield scant results. Many times the independent counsels have not pushed for indictments of the people they have investigated.
YET WHETHER or not they secure convictions, independent counsels can be very expensive. They sometimes spend years investigating matters and can run up tabs running into millions of taxpayers' dollars.
Lawrence E. Walsh, the special prosecutor who investigated the Iran-Contra affair, spent about $48 million.
And as of 1999, Starr's investigation of President Clinton's relationship with Monica Lewinsky and the Whitewater case had cost more than $47 million.
Sometimes the bills keep piling up even after an investigation is over. Independent counsel Donald C. Smaltz, whose investigation of former Agriculture Secretary Mike Espy cost more than $21 million, is still running up a tab, more than a year after a federal jury cleared Espy of criminal charges.
James Q. Wilson and Joan Petersilia, in their book
Crime,
assert that ``more troublesome to many than the cost is the fact that the independent prosecutor conflicts with the Constitution's creation of three and only three separate branches'' of government.
But according to a 1982 Brooklyn Law Review article, state courts -- dating back to 1862 -- have ``on numerous occasions, appointed special prosecutors in situations where the exercise of prosecutorial discretion by the executive branch could appear to present a conflict of interest. These appointments have been held to comport with the separation of powers.''
IN 1998,
Louisiana Atty. Gen. Richard Ieyoub appointed a special prosecutor to investigate a judge, Patricia Hedges, who was later indicted on charges of extortion, public bribery, and malfeasance in connection with cases she had handled. The charges included allegations that she had reduced a sentence for a man convicted of aggravated bribery with the understanding that he would contribute money to her campaign.
The district attorney in the parish where the alleged crimes took place had been at odds with Judge Hedges since she had defeated a candidate he'd endorsed, so Attorney General Ieyoub got a district attorney in a different parish to handle the investigation as a special prosecutor.
In Missouri last October, a special prosecutor announced that he would not file criminal charges after investigating claims that witness perjury and a cover-up by prosecutors had led to the conviction of a man on death row.
In another case, in December, a special prosecutor was named in Denver to investigate the circumstances surrounding the death of a man who was killed by SWAT team members in a ``no-knock'' drug raid. The appointment was made after it was disclosed that an investigator in the Denver district attorney's office was the brother of one of the SWAT officers. As in the Louisiana case, a district attorney from another part of Colorado took over as the prosecutor for the Denver D.A.
Earlier this month, this special prosecutor exonerated the SWAT team members who shot and killed the man, saying that they were justified because he had threatened them with a gun and had fired shots. But the special prosecutor filed perjury charges against the patrolman who had obtained the search warrant for the raid, saying the false statements resulted in the SWAT team members' raiding the wrong house.
Such cases of blatant conflict of interest clearly illustrate the need for an independent prosecutor.
But sometimes special prosecutors are appointed after investigations by regular authorities have failed to bring charges.
In Bismarck, N.D., last year, after the state's attorney general declined to bring charges, a group of residents petitioned a judge to convene a grand jury to investigate whether to indict a county sheriff who had been accused of supplying alcohol to minors and making sexual advances. The sheriff denied any wrongdoing.
A Minot, N.D., lawyer was then appointed by the judge as the special prosecutor to present the case to the grand jury. In December, the grand jury decided not to bring any criminal charges against the sheriff.
According to legal scholars, leaders in the minority community, and civil-rights activists, it is not unusual for the public to question whether cases involving fatal shootings by police officers will be investigated in the same way that other crimes are.
According to The San Diego Union-Tribune, experts estimate that less than 1 percent of officers involved in shootings face prosecution.
And over the past few years, several highly controversial shootings by police officers around the country have prompted national debate over whether the police can be trusted to investigate their own, and whether state prosecutors -- who are by nature pro - law enforcement -- can look at the police in an unbiased way.
San Diego County records show that since 1976 there have been 433 shootings by police officers, 222 of them fatal, and that only 3 of the officers involved in these cases were charged with a crime. Two of the three were acquitted; the other case was dropped before trial.
``We find that prosecutors by and large are hesitant to indict police officers for one very basic reason: they're essentially on the same team,'' says William Harrell, executive director of the New York City - based National Police Accountability Project -- an undertaking of the National Lawyers Guild, an organization of civil-rights, defense, and immigration lawyers.
Groups such as Amnesty International and the American Civil Liberties Union say that independent prosecutors should be hired to investigate police-shooting cases. Last June, during a Justice Department summit attended by President Clinton, Atty. Gen. Janet Reno, and law-enforcement and civil-rights activists, a panel recommended that cities use independent prosecutors to investigate shootings by police officers.
``With an independent prosecutor,'' said Harrell, ``you remove inherent institutional bias that exists between prosecutors and police. There's a cultural reluctance on the part of prosecutors to bring charges against police. It's based on interpersonal relations; prosecutors and police are working together on a daily basis. There's also a practical obstacle'' that prevents unbiased investigations,'' said Harrell. ``Prosecutors have to rely on the police, who are their investigators, so there's a built-in conflict of interest.
``It's essential,'' says Harrell, ``to have independent prosecutors appointed in these police-shooting cases -- someone who doesn't have to depend day in and day out on having a good working relationship with the police.''
But regular prosecutors disagree. They say they are not reluctant to prosecute police officers who break the law. And they say that outsiders lack the expertise of the local prosecutors. Nor do they have to answer to anyone after rendering a decision.
Police officers have been indicted for a host of offenses, including larceny, burglary, perjury, drunken driving, and civil-rights violations, without the appointment of a special prosecutor.
A growing number of lawyers, legal scholars, and lawmakers from both parties say that the independent-counsel law should be overhauled or abolished. In the wake of the controversial Starr investigation, Congress has been loath to renew the law authorizing the appointment of special prosecutors to investigate high-ranking U.S. government officials. The independent-counsel law officially died last June, but five investigations that were going on at the time -- including Starr's -- were allowed to continue, under a grandfather clause.
Some lawmakers have introduced bills to revive the law but modify some of its controversial provisions. As yet, though, none of these bills has passed. For now, whether to appoint an independent counsel, whom to appoint, and the areas of inquiry will all be dictated exclusively by Attorney General Reno.
Providence lawyer John A. MacFadyen, who specializes in criminal appeals, says that ``the vast majority of lawyers have come to find that the appointment of independent prosecutors is a catastrophe. The sense is that the individual lawyers who get appointed have a mission -- Ken Starr, for example. How and why they get appointed have usually had strong political overtones.''
``It's very difficult,'' continues MacFadyen, ``to spend a lot of public money and come back and say, `It's a gray area -- I'm not going to charge.' There's a built-in bias when you hire a person to investigate a single matter -- at some level there becomes pressure on them to justify their hiring with the bringing of charges.''
As for the hotly debated issue of appointing an independent prosecutor in the Young case, MacFadyen says that staff prosecutors in the attorney general's office could every day be accused of having a conflict of interest, because they are often put in the position of having to defend police officers who are accused of illegally seizing evidence and coercing confessions. But, says MacFadyen, no one calls for independent prosecutors on a routine basis.
``Once you decide to appoint one in one case,'' he says, ``where do you draw the line?''
The lawyer poses a philosophical question: What makes the Young shooting warrant the appointment of a special prosecutor ``and not Derick Hazard?''
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