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Is It Time for a Special Prosecutor?

Some academics and policing experts question whether OPD and the Alameda County DA can properly investigate law-enforcement misconduct.

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In theory, the Oakland Police Department and the Alameda County District Attorney's Office are supposed to investigate allegations of misconduct and hold law-enforcement personnel accountable for their actions. But recent incidents in both departments have raised doubts about the abilities of each to do so, which raises the question: What happens when local law enforcement's checks and balances fail? Some academics and policing experts think it is high time for California to create a special prosecutor's office.

For OPD, the problems within the department have been well documented. In recent weeks, OPD admitted, for example, that it couldn't properly investigate its own officers' conduct during violent clashes last fall with Occupy Oakland due to a high volume of complaints and serious conflicts of interest.

The Alameda County DA is also under the microscope after the Oakland Tribune revealed earlier this month that Deputy District Attorney Danielle London was indefinitely suspended for ordering sheriff's deputies to surreptitiously record a defense attorney's conversation with her client at Santa Rita Jail. Teresa Drenick, a DA spokeswoman, said she could not comment on London's suspension, citing personnel confidentiality issues. Drenick also declined to comment on whether the investigation is limited to London's case or if a broader probe is underway.

Professor Samuel Walker of the University of Nebraska-Omaha, a national expert on police accountability, has closely monitored OPD's difficulties under the federal consent decree. He believes California's size and large law enforcement community warrants a permanent special prosecutor to handle investigations when police departments and DAs fail to do so. "A special unit in the state Attorney General's office is absolutely called for," Walker said. He added that the failure to properly scrutinize law enforcement is "a symptom of management dysfunction that endangers the civil rights and safety of the community" and must be taken seriously. "Usually, special prosecutors are pretty episodic and rare," said Walker, who will speak further on the matter at a May 19 meeting of the ACLU of Northern California's Paul Robeson chapter. "However, it's clear that in California something more is needed."

Eugene O'Donnell, a former New York Police Department lieutenant who teaches criminology at John Jay College of Criminal Justice at CUNY, believes a permanent independent entity would combat many of the conflicts of interest that arise when police and prosecutors are called on to suss out and punish wrongdoing amongst their own. "There are so many issues of accountability with district attorney's offices that a special prosecutor would be better equipped to deal with," O'Donnell said.

Attorney General Kamala Harris' office did not return requests for comment on a special prosecutor.

Special prosecutors are currently being used in a number of high-profile criminal cases, such as the murder of Trayvon Martin in Florida, and the 2004 death of a Chicago man involving a nephew of then-Mayor Richard Daley. In California, special prosecutors have been appointed by the Attorney General's Office over the decades to investigate a variety of official corruption and law enforcement misconduct.

In the aftermath of the Los Angeles Police Department's Rampart scandal twelve years ago, current UC Irvine law school dean Erwin Chemerinsky issued a report for the LA Police Protective League, recommending aggressive independent reviews and the appointment of a permanent special prosecutor for police misconduct. Chemerinsky's recommendation, however, was never acted upon by the LA DA.

Chemerinsky believes a standing office for law enforcement misconduct is necessary to supersede the tight relationship between police and prosecutors. "District attorneys are so loath to investigate and charge the police they work with every day," Chemerinsky said in an interview. "It's naïve to think that the district attorney is going to be that external oversight for the police."

In 1973, the New York state legislature and Governor Nelson Rockefeller created the Special State Prosecutor for the New York City Criminal Justice System on the recommendations of the Knapp Commission, an independent body convened to root out the systematic police corruption exposed by NYPD officer Frank Serpico two years earlier. The office, which was headed by a gubernatorial appointee, pursued cases of alleged police brutality, official corruption, and prosecutorial misconduct. But in 1990, then-Governor Mario Cuomo and the New York state legislature eliminated the office because of a supposed lack of funding. O'Donnell, however, recalled that there was antipathy toward the office from local district attorneys, who viewed it as overreaching. Part of the problem, O'Donnell said, was the issue of how appointees in the office could insulate themselves from political pressure. "There was always the question of what the appointee owes to the governor, and how they were going to be accountable to the public," O'Donnell said.

But the office did have its defenders: In a 1993 letter to The New York Times, John Kenney, the chair of the New York City Bar Association's Committee on Criminal Law, argued that the special prosecutor's office should be reinstated because of a backsliding in NYPD discipline against officers accused of brutality. Kenney cited a decline in punishment for officers accused of wrongdoing — in 1988, six police officers were fired for police brutality and nineteen were let go for official misconduct, compared with just one firing for misconduct and brutality in 1991 — as evidence that without external pressure and accountability, the police would not police their own. "It is evident that reduction in disciplinary actions parallels the abandonment of the special prosecutor's office."

There appears to be parallels in Alameda County's criminal review of police shootings in recent years. District Attorney's investigative reports on OPD officer-involved shootings obtained by the Express also raise questions about the DA's willingness to hold local police accountable. Investigations of four fatal shootings between 2007 and 2008 — Andrew Moppin-Buckskin, Mack Woodfox, Gary King Jr., and Jose Buenrostro — have yet to be completed. The latter three deaths resulted in $2.65 million in settlements with the City of Oakland. On average, DA's investigators complete their reviews of officer-involved shootings within a year of the incident.

O'Donnell, the former NYPD lieutenant, said that leaving police shooting investigations open for years represents an unwillingness on the part of the district attorney to properly review the matter. "It's the bottom of the barrel when you abdicate responsibility on a police shooting," O'Donnell said.

The Moppin-Buckskin and Woodfox shootings, in particular, show the need for independent scrutiny of Alameda County law enforcement. Officer Hector Jimenez shot and killed both men, and was terminated by OPD after a firearms review board found he violated department policy in the Woodfox incident. However, Jimenez appealed his dismissal through a labor arbitrator and was reinstated in early 2011 with back pay, despite both shootings not being resolved. Officer Robert Roche and Sergeant Patrick Gonzales, the cops involved in the Buenrostro and King shootings, respectively, have been involved in multiple shootings since, and played major roles in OPD's response to Occupy Oakland last fall.

The Alameda District Attorney also is a notoriously insular institution. While the position of DA is ostensibly elected, there has not been a contested election for the office in living memory, dating back to Earl Warren's appointment in 1925. Current incumbent Nancy O'Malley was appointed in 2009 after her predecessor Tom Orloff resigned following the murder indictment of BART cop Johannes Mehserle. Orloff himself was elected with no opposition in 1994, and ran unopposed in 1998, 2002, and 2006. Likewise, O'Malley faced no opposition in the November 2010 election. By contrast, San Francisco DA George Gascón faced off against a half-dozen candidates two years ago.

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