To indict, or not to indict?

Prosecutors are institutionally too close to the defendants to be impartial because they rely on the police force to do their job. And this conflict of interests is not unique to the US legal system. 

Veronica Michel
31 August 2015
Reverend Al Sharpton at the Justice for All rally, 2014. Stephen Melkisethian:Flickr. Some rights reserved.jpg

Reverend Al Sharpton at the Justice for All rally, 2014. Stephen Melkisethian/Flickr. Some rights reserved.On 22 November 2014, 12-year-old Tamir Rice was fatally shot by a police officer while playing in a park in Cleveland, Ohio.

As in many other cases of police shootings, the prosecutor decided not to press charges. In an attempt to push the prosecution, on 9 June 2015, a group of community leaders in Cleveland invoked a rarely used law that allows private citizens to request that a judge determine if a prosecutor should issue an arrest warrant.  Following their filing of six affidavits, a Cleveland Municipal Court judge released an opinion finding probable cause to charge two police officers for various criminal offenses. However, he also added that he did not have the power to order an arrest without a complaint being filed by the prosecutors. 


Demonstration in Washington. Anokarina/Flickr. Some rights reserved.These latest legal manoeuvres in the Rice case offer up an opportunity to reflect on the issue of prosecutorial discretion and on the legal resources that are available to victims of police abuse or human rights violations to challenge such discretion. Prosecutorial discretion grants power to a prosecutor to decide whether to prosecute or, in jurisdictions that require an indictment by a grand jury, whether to take the case to a grand jury. This discretion has many merits (for example, increasing efficiency and reducing the backlog of cases), but in human rights cases it can certainly be problematic.

When state agents commit abuses or human rights violations, we assume that democratic states will keep their agents criminally accountable for their wrongdoings. We know, however, that prosecutions rarely happen in such instances, as the cases of Eric GarnerMichael Brown, and Tamir Rice have recently demonstrated in the US.

The reason for this is quite simple: prosecutors are institutionally too close to the defendants to be impartial because they rely on the police force to do their job. This problem is quite evident to human rights scholars, as well as victims’ relatives and their advocates. For example, Walter Madison, the attorney for the Rice family explained that, in general, police shooting cases have unfavourable conclusions for the families because of the “closeness” that exists between prosecutors and police officers.

Not Going Anywhere - Miluwakee supports Ferguson. Light Brigading:Flick. Some rights reserved.png

Not Going Anywhere - Miluwakee supports Ferguson. Light Brigading/Flickr. Some rights reserved.This conflict of interests, however, is not unique to the US legal system. Other countries also face great difficulties prosecuting police officers for wrongdoings. For instance, Professor Daniel Brinks argues that one key difficulty in prosecuting police officers for wrongful killings in Latin America rests precisely on the closeness that the prosecutors have to the defendants.  

If public prosecutors appear to have a natural conflict of interests to prosecute police officers, does this mean that impunity is inevitable in such cases? Is there a way for citizens to challenge a prosecutor reluctant to investigate and indict state agents for human rights abuses?

In the US, there are few legal resources for victims to seek a criminal prosecution if the prosecutor decides not to go forward. Victims’ rights in the country are limited to the right to be heard in the sentencing process, and few states provide victims with the opportunity to ask a judge to review the decision to prosecute or not. Ohio's statute, for instance, allows those that “have knowledge of the facts” of a crime to request a judge to determine if there is probable cause to press charges. At the end the judge, like in the Rice case, cannot really force a prosecution. Thus, even in states like Ohio, the challenge to prosecutorial discretion has virtually 'no teeth' for two reasons.

First, a prosecutor in the US may simply decline to bring a case before the grand jury. A grand jury is composed of citizens who decide, based on information presented to them by the prosecutor, whether criminal charges should be brought against a suspect or not. If the grand jury returns an indictment, the prosecutor may proceed to press charges. Generally, there are few, if any, mechanisms for victims to challenge a prosecutor’s refusal to bring a case before the grand jury.

Second, even where a reluctant prosecutor brings a case to a grand jury because of media and political influences (prosecutors in the US are generally elected officials), prosecutors have enormous influence over the outcome of a grand jury’s deliberations. Prosecutors have complete control over what evidence is submitted and how that evidence is presented. As a result, grand juries are actually quite malleable to the interests of the public prosecutor.

Eric Garner memorial. Tina Leggio:Flickr. Some rights reserved_0.jpg

Eric Garner memorial. Tina Leggio/Flickr. Some rights reserved.Timothy Lynch, for instance, recently explained that the lack of prosecutions in police shootings comes from how prosecutors can shape the outcome of a grand jury: if prosecutors "want an indictment they are going to get an indictment […]. If they don't want an indictment it won't happen."

Interestingly, however, in jurisdictions outside the US there are more robust procedural alternatives for victims or their relatives. In comparative criminal law there are jurisdictions that allow victims to be more active participants in the prosecution of a case, through what are broadly known as private prosecution rights. These rights allow victims to challenge prosecutorial discretion in different ways. The right to private prosecution allows victims or their relatives, sometimes even human rights organizations, to open a criminal investigation. Furthermore, it allows victims’ attorneys to actively participate, next to the public prosecutor, in every stage of the criminal proceedings. Private prosecutors actions are always judicially controlled. This means that a judge has to approve every request or motion introduced by the private prosecutor.

Similar to police shooting cases in the US, human rights activists in many countries have found that the main obstacle to justice is a prosecutor who is reluctant to bring charges against state agents. In contrast to the US, however, where it is available, private prosecution rights actually work as tool to challenge prosecutorial discretion, increasing the chances that state agents are held criminally accountable for wrongdoings.

Rios Montt Genocide Trial 2013. Coolloud/Flickr. Some rights reserved.

Rios Montt Genocide Trial 2013. Coolloud/Flickr. Some rights reserved.The case of Juana Mendez clearly illustrates this. Juana was an indigenous woman from Guatemala, who was raped and beaten by her prison guards while in preventive custody in 2005. The jail officials did not investigate the incident, not even after she reported the abuse to a judge, who did not believe her claim. Juana’s case only reached trial after an NGO filed a criminal complaint challenging the prosecutor’s reluctance to investigate and prosecute. The NGO also greatly improved the overall prosecution of the case providing most of the evidence as private prosecutor. In 2008, their efforts culminated in the conviction of one police guard. This was the first time in the history of Guatemala in which a serving police officer was convicted for rape.

The power of the right to private prosecution lies mostly in the power to appeal. Private prosecutors can appeal key decisions made by a prosecutor that can end a case (for example, the decision not to press charges, to dismiss a case, or to offer plea bargains). Through this power to appeal, human rights activists around the world have found ways to challenge prosecutors that are unwilling to prosecute state agents for human rights abuses.

For example, the short-lived conviction of Guatemala’s former dictator Efrain Rios Montt in 2013 was only possible thanks to the litigation efforts of private prosecutors. It was an NGO who initially brought the criminal complaint against Rios Montt in 2001. The case reached trial in 2013 thanks to the efforts of private prosecutors that kept the case alive, fighting for years the defence’s use of appeals.

Private prosecution rights have been crucial in both Latin America and Europe for enforcing human rights criminal accountability. Jurisdictions that offer citizens the right to private prosecution tend to have more human rights trials. In countries like Argentina and Chile, virtually every case against state agents for abuses committed during the dictatorship have been litigated by private prosecutors. Thus, when compared to other countries, relatives of victims in the US actually have few legal tools to challenge prosecutorial discretion and push cases of police abuse or misbehaviour to a criminal court.

Washington demonstration July 2013. Elvert Barnes:Flickr. Some rights reserved.jpg

Washington demonstration July 2013. Elvert Barnes/Flickr. Some rights reserved.When the participation rights of victims in criminal procedure are as limited as those offered by statute in Ohio, this gives victims a second bite at the process, but no guarantee that a prosecution will be initiated. Probably the strongest tool that relatives of police shootings have in the US are civil remedies: suing the state for damages in a civil court, which was the first legal step the Rice family actually took.

When citizens seek to resort to the law to make state agents criminally accountable for abuses and wrongdoings, they actually help strengthen democracy and the rule of law. In countries like the US the capacity of citizens to help build the rule of law from below, however, is limited. Without real legal tools for victims’ relatives to challenge or review prosecutorial discretion, it is quite unlikely that we will observe criminal accountability in cases of police shootings.

Seattle protest January 2015. Scottlum:Flickr. Some rights reserved.jpg

Seattle protest January 2015. Scottlum/Flickr. Some rights reserved.

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