Almost Impossible to Indict a Cop
Chase Madar tells Paul Jay that it’s not just an institutional problem, that the law itself protects police abuse
PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Baltimore.
As we’ve been saying on The Real News Network in relation to Ferguson and in general, the role of police is rather obvious: police are there to enforce the law. Well, what are those laws? Well, essentially those laws protect people that own stuff, and the more you own, the more protection to get. And if you don’t happen to own any stuff and you’re poor and you’re desperate, you’re likely to have to try to get stuff to live, and sometimes that means breaking those laws. So we ask police to enforce that, and that often means we want the police to be a hammer, because if you’re living in desperate conditions and you’re poor, you often act out desperately.
And as a society, we’ve told cops, you can wear a gun. In fact, we’ve said the state, through the police, have a monopoly on violence–legal violence, that is. And there’s supposed to be some check on that. And the check is: cops have to be reasonable in the use of force. And if they’re unreasonable and they use excessive force, they should be charged, we say, criminally. It’s not enough just to have some internal disciplinary process.
But how often do cops get charged criminally for police brutality, and even more importantly, when police kill people? Well, how often across the country does that actually happen? How easy is it, or how difficult, to indict a cop?
Now joining us from New York is Chase Mader. Chase is an attorney, an author in New York. He writes for The Nation, Le Monde diplomatique, The London Review of Books, The American Conservative, Al Jazeera. Most recently he wrote the article in The Nation “Why It’s Impossible to Indict a Cop”.
Thanks very much for joining us, Jason.
CHASE MADAR, ATTORNEY AND AUTHOR: Happy to be here.
JAY: So give us some of the numbers. First of all, how many police killings are there? Let’s put the Ferguson thing in context. How many times a year, normally, do cops kill somebody?
MADAR: Well, last year, according to FBI statistics, there were 461 justifiable homicides committed by police around the country. That’s probably a lowball figure and undercount, because our federal government does not think this is significant enough a problem, an issue, that they should keep a real detailed tally of this. And so this was the highest tally of police shootings, fatal shootings of people for very long, for about 10, 20 years. And this is also coming at a time when the murder rate in general, the homicide rate, has been steadily sinking since the early ’90s.
JAY: So how many of these 400-some-odd cops that killed people justifiably? That means none of them were charged. How many cops were charged?
MADAR: Well, we don’t even have a good statistic on that. I mean, probably none. Police get charged very, very infrequently criminally for any kind of infraction. And the more serious the infraction, like homicide, the even less likely they are to get charged, even to get indicted first, and certainly to be convicted later.
JAY: So why is it so difficult to indict police? It’s hard to imagine that there isn’t some evidence in some of these cases, at least, that at least should go to a trial if not a conviction.
MADAR: Yeah, absolutely. Well, the reason is quite simply both the institutions and even the laws themselves heavily favor the police whenever a police commits an act of violence against any citizen, any civilian. Start with the simple fact that it is prosecutors who of course do the prosecuting, and prosecutors depend on a close relationship with the police. They see themselves as part of the same team as the police. And they are reluctant to rock that boat, to poison their relationships with the police, which is what will surely happen if they come down hard on an individual police officer.
JAY: Yeah. Chase, I had a friend who was a prosecutor in Chicago, and they used to–whenever they won a case, convicted someone, they would actually cut the person’s tie and pin it on the wall behind the desk, and they would compare how many ties they had up. It was all a conviction numbers game, which implies you have to collaborate with the cops to get your conviction. It’s not that you’re necessarily after the truth of the situation.
MADAR: That’s right. And we have a huge exception in that numbers game. You want as few cops convicted, or even prosecuted or charged, when you’re prosecutor.
And you see this–I mean, it’s almost obscenely personified in the St. Louis County prosecutor Bob McCulloch, whose father was a police officer, who in the past has really acted more like a defense attorney for police officers rather than a prosecutor. And what he did by forcing a grand jury to study all of the evidence and hear witness statement after witness statement, including very long testimony from the police officer, a potential defendant, Darren Wilson, is virtually unprecedented. And all of this to a large degree was so that the DA could insulate himself from the politics of this case, so he wouldn’t have to be the unpopular guy in the DA’s office in St. Louis County who came down as a cop. This allowed him to just say, okay, well, it was the grand jury that did it, not me.
JAY: And even The New York Times–and to some extent The Washington Post–have commented on the extent to which the process was manipulated. We haven’t had time to read the whole transcripts, but they’ve got lots of money. They can get people to do it. And they’ve written that the interrogation of the cop in front of the grand jury was extremely sympathetic, without any challenge of significance, whereas anyone who was a witness that disagreed with the cop’s narrative was grilled and discredited by the state’s attorney, by the prosecutor. And it should actually be the other way around. He’s supposed to be trying to get a conviction. That’s why he calls these. If he didn’t think there was grounds to convict at all, he shouldn’t even have called the grand jury.
MADAR: Yeah, absolutely. And, sadly, this is pretty much what one would predict if you know about how prosecutors work, if you know how our criminal justice system works.
And even the rare event had this gone to trial, had there been criminal charges filed against Darren Wilson, I think sad truth is he probably would have gotten off, even though his story, his own testimony is very hard to believe–I’m not saying 100 percent that it’s wrong, but it’s really hard to believe his version that Mike Brown came at him, quote, like a demon, like some kind of pro-wrestler. It just–a real prosecutor should have had a chance to pick at that, to challenge it, to question it.
JAY: Yeah. Even the incident at the car, this was a big piece of it, because I think it’s because they say that Brown attacked the cop in the car that laid the grounds for him thinking that he would be attacked again on the street, but that you could argue the evidence a completely opposite way, that Brown could have been leaning in the window, and he could of been grabbed and pulled into the car. Of course, we don’t know because there’s no trial and there’s no chance to impeach any of these witnesses.
MADAR: Yeah, absolutely, and that’s exactly why there should have been a trial in this casee, even though I think the laws themselves that we have in our country are very much designed to protect police, to shield them from liability. We all like to think that the law is fair, that the law might even be on our side. But when it comes to a police officer versus civilians, the law bends over backwards to grant police an incredible amount of leeway, flexibility, and discretion as to when they use force, even deadly force.
So I just want people to know that this isn’t just a matter of institutions and institutional relationships, though it is that. It is also baked into the laws themselves, and not just in Missouri, but really nationwide. Supreme Court jurisprudence on this issue is really lousy from the point of view of people who aren’t cops, from the point of view of citizens, civilians.
JAY: Well, it goes back, I think, [to] what I was saying in the beginning, that the real fact of this is or the essence of this is is people that own stuff, the elites in the country, they far more want the cops to be feeling free to wield force than they’re concerned about the abuse of that force, so that they need to protect the cops unless it’s completely egregious. There’s just such obvious number of witnesses that it’s impossible. Okay, then maybe even the Department of Justice will step in and say, okay, you, this police force, you’re risking another Rodney King across the country, and you’re going to have to get reform, because we don’t want you triggering some mass rebellion. So, yeah, we’ll pull you back from your worst excesses. But in day-to-day policing, Congress, the president, the state in general, they want the police to be a–feel free and not hesitate.
MADAR: Yeah. It’s disturbing how–well, how uncontroversial this decision is and this whole problem is in a lot of parts of the United States.
I mean, let’s talk about the federal government, too, a little bit. There was a lot of hope that the Department of Justice in Washington might swoop in and file civil rights violation charges against Darren Wilson. But they’ve backed off from that just because, again, the laws are heavily in favor of the police officer, and the DOJ really only likes to take cases that they think they’re going to win. They didn’t think they were going to win this one, a criminal conviction, so they’ve backed off.
What I’m a little more optimistic about is when the Department of Justice sweeps in and goes into an entire Police Department–say, Albuquerque, which has had a rash of fatal police shootings, often of unarmed civilians, over the past few years, and tries to do root-and-branch reform, restructure it, force new training policies, new regulations about when officers should be touching their weapons, much less taking the safety off and using them. These don’t involve any punishment for individual officers, even ones who have behaved really badly.
JAY: Even in this case, why didn’t this guy have a taser? He says it was big and complicated or too difficult, so he didn’t carry one. I mean, how can that not be in itself actually a violation of law, not just some code of practice? I mean, he could have tasered Brown in the street. He didn’t have to shoot him, even assuming Brown even was threatening, ’cause that’s clearly in dispute.
MADAR: Yeah, even assuming that. I mean, it’s no excuse to say that it’s big and complicated. If a taser is too complicated for you, then obviously you should not be a patrol officer. I mean, it’s really that simple.
JAY: There’s simply no consequence. We have the same thing in Baltimore. We just had a town hall here a few days ago at The Real News about should the community control the police. And the idea of a community police review board, that it only makes sense, first of all, if you have the right to hire and fire the police chief and hire and fire policemen, so at least there’s some real-world consequences even if the state’s attorney almost never lays a charge–they occasionally do, but it’s very, very rare. But even that doesn’t work unless you have an aroused population that demands that the review committee or the police services board actually does his job.
MADAR: Yeah. I mean, these civilian review boards, they sound like a great idea, and I would like to see one that actually works someday, that does keep close control, real control, and real authority over the police. But as you said, that’s only going to work if there is a certain degree of mobilization and people taking responsibility and taking charge over their Police Departments.
And I’m encouraged by the demonstrations that we’ve seen all over the United States in the past couple of days. I hope that continues. But it should not really be a radical idea that police exist to serve the community rather than the other way around. I mean, these are public servants. Their job is to work for us. They should be under firm civilian control, without a doubt.
JAY: Well, the thing is: you have to define us. They do work for the community. They work for the community of people that own stuff.
MADAR: Yeah. I mean, I want to question that a little bit. To a degree, that’s certainly right. I don’t see how the capitalist rate, the corporate rate of profit is really well served by riots in Ferguson, by police shootings that are going up even as violent crime goes down. And in this sense I’m a little more optimistic, because even if our whole economic system is with us to stay for the time being, for the seeable future, I do think that real changes in policing and in police departments can at least bring down the level of gratuitous police violence and police brutality.
JAY: Yeah, I agree with you. I think some of the worst excesses could be mitigated under today’s conditions. But I’m not suggesting that riots are good for the rate of corporate profit. What’s good for the rate of corporate profit is high unemployment, which keeps wages down, and people willing to work for minimum wage and sometimes below minimum wage if they’re undocumented. Having big subsections of impoverished people willing to work for almost anything, that is good for certain kinds of corporate profits. I mean, frankly, in the long run, if people are really rational, that’s not even good for corporate profits. Everyone–there’s actually–the whole economy would do better if people were paid better. But still that is the mentality. So, yeah, it’s keeping the lid on the poor is their role in these types of areas. I mean, you don’t see Baltimore police beating the hell out of people in–. And, like, we have an area in Baltimore called Roland Park, which is fairly wealthy, white, and it wasn’t that long ago black cops weren’t allowed to arrest people in Roland Park. They actually had to call a white cop to come and do the arrest.
MADAR: Well, but let me tell you a little bit what I think might work in the short- to medium-term to get the police back under control. (When I say back, that assumes they were under control earlier, which is really debatable.)
JAY: Yeah, that’s a stretch.
MADAR: One thing that’s come to light is the kind of petty constant over-policing for fines, minor infractions, traffic violations, and other things that get punished with a constant stream of fines. And this is a huge way that the city of Ferguson and many other municipalities in St. Louis County get revenue. It’s often the second-largest revenue stream.
JAY: And wasn’t there something like 20 percent of the municipal revenue in Ferguson?
MADAR: Twenty percent in Ferguson, and even higher in some of the neighboring towns that are similar, that we need to look at this and think, is this really the best way? Because it does seem to a lot of people in Ferguson and elsewhere that the police are treating them as exploitable cash cows that are just there to be milked for their money. And so it’s a constant feeling that many people have in Ferguson and many other places in the United States of just being preyed on.
JAY: Add to that the incarceration industry.
MADAR: Yeah, sure. And the whole incarceration business of mass incarceration, this is a factor of the over-policing that I just talked about. We do have higher violent crime than in many comparable countries, but our sentences for people who are convicted are much, much, much higher. A lot of this–but really just about 20 to 25 percent of this is nonviolent drug offenses from our war on drugs that is been a clear failure. But it’s also how we come down so hard on even young people, charging them as adults. And when we charge adults, it’s–the sentence is often much, much higher than in other nations.
JAY: Alright. Thanks very much for joining us, Jason.
MADAR: Thank you.
JAY: And thank you for joining us on The Real News Network.
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