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The Habeas Citebook: Prosecutorial Misconduct - Header
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When Prosecuting Crimes by Police, Feds Appear to Move Slowly

by Ed Lyon 

In November 2013, Hickory, North Carolina, police Sergeant Robert George allegedly removed a woman driver from her auto and slammed her face-first onto the ground. She required corrective surgery. 

Charged by local prosecutors in 2014, the case then languished in an unadjudicated limbo. Four years later, the United States Department of Justice (“DOJ”) obtained an indictment charging George with violating the woman’s civil rights. 

A recent Washington Post report sheds light on the process of federal versus local prosecutors and imparts an understanding of why it takes so long for the DOJ to prosecute cases. 

To begin with, the DOJ’s Civil Rights Division (“CRD”) often does not even find out about a case until after local investigations are complete. In police-involved cases, the “blue wall of silence” must be overcome as police are often reluctant to inculpate other cops in a crime. While investigating a case, the FBI has to find that the officer had the intent to violate the victim’s constitutional rights with the knowledge that the officer knew what he or she was doing is wrong. 

Secondly, the DOJ stated that “color of law” cases involving police carry a high burden of proof, and airtight prosecutions are the striven-for standard. Some factors cited are “available evidence, the number of witnesses and subjects, local procedures, and grand jury availability.” 

What factors were not mentioned are the multi-level bureaucratic daymare involved in a color of law prosecution. Upon first involvement, a CRD attorney has to prepare a detailed summary of the case, then memorize it to present to his or her supervisor just to call witnesses before a grand jury to lock their testimony into a sworn format. After the supervisor approves the request, it goes to a section chief, then to a deputy assistant attorney general, and then to an assistant attorney general for approval. 

Then the CRD attorney travels to the locality to convene a grand jury. This is often done betwixt and between ongoing local investigations. Local prosecutors may resent the Washington-sent prosecutor’s efforts to indict a local law enforcement officer so “scheduling delays” may arise, further impeding the process. 

After the grand jury hurdles are surmounted and the CRD attorney decides to seek an indictment, the same daymare is faced that was suffered through to get to a grand jury. At times, the DOJ may impound an “indictment review committee” to take one more look at the case. If an indictment is obtained after all of this wrangling, the local U.S. attorney could still buck-stop the CRD’s prosecutor from proceeding with the case. 

So, whenever one wonders why it appears that the feds drag their feet when prosecuting police, the reality is — “it’s complicated.” 



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