"Who will watch the watchers?" is a question political philosophers have asked since Plato. How can society assure that those who hold the power of the state will not be able to abuse it?
From the top down, we have the best government structure in history to "watch the watchers." Our Founders designed a structure of government with vertical and horizontal checks and balances to maximize liberty through diffusion of power. The vertical checks and balances are through federalism - 50 individual state governments checking the power of the federal government. The horizontal checks and balances are those taught in grade school - i.e. vetoes, overrides, appointments and confirmations, the power of the purse, the judicial power to interpret the law free from legislative or executive influence.
Our criminal justice system has rules that protect the accused from biased judges and juries. The most important rules are found in the Sixth Amendment - the right to a speedy, public trial by an impartial jury, to confront witnesses, and to legal counsel.
In Missouri, we have additional protections. For example, criminal defendants have an automatic right to at least one change of judge - for any reason. They also have an automatic right to change of venue in 100 of our 114 counties. In the 14 counties (including St. Louis City) with populations above 75,000, criminal defendants have the right to request a change of venue if they can show that the inhabitants of the county are prejudiced against the defendant or that the state has an undue influence.
In his confirmation hearings, Chief Justice John Roberts famously described the role of a judge. It is worth repeating here - and applying it to juries as well:
Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.
Judges are umpires of the law. Jurors are umpires of the facts. Prosecutors are different.
Prosecutors have a higher duty to American courts than ordinary lawyers. A typical lawyer's client is a person or organization. A prosecutor's client is justice itself. That's why they're required to advise criminal defendants of their rights, including the opportunity to obtain legal counsel. Prosecutors must timely disclose to defense counsel all evidence - including exculpatory evidence. And they have a duty to refrain from public comment which may increase public condemnation of the accused.
But prosecutors are not umpires. Nor should they be. They are active players in the criminal justice system, and they play on the same team as law enforcement. The cop on the street does the initial investigation and makes the arrest. The prosecutor finishes the job in the courtroom.
For most cases, this does not present a problem. But what happens when circumstances put a prosecutor and a cop on different teams? That's the scenario in Ferguson concerning the investigation of the Michael Brown shooting.
There's an inevitable appearance of bias in cases where a prosecutor must decide whether to prosecute a law enforcement officer in their own jurisdiction.
Last week, I wrote about how our own life experiences color our perception of events like the Michael Brown shooting. These perceptions are even greater when you actually know or regularly work alongside one of the people or organizations involved in the event. There's a tendency to believe those you know over those you don't.
For prosecutors, there's the additional consideration of future working relationships with law enforcement. Knowing they will have to work with the same or similar law enforcement personnel in the future, a prosecutor may be less inclined to charge appropriately. The same holds true for law enforcement personnel investigating officers within their own police department. Prosecutors and cops are humans just like us. Try as they might, investigating their own generates intractable problems of bias.
Justice requires not just the right results, but also taking the right process to reach those results. Accordingly, next session, I will introduce legislation that requires investigations and prosecutions of deadly police shootings to be immediately referred to a separate law enforcement agency and the attorney general. Presently, such investigations are already frequently transferred to other agencies. But, responsibility for potential prosecution is not routinely transferred to the attorney general.
African-American leaders in the St. Louis region have asked St. Louis County Prosecutor Bob McCullough to appoint a special prosecutor or send the case to the attorney general's office. In doing so, they've specifically alleged bias. I have no information or position on whether he's shown bias in the past; it's beside the point.
What's important now are two facts. The first is that McCullough not super-human. He's subject to the same inherent biases as everyone else. The second is that, justified or not, there's a perception of bias in the community most affected. I believe McCullough should refer this case to the attorney general or the St. Louis City prosecutor, but will pursue this legislation regardless of his decision.
I have spoken with Sen. Jamilah Nasheed, D-St. Louis about this legislation, and expect that she will file a similar bill in the Senate. Together, we can bridge the divides of party, race, ideology, and geography to pass this bill to improve our criminal justice system.
State Rep. Jay Barnes, R-Jefferson City, represents Missouri's 60th District.