Who Will Protect Us From the ‘Protectors’?

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by William L. Anderson

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In a recent Wall Street Journal article, prosecutor Glenn McGovern writing about the recent shooting of two prosecutors in Texas asked, "Who will protect the protectors?" He wrote:

Working to make America less dangerous can be dangerous. The shocking murders of justice-system officials this year in Texas and Colorado are only among the most recent grim reminders of an everyday threat.

The article brings up an obvious question: Does anyone feel protected by police and prosecutors? Better yet, it seems appropriate to ask: Who will protect innocent citizens from the predations of police and prosecutors hellbent on framing innocent people for crimes, sometimes even "crimes" that never were committed?

This is not a superfluous question. The vast majority of people who have any interaction with an on-duty police officer do so under duress. Either they are stopped for a traffic violation or are being arrested or are being ordered around. In extreme situations, they are on the receiving end of abuse, either during a home invasion (called a "no-knock raid") or an unpleasant encounter on the street.

As I noted in a previous article, the murders in question seem to have been professional killings, not the acts of someone angry they were put into jail or put on trial. The perpetrators, one supposes, are tied to drug gangs which are a creation of the War on Drugs, something that has benefitted and enriched both police and prosecutors. If their Sugar Daddy turns sour, it is not due to a lack of protection of the "protectors," but rather the simple fact that the drug war is out of control.

When they come to court, cops often lie under oath (they call it "testilying") and prosecutors often withhold exculpatory evidence, lie to jurors and judges, and engage in false and malicious prosecutions. And for all of the publicity that wrongful prosecutions and rogue prosecutors like the infamous Michael Nifong receive when sanctioned, it is extremely rare for prosecutors to be disciplined for misconduct and no prosecutor in U.S. History ever has gone to prison for breaking the law in pursuit of a criminal case even though Nifong and many others have regularly trashed the law and clearly engaged in illegal conduct that breaks criminal statutes.

(I should add that Nifong committed a number of felonies during the lacrosse case, including fraudulent use of thousands of federal dollars, lying to a grand jury, ordering his investigator to strong-arm witnesses into changing their stories, and lying under oath during his North Carolina State Bar hearing. He did serve one day in jail for lying to a judge about hiding evidence, but neither state nor federal authorities decided to conduct criminal investigations into his conduct. His losing the ability to practice law was mild compared with what the three lacrosse players were facing — life imprisonment — had they been convicted in what most likely would have been a kangaroo court had they gone to trial.)

I would put the questions to readers: Has any reader ever been protected by a police officer? Has any reader ever had a positive experience with prosecutors? Has any reader ever had a negative encounter with the police? Has any reader ever been wrongly prosecuted?

While McGovern claims, "Men and women responsible for seeking justice within the courts and ensuring public safety are increasingly becoming targets," he uses some shaky statistics. First, he claims the following:

Each year in this country, well over 100 police officers are killed in the line of duty. Those who enter such careers do so fully cognizant of these dangers.

That is true, but what McGovern does not say is that the vast majority of officers killed lose their lives in car accidents and other accidents; they are not often gunned down by criminals seeking revenge and lose their lives in shootouts in very few situations. In fact, police work is statistically safer than most other occupations. Radley Balko writes:

It’s been a little more than a year since media outlets and police organizations first started reporting about a mounting “war on cops.” Law enforcement officials and commentators blamed budget shortfalls, anti-government sentiment, gun ownership and other causes for the rising violence against police.

We’re now about halfway through 2012, and this year is on pace to be the safest ever for America’s police officers. Oddly, no one is reporting it.

Fifty officers have died on duty so far this year, a 44-percent decrease from last year, according to the National Law Enforcement Officers Memorial Fund (NLEOMF). More remarkably, 17 have died from gunfire, down 55 percent from last year. (21 died in traffic accidents, the remaining 12 in various other incidents.) If the second half of this year follows the first, fewer officers will have died on duty this year than in any year since 1944, a time when there were far, far fewer police officers.

In other words, contrary to what McGovern would have us believe, the "war on cops" is nonexistent. To be honest, it is more likely that an innocent person will be shot and killed by a cop (who usually will face no legal sanctions for the killing) than it is a cop being gunned down. (One thing to remember is that the statistics do not differentiate between a police officer being shot by fellow officers or by someone else with hostile intent.)

If there is a "war," it is a government/police war on ordinary people. Ever since the Ronald Reagan administration began to sell surplus military gear to local police departments, the militarization of the police has grown exponentially. Nearly every police force has a paramilitary SWAT team, even in localities where there historically has been no violent crime.

Each year, the horror stories of police raids gone badly are brought to our attention — and each year, the number of police home invasions increases, and this year there will be close to 80,000 such "raids," often done against people for simple drug possession (and many don't have drugs or any other illegal items in their homes). As for "protectors," when police engage in these raids, they are protecting no one and certainly any legal doctrine that says police can invade anyone's house for whatever reason they want is not a doctrine that "protects" the general public.

(Even when police invade the wrong house or kill an unarmed person or destroy property needlessly, they rarely are disciplined and in almost all cases, the police departments do "internal investigations" and — not surprisingly — declare themselves not to be at fault and all of their actions, no matter how egregious, to be fully justified.)

At least one can sue police departments and the municipalities that employ them. Prosecutors, both state and federal, enjoy absolute immunity from lawsuits regardless of their misconduct, and often the misconduct can be personally destructive:

In 10 cases identified by ProPublica, defendants convicted at least in part because of a prosecutor's abuse were ultimately exonerated, often after years in prison.

Shih-Wei Su was incarcerated for 12 years on attempted murder charges before a federal appeals court cleared him, finding that a prosecutor had "knowingly elicited false testimony" in winning a conviction. The city (New York) eventually paid Su $3.5 million. The prosecutor received nothing more than a private reprimand.

Jabbar Collins served 15 years in prison for a murder he didn't commit before his conviction was thrown out in 2010; Michael Vecchione, a senior Brooklyn prosecutor, had withheld critical evidence during trial. Collins has filed a $150 million lawsuit against the city. No action has been taken against Vecchione.

Last July, two men filed lawsuits for a combined $240 million against the city for wrongful convictions that a state appeals court found were won in part because Manhattan prosecutors had withheld evidence. The men served 36 years in prison, collectively. The prosecutor, who long ago left the district attorney's office, has not been publicly disciplined.

The lack of discipline for prosecutors that have broken the law is hardly limited to New York City. In 2010, Tonya Craft was put on trial in Catoosa County, Georgia, on what clearly were trumped-up charges of child molestation. The prosecutors, Christopher Arnt and Len Gregor, had a number of illegal (and secret) meetings with the judge, Brian House, who did everything he could to keep out exculpatory evidence.

However, despite the massive misconduct by Arnt and Gregor (which I have outlined many times in my own blog), the jurors quickly saw through the lies and acquitted Craft. When I spoke to the office of the Georgia State Bar that disciplines attorneys, I was told in no uncertain terms that the Georgia Bar considered what clearly would be illegal conduct by prosecutors to be just "doing their jobs." The assistant to the director remarked to me, "She was acquitted, wasn't she?" I replied that Craft and her family had to spend a million dollars to defend herself, but the Georgia State Bar official was unmoved. When I asked her if suborning perjury and lying during closing arguments (deliberately misrepresenting the testimony of an expert witness for the defense) constituted “doing their jobs,” she hung up on me.

And Georgia and New York are not unique. They are the system. Understand that individuals who have been wronged cannot seek legal satisfaction because the courts have given prosecutors and judges absolute immunity, and at the same time, governments refuse to take action against their own, something that should surprise no one.

Police and prosecutors are fond of claiming they "protect" the public from "the bad guys." There only is one problem with that; for the most part, police and prosecutors are the "bad guys," and the government has said that we are not permitted to protect ourselves from these predators. As for a so-called War on Cops, there is a war, but it is not on the cops or prosecutors. No, these people are at war with Americans who are not politically or legally-connected.

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute. He also is a consultant with American Economic Services. Visit his blog.

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