Monday, November 25, 2013

The Police Officer's Conundrum

There is a difficult dance that we prosecutors perform with the police. One would think that we are on the same team and that it would be easy to get along with those on our team. I see officers on a daily basis and have become friendly with many of them outside of my employment. I have great respect for the job that they do.

But it is a different job than mine. A police officer must protect and serve the community. He/she has great discretion in how to conduct an investigation and whether to arrest a person, write a ticket, or come to an equitable resolution. The prosecutor's job is to do justice, and with that we are vested with prosecutorial discretion (more on how a case moves from arrest to prosecution here).

Years ago in my county, the police force and the district attorney's office had a conversation about the investigation of homicide cases. The DA's office was sick of not knowing about a murder arrest or investigation until it happened. The police department did not appreciate the speed it took us to investigate those cases. The police agreed to use the DA's office as a resource during the investigation and discuss the case with the homicide chief before making an arrest.

Over the decades that passed, this discussion has now morphed into a necessity prior to making an arrest in a homicide case. The DA's office now requires the detectives to seek clearance for the arrest before one is made. While technically not a legal requirement, it does make the relationship smoother and avoids the dangerous and embarrassing situation of the DA's office dismissing a homicide arrest.  The problem though? What about when the police believe they have a viable case, but the DA's office does not?

The police only require probable cause to arrest, while the DA's office will not prosecute cases that do not have a chance of conviction. These are not the same thing. Probable cause requires a police officer to have reliable information providing the input necessary to arrest. That reliable information does not always man it would be reliable or persuasive at trial though.

Take this set of facts: The victim picks up the witness in the victim's car. They agree to go buy drugs and meet the drug dealer at a location. The drug dealer gets in the rear seat, and then proceeds to rob the driver and passenger, accidentally shooting the driver to death. The drug dealer runs away and the witness is unharmed. 

If the witness can identify the rear seat killer with 100% certainty, the police will have probable cause to arrest him for felony murder (committing murder during the course of a felony, whether intended or not). But can this set of facts sustain a conviction? A one-witness identification from an admitted drug user? Rarely is there a quick arrest in a homicide case. The police need to investigate and gather evidence. What happens if this case never gets better though? There's no physical evidence at the scene, no phone records exist like a cigarette butt left?  It is solely the word of the witness and that is the only evidence that will ever exist.

Should the DA's office give it a shot? Does justice for the victim demand an arrest and prosecution? Does justice for the defendant and society prohibit it? The police have probable cause to arrest in this scenario. The DA's office will provide guidance and tell the officers what other pieces of investigation need to occur. What if we never consent to the arrest?


  1. Wait, aren't you going to answer your own question?

    I admit to watching shows like 'Law & Order', where we always see the cops saying, "This guy's a slimebag, nail the bastard!" and the ADA saying, "Bring me more" or something like that. How do you handle those cases where you're pretty sure you won't get a conviction?