Van Jones, the former White House “czar” of something or other turned smooth-talking racialist warrior on CNN’s “Cross-Fire” and various TV panels, was arguing for frank racial dialogue on ABC’s “This Week With George Stephanopoulos,” in the context of the protests over the Ferguson and Staten Island police grand jury decisions. Sounding reasonable as he often does, Jones then said that what should be an area of agreement is the need for a special prosecutor whenever police misconduct is before a grand jury, noting that it was an “obvious conflict of interest”for prosecutors who work with police as a core element of their job.
I have addressed this argument before, but let me be clearer. This is a conflict of interest that a competent and ethical prosecutor should acknowledge and be able to deal with as the legal ethics rule require. The prosecutor should get a waiver from his or her client—not the victim’s family, but the government the prosecutor represents—and honestly assess whether the fact that the police serve the same client will prevent the prosecutor from being fair and objective. If the answer is yes, then the prosecutor must recuse, but I see no reason why the answer should be yes, if the prosecutor is ethical and worthy of the position.(Jones and other advocates for this “solution” have a bias against prosecutors, whom they view as presumptively unethical.)
Theoretically, every case in which an officer’s credibility determines whether a citizen should be charged poses the same conflict: it is endemic to the prosecutor’s job. Indeed, prosecutors have a very good reason to want bad cops punished and removed from the police force; I’m not at all certain that there is a necessary bias on the part of prosecutors in favor of letting such cops escape legal consequences of their actions. That assumption is based on the assumption that prosecutors don’t care about justice. Nobody who doesn’t care about justice becomes a prosecutor. Why would they? It is a hard, frustrating job and the pay isn’t anything special.
The strongest argument for a special prosecutor is a different ethical problem, the appearance of impropriety. If the decision to prosecute or not is tainted with suspicion of bias, then the justice system is compromised and breaks down. This is why, for example, it is terrible that the Justice Department, a super-politicized one at that, is supposedly investigating the I.R.S. scandal.
As George moved to another topic, Jones blurted out a final statement that caused me to spit-take a mouthful of coffee. It undermined all of his finely tuned rhetoric about fairness and non-partisan dialogue about race, and exposed, ironically, his own biases. He said;
“If there had been a special prosecutor in Ferguson, we would have had a different result.”
1. This disqualifies Jones as an objective and trustworthy commentator on this issue, and many other issues as well. Polls show that African-Americans, like Jones, overwhelmingly believe that Officer Wilson should have been indicted, a position based on group identification, suspicion of police, a false “hands up” narrative still perpetuated by elected officials, activists and pundits, ignorance of the law, emotion, and failure to consider the evidence. Lawyers and objective commentators, almost unanimously, agree that there was not enough evidence to ethically indict Wilson, because he could not be fairly convicted beyond a reasonable doubt. By implying that a “different result” would obviously be a good result—the unethical argument adopted by the Governor of Massachusetts-— Jones proved that he is thinking with his skin color, or, alternatively, lying.
2. Jones is also correct: a special prosecutor would have almost certainly ensured an indictment to mollify public and political passions, just as it did in the Trayvon Martin case. Jones’s own ideological biases prevent him from seeing that this argues against that solution to the appearance of impropriety problem, not for it. Justice isn’t served by a system that substitutes a real bias for the mere appearance of one. Such a special prosecutor would naturally see his or her assignment as prosecuting the police officers, since the original prosecutor was removed for fear that he would not prosecute even if doing so was dictated by an objective reading of the evidence.
3. Van Jones gave us one more indication that the Left is determined to keep repeating the falsehood that justice wasn’t served in Ferguson until it becomes the accepted and official version of history. Last week one commenter angrily withdrew from the fray, arguing that I unfairly refuse to respect this point of view. He’s right, I don’t respect it, but it is perfectly fair. That point of view deserves no respect. It deserves no more respect than other intentional distortions of events concocted to warp public opinion to advance a political agenda.