101 Iowa L. Rev. 1447 (2016)

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Abstract

The job of investigating and prosecuting police officers who commit crimes falls on local prosecutors, as it has in the wake of a number of highly public killings of unarmed African-Americans since Michael Brown died in August 2014. Although prosecutors officially represent “the people,” there is no group more closely linked to prosecutors than the officers they work with daily. This Article focuses on the undertheorized but critically important role that conflict-of-interest law plays in supporting the now-popular conclusion that local prosecutors should not handle cases against police suspects. Surprisingly, scholars have paid little attention to the policies and practices of local district attorneys who are tasked with investigating and bringing charges against officers who commit crimes. This Article argues that a structural conflict of interest arises when local prosecutors are given the discretion and responsibility to investigate and lead cases against the police.

This Article, the first in a series that examines police as suspects and defendants, theorizes the disqualification of legal actors from their traditional roles by drawing out a number of themes from conflict-of-interest law: that the criminal justice system must appear just, and that judges and attorneys alike must not have a personal stake in the outcome of litigation. This Article then lays out a full account of the personal and professional interconnectedness between local prosecutors and the police. Then, using conflict-of-interest theory, it details how asking local prosecutors to become adversaries of their closest professional allies raises process-oriented and democratic legitimacy issues, particularly in our racially charged criminal justice system. This Article concludes that the conflict of interest between local prosecutors and police–defendants is so anathema to our system of justice that it requires removal in every case where an officer is accused of committing a crime.  Finally, it turns to the question of who should prosecute the police and proposes several potential solutions.