Earl Ofari Hutchinson

*The instant defense attorneys got an Oakland judge to move the trial of former BART officer Johannes Mehserle charged with gunning down Oscar Grant to Los Angeles, Grant family members and supporters demanded that the Justice Department prosecute the case.

The selection of a jury with no blacks, the alleged pro police bias of the judge and the wide latitude given the defense to introduce favorable evidence and testimony for Mehserle, and exclude damning evidence and testimony against him, and the exclusion of black journalists seeking to cover the trial, has raised a nervous jitter about the outcome. On the eve of a trial verdict, there’s the deep fear that Mehserle will be acquitted.

The demand for federal intervention has grown even louder. He may well be convicted, but if he isn’t there’s little likelihood of a Rodney King repeat in the Grant case. In that case the four LAPD cops that beat King were acquitted in a state trial, and the feds retried the cops on civil rights charges. Two were convicted.

Despite the wave of highly questionable police shootings of mostly young blacks and Latinos the past few years, the Justice Department has done almost nothing to nail the cops that overuse deadly force. A decade ago, a report on police misconduct by Human Rights Watch, an international public watchdog group, noted that federal prosecutors brought excessive force charges against police officers in less than one percent of the cases investigated by the FBI involving allegations of police abuse. The group found that there was almost no increase in the skimpy number of police misconduct cases prosecuted by the Justice Department during the Clinton years. In the decade since the number of federal prosecutions of bad cops on misconduct and excessive force charges has registered barely a blip on the charts.

The see-no-evil policy of the feds toward police violence has remained constant in the past decade despite the rash of questionable police shootings of unarmed blacks and Hispanics, the routine acquittal of the handful of officers charged in their killings, and the less than vigorous prosecution by District Attorney’s of bad cops. Not surprisingly, the Justice Department says it gets thousands of complaints yearly.

The Justice Department has long had on the books a strong arsenal of civil rights statutes to prosecute abusive police officers. In almost all cases, it has taken major press attention, large scale protests, and even a major riot, such as the L.A. riots in 1992 following the King verdict, before it used its legal weapons. Federal prosecutors say they can’t nail more abusive cops because they are hamstrung by the lack of funds and staff, victims who aren’t perceived as criminals, credible witnesses, and the public’s inclination to always believe police testimony. A near textbook example of that was the recent acquittal of three Miami-Dade Police Officers in a federal trial in Miami. The cops were accused of lying to officials about how they arrested a drug dealing convict accused of illegal possession of a firearm.

Federal prosecutors also claim they are pinned in by the almost impossible requirement that they prove an officer had the specific intent to kill or injure a victim in order to get a conviction. These are tough obstacles to overcome and since the Justice Department is in the business of winning cases many prosecutors are more than happy to take a hands-off attitude toward police misconduct cases.

But this is no excuse for federal prosecutors not to at least make the effort to prosecute more officers when there is substantial evidence that they used excessive force. This is the legally and morally right thing to do. And it sends a powerful message to law enforcement agencies that the federal government will go after lawbreakers no matter whether they wear a mask, or a badge.

Former Attorney General Ramsey Clark understood the importance of prosecuting violence-prone cops even when there is virtually no chance of getting a conviction against them. He felt this acted as a stabilizing force to spur police and city officials to take stronger action to halt the use of excessive force in their departments. Clark was right. Yet while federal official from time to time pay lip service to doing something about racial profiling they are mute about the need for more aggressive federal prosecutions to crack down on police violence.

The refusal by federal prosecutors to go after cops such as Mehserle who overuse deadly force almost certainly will continue the dangerous cycle of more shootings and more racial turmoil, and deepen the distrust and cynicism of blacks and Latinos toward the criminal justice system. This is a steep price to pay to get simple justice. Sadly, this is what Grant family members and supporters deserve but won’t get if they depend on the feds to act on police violence. But they should still demand it.

Earl Ofari Hutchinson is an author and political analyst. His new book is How Obama Governed: The Year of Crisis and Challenge (Middle Passage Press).

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