Blind justice: segregation required

George P. Bukuras, The Daily Record Newswire

People were dancing in the streets in Baltimore. Their surprise and exuberance, however, that an apparently impartial investigation had taken place by Baltimore's police department, is evidence of a systemic problem that will continue to plague even if justice prevails in the sad case of Freddie Gray.

The Baltimore Police Department, under the stewardship of Commissioner Anthony Batts, seems to have conducted a prompt and objective investigation into the facts and circumstances surrounding the unjustified arrest and tragic death of Gray. Commissioner Batts should be lauded. Marilyn Mosby, Baltimore's newly appointed state's attorney, appears intent to prosecute the accused officers with the zeal deserving of the actions for which the officers are charged. Hopefully, for all involved, justice will be served.

The path to justice will call upon the prosecutorial team, and their law enforcement partners, to continue to exhibit exceptional personal integrity and courage as the criminal justice system is turned on itself.

Adding to the tragedy of these unfolding events, however, is the fact that these public servants need not have been placed in the cruel dynamic in which they now find themselves.

Unfortunately, Batts and Mosley, the departments they run, and the community they serve, will continue to pay a price for the character that these officials are being called on to display, even if justice is ultimately achieved.

There likely will be long lingering discord between the police commissioner and his officers, between the State's Attorney's Office and the police force that is so essential to the operation of the state's attorney's mission, between the police union and the Mayor's Office, and elsewhere within the local system of criminal justice.

Will any of the constituencies be better off at the conclusion of this affair? Though justice may be served in the case of Gray, will justice, in the greater communal sense, be enhanced with what will likely be protracted ill-will between the various constituencies within Baltimore's criminal justice family?

In jurisdictions around the country, members of the office of the chief prosecutor and members of the local police department are players on the same team, charged with the task of investigating violations of law and bringing those charged to justice.

Just as on the football field, where the offensive squad and the defensive squad have different roles but a common goal, so, too, do prosecutors and police in the criminal justice system. Each group is essential to the success of the team.

When police misconduct is at issue, the system is required to turn on itself, a destructive dynamic requiring great individual courage and sacrifice. The system cries out for change.

Given the stark differences between business and government, solutions in one sphere are rarely transferrable to the other. With respect to matters involving allegations of police abuse, however, a lesson from corporate America may prove instructive.

Publicly traded companies are required, as a matter of law, to have documented systems of internal controls; that is, governing processes, instituted at the direction of a company's board of directors, designed to provide reasonable assurance regarding operational efficiency, reliable financial reporting, and compliance with applicable laws and regulations.

The bedrock of an effective system of internal controls is prudent segregation of duties. Separating practically incompatible responsibilities between individuals or groups reduces both the risk and appearance of inappropriate behavior on the part of an individual or a group.

For example, consider the case of a company that receives an anonymous lead alleging that the company's chief financial officer has engaged in accounting irregularities. A proper system of internal control would require that the allegation be directed not to the chief executive officer to whom the CFO reports, but to the company's board of directors, which would retain an independent law firm to conduct an investigation of the allegation.

The obvious objective served by such an internal control requirement requires little explanation. Like the state's attorney and the police commissioner, the CEO and the CFO are both involved in the day-to-day running of the business. The nature of their individual roles requires that they work with one another closely and regularly. Trust is an essential ingredient in their relationship. Removing responsibility for the investigation from the CEO to the board avoids the appearance of bias and enhances the likelihood of an impartial analysis of the allegation.

There are additional, perhaps less obvious, benefits derived from such segregation of duty, however. The protocol preserves the relationship between the CEO and her management team, on whom she must rely long after the allegation concerning the company's CFO has been investigated and resolved.

The system mandates the removal of the responsibility of investigation from the CEO. Accordingly, the system frees the CEO from the need to exercise the brand of super-human virtue being called for in Baltimore, thus avoiding the risk that the CEO and her management team will be burdened with a legacy of broken relationships long after the investigation has run its course.

The goal here is not purely in service to the interpersonal. It is the organization that is the ultimate beneficiary, as the policy facilitates the continued operational integrity of the management team, which is so essential to the success of the organization.

From John Adam's representation of British soldiers to Supreme Judicial Court Chief Justice Margaret H. Marshall's decision in Goodridge v. Dept. of Public Health, Massachusetts has been at the forefront of advances in our nation's system of justice. Fortunately, the commonwealth's new CEO, Gov. Charlie Baker, comes from a business environment where concepts involving systems of internal control are second nature. Perhaps, once again, Massachusetts can lead the way by becoming a model for change.

How might such leadership be achieved? Sometimes in public life independent investigations are called for and do occur. Typically, when independent counsel is assigned to investigate a matter in the public sphere, however, the referral requires an act of political will by the governing individual or entity possessing authority.

Such acts of political will are sometimes fueled by political courage, and sometimes by wont of political advantage. In either event, the act itself, and the actor, become the subject of public scrutiny and opinion.

Let's begin by removing the politics and establishing a system requirement that, for certain categories of predictable events, such as capital crimes involving law enforcement, there must be a segregation of duties between the investigator and the investigated.

This might be achieved by having the governor establish a regularly seated panel of independent counsel, comprised of attorneys in private practice and retired law enforcement officials, charged with the task of conducting independent investigations in capital cases and certain other defined cases where police conduct is at issue.

The product of the investigation would be delivered not to the mayor or district attorney of the involved jurisdiction, but to the governor, together with a recommendation regarding prosecution.

The governor, relying on a system of control segregating responsibility for prosecution from the jurisdiction being prosecuted, would assign the case to a prosecutor from an independent jurisdiction, so as not to burden the essential ongoing relationship between local DAs and the police departments that serve them. Similar arrangements may be made with neighboring states where state law enforcement is implicated.

There is an inevitable tension between the role that law enforcement plays, on the one hand, and those being protected, on the other. Public servants involved in the criminal justice system deserve our respect and gratitude.

Chief among those deserving praise are police officers. They strap on a weapon before going to work each day. They do so because officers and their families live with the knowledge that every day will bring unknowable challenges. What is known, however, is that police officers will be called on to do things that others cannot or will not.

It is indisputable that young inner-city males of color are at much higher risk of being the subject of police misconduct than are their white counterparts.

Though that is a glaring injustice deserving of our attention, a starting point in addressing such abuse would be to achieve a system in which the police and the public are able to have confidence that investigations into alleged abuse are performed by independent, capable professionals who are sensitive to the realities faced by both the protector and the protected; a system of segregated duties so as to ensure that the mere fact of an investigation does not impair the criminal justice system, nor serve to fracture relationships within the greater community; a system that delivers blind justice.

Achievement of such a system would truly be cause for dancing in the streets.

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George P. Bukuras is a Boston attorney and business advisor.

Published: Wed, May 27, 2015

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