'Winning a Conviction Will Be Hard': Why It's So Difficult to Prosecute a Bad Cop

WASHINGTON — The legal case against four Minneapolis police officers involved in the death of George Floyd is still in the early stages – one month after his untimely death.

Yet some are already urging caution as the prosecution gets underway.

"Former Minneapolis police officer Derek Chauvin has finally been arrested for the murder of George Floyd. Now comes the hard part," Paul Butler, a Georgetown University law professor and former federal prosecutor, wrote in a Washington Post opinion piece after Chauvin's arrest.

"As a former prosecutor, though, I am well aware of the difficulty of convicting a police officer. The odds are against it," he continued citing statistics.

Minnesota Attorney General Keith Ellison expressed the same sentiment when he announced he was upgrading the charge against Chauvin to second-degree murder, along with a charge of second-degree manslaughter.

"Winning a conviction will be hard," Ellison acknowledged. "History does show that there are clear challenges here."

Ellison, who was appointed to lead the prosecution by Minnesota Gov. Tim Walz in early June, also filed aiding and abetting murder charges to the three other ex-officers on the scene when Floyd died: J. Alexander Kueng, Thomas Lane, and Tou Thao.

While the court of public opinion – fanned by global protests and calls for reform in the wake of Floyd's controversial death – may have already decided Chauvin's guilt, the outcome is far from certain when it comes to weighing his guilt or innocence in the court of law.

High Hurdles for Police Accountability

"You have to meet such a high hurdle in order to hold them responsible criminally that most often you're going to see a police officer walk out of that courtroom and not suffer a guilty verdict," said Brett Tolman, a former U.S. attorney in Utah. "We see that time and time again across the country."

Tolman spent two decades working in the criminal justice system, three of them as a career prosecutor which included bringing Elizabeth Smart's kidnappers to justice.

As a self-described government reformer, Tolman is working to build on the reforms he helped push through in the First Step Act.

He views the legislative proposals on Capitol Hill and President Donald J. Trump's recent executive order aimed at incentivizing police reforms as a starting point.

"They have good measures in them for helping police officers respond better, but there's not a lot in there in terms of holding them accountable when they do something wrong — and when we say wrong, I'm talking about criminal acts. And police officers do commit criminal acts," Tolman told CBN News.

Tolman's assertion is backed by statistical data.

According to Mapping Police Violence, a database tracker of killings by law enforcement, of the 7,666 police-related homicides recorded between 2013 through 2019, 99 percent resulted in no charges.

"It's amazing because I know of some dedicated prosecutors who really tried to hold police officers accountable, but they run into hurdles," added Tolman, who now heads a public policy and government reform firm.

Tolman, who also spent years working as a GOP lawyer on the U.S. Senate Judiciary Committee, said he believes the imbalance of power is not what America's founding founders had in mind when they vested power to the people.

"I think they would be horrified at the development of the law that has protected those that are accused of misconduct who wield power," he explained. "They envisioned that the power would be with the people and that the government would be the thing that is scrutinized under a microscope with checks and balances."

Conflict of Interest?

Brent Orrell, a scholar at the American Enterprise Institute who worked on criminal justice reform for President George W. Bush, believes one of the obstacles is prosecutors' dependence upon the police.

"There's an intimate relationship between police and prosecutors that I think sometimes gets too cozy. And prosecutors don't want to hamper future prosecutions or investigations," he explained.

As a former prosecutor, Tolman agrees.

"You're in a way asking the fox to take care of the hen house."

But that's not at all how others see it.

Duffie Stone, a career prosecutor in South Carolina, is the current president of the country's oldest and largest association of prosecutors, the National District Attorneys Association. He believes prosecutors understand the preeminence of objectivity and independence and the role they play in shaping the public's perception of the administration of justice.

"We're in the accountability business," Stone told CBN News. "We're in the business of making sure that we're doing the right thing to the right people for the right reasons."

"I have prosecuted police officers. I have prosecuted public officials. And you do that because that is the job that you signed up for," he added. "If you are a prosecutor and you have some type of conflict of interest, if you cannot be objective about it, it's incumbent upon you to give that case to a prosecutor that can be."

A Call for Clarity

Improved guidelines clarifying use of force is among the many policy prescriptions NDAA is recommending in criminal justice reform.

Stone blames the lack of clearly-defined laws on use of force and criminal penalties as one of the factors contributing to the low number of convictions.

"Talking to a number of district attorneys who've made charges against police officers, that's been one of the things that has slowed them down. It's not a question of whether or not they're going to charge the officer criminally, it's with what," he told CBN News.

The lack of clarity surrounding such criminal charges is an issue Scarlett Wilson faced when trying the high-profile case against former police officer Michael Slager in the 2015 shooting death of Walter Scott, another fatal incident involving an unarmed African American.

"The difficulty comes in the definition of murder in South Carolina. We don't have varying degrees of murder," explained Wilson, a solicitor for South Carolina's Ninth Judicial Circuit. "Putting it into that box of malice is a burden that is often difficult in South Carolina and probably other parts of the country as well."

Stone is calling for a clear statute that includes homicide by a police officer, which could also help clear up confusion when a case reaches a jury.

"The jury has to make that decision of which statute is more applicable in the situation. And it's a tough decision for a professional prosecutor. So you can imagine twelve jurors who do not do this for a living on a regular basis having to make that decision," Stone explained.

Wilson, who also prosecuted the Mother Emanuel A.M.E. Church massacre which resulted in the killing of nine black congregants, believes clearly-defined laws would benefit the entire justice system.

"Because we don't have that, it makes it more difficult for juries to understand. It makes it difficult for prosecutors and defense attorneys – and even officers as well," she told CBN News.

Public  Hesitation

Those working to restore balance to the system also point out the decades-long spate of Supreme Court rulings that affirm police protections and tilt the scales of justice, making it harder to hold police criminal misconduct to account.

Another factor contributing to a lack of convictions, according to AEI's Orrell, is public perception.

"We want to believe the best of our police forces" he explained. "And what that leads to is that sort of unquestioning support for police action is a kind of a reflexive [mindset]: 'the officer is not at fault and the person who was injured or killed did something to bring that upon themselves.'"

"The fact of the matter is most of the time police do act appropriately," Wilson added. "There needs to be a defense. In other words, the person they're using force against is someone who's dangerous – is someone who poses a danger to either them or someone else. And, right now, that's hard to ferret out for officers and citizens who later judge them."

Orrell and Tolman also cite the influence of police unions as a barrier to necessary reforms.

"I'm aware of many cases where it's obvious to anybody that this was a crime and the prosecution was powerless to investigate the case because of the strength of the unions," Tolman said.

"When there is a criminal act in question, it seems highly inappropriate to me that we would be allowing the pressures of collective bargaining to reach inside the decision-making process to whether pursue a prosecution," Orrell pondered. "I think we really need to think about the question of the unionization of police forces."

While consensus is building around calls for reform but with no clear path, demands to defund the police have exposed a divide among the broad spectrum who desire change.

"The American people do not want their police forces defunded. They want them reformed, and that's where we need to focus our time and energy," Orrell explained.

While the overwhelming majority of police interactions with the public are peaceful, the current drive for reform does not appear to be dying down now four weeks after Floyd's death was filmed on a Minneapolis street.

"George Floyd is a case that certainly deserved attention, and it deserved to be the catalyst to set off reform that's very necessary," Tolman explained.

"He didn't have to die. It was a minor violation that they were responding to," he added.