WASHINGTON, D.C. (August 25, 2014): Despite impassioned requests by many responsible leaders for the appointment of a special prosecutor to oversee the investigation and possible prosecution of the shooting in Ferguson, MO, of an unarmed black youth by a white police officer, both the prosecutor and the Governor have steadfastly refused to act.

Facebook Ferguson protest

Jon Banhzaf on prosecutor appointment for Ferguson shooting investigation

So, perhaps it’s time for the NAACP, state lawmakers, and others speaking out in the media to try a new approach, asking the judge – rather than the Governor – to appoint a special prosecutor under his clear legal authority to do so, says public interest law professor John Banzhaf.

As recently as 2004, the Missouri Court of Appeals reaffirmed the power of a judge to appoint a special prosecutor, stating that: “the power to appoint a special prosecutor is not limited by the statutory grounds specified in Section 56.110; rather, it is a power inherent in the court, to be exercised in the court’s sound discretion, when for any reason, the regular prosecutor is disqualified.”  Other recent court rulings have recognized that Missouri judges do have the power to appoint special prosecutors in appropriate cases.

Ferguson: Petition filed to avoid bias

Here a petition filed before the judge could argue that the appointment of a special prosecutor is necessary to prevent the appearance of a possible conflict of interest, and insure that there is no bias.

It could note that the prosecutor’s father was killed by a black person; his brother, uncle and cousins all worked for the St. Louis police department; the prosecutor took the unusual step of criticizing the Governor’s decision to put the state highway patrol, under the command of a black officer, in charge of crowd control; his involvement with a support group for the families of slain officers called BackStoppers; his possible involvement in the much-criticized decision to release a video of the victim allegedly engaged in a robbery, and also for other possible leaks; etc.

“While any one – or even two or three – of these factors might not provide sufficient justification for a judge to appoint an independent special prosecutor, the whole may well be greater than the sum of its individual parts in this situation, and the cumulative effect may be overwhelming” says Banzhaf.

Ferguson: Results should be delivered by fair minded people

A court can and should take judicial notice of the controversy this case has generated, and the many responsible legislators, leaders of major organizations, and others who believe that such an appointment is necessary not only to avoid the appearance of a possible conflict, but also to help insure that the results of the investigation and possible prosecution will be accepted by most fair minded people.   The parallels to the George Zimmerman case in Florida, where special prosecutors were brought in, is clear, says Banzhaf.

Although some experts claim that a judge is unlikely to make such an appointment, Banzhaf suggests that those concerned about the case have everything to gain and nothing to lose by making such a detailed legal application to the judge. “It can’t be any less effective than simply voicing sound bites for TV cameras and on news shows.”

Moreover, he notes, applications he filed for a special prosecutor in the Watergate case did lead, however indirectly, to just such appointments, and to the downfall of President Nixon.  See “Law Professor Reflects on His Role in Nixon’s Resignation,” in the George Washington University’s newspaper, The Hatchet.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf