When and Why Attorneys General Assume Control over Criminal Cases from District Attorneys

Statement by Former Maine Attorney General and Harvard Lecturer-in-Law Jim Tierney on the law and policy underlying the relationship between Attorneys General and District Attorneys. The issue is of immediate relevance in light of MN AG Keith Ellison taking over as lead prosecutor for Hennepin County Attorney Mike Freeman in the case regarding the death of George Floyd.

90% of criminal prosecutions take place in state court and all but three states (DE, RI, and AK) have both Attorneys General and District Attorneys. While the policies differ in detail from state to state, this long-standing practice is based on sound public policy and generally operates invisibly until a major case emerges such as what has recently occurred in Minnesota.

These divided responsibilities are meant to be complementary. The DA's handle the vast majority of cases and the AG's take cases where there are legal conflicts (the DA or his/her staff has a personal relationship with a party, the judge, or a witness) or involve specific subject matter issues. (Medicaid Fraud, major crime in a rural area, white-collar crime, all homicides in some states, and increasingly, allegations of police brutality.). This structure is designed to allow the public to have greater confidence in the final result. It is not that the lawyers for the AG are "better" than the lawyers for the DA, but rather it is that AG offices often have resources that allow the development of expertise in areas that rarely come before a DA.

Allegations of police misconduct come to AG offices for both reasons, e.g. conflicts (the DA's work with local police all the time and local police are always witnesses on other pending cases) and specialty (an AG can develop expertise in handling police cases.). Further, from the perspective of public confidence, it is often best to have the prosecutor be from outside any local district. While there are disagreements on this policy, the national trend is to expand the role of attorneys general in dealing with allegations over the use of excessive force by police officers.

The issue of who will investigate allegations of police misconduct is not new and indeed many attorneys general have handled these cases for many years, but for other states it is new. While what has happened in Minnesota is not routine in Minnesota, it is routine in many states.

For inquires please use jtierney10@gmail.com.

James E. Tierney
Former AG of Maine (1980-1990)
Lecturer in Law and Director of the Attorney General Clinic at Harvard Law School

Reference:

• "Police Lethal Use of Force," Report and Recommendations of the Task Force to Examine Improvements to the Ohio Grand Jury System, The Supreme Court of Ohio, July 2016.