“Justice Must Satisfy The Appearance Of Justice”: The System Must Counteract Prosecutors’ Natural Sympathies For Cops
“Justice must satisfy the appearance of justice,” Felix Frankfurter wrote, in a Supreme Court case 60 years ago.
That edict — a foundation of democracy — has not been observed in some recent high-profile cases in which grand juries have refused to indict police officers for killing unarmed African-Americans. The resulting injury is not just to criminal justice but to the legitimacy of the government itself.
As a former prosecutor let me put this as directly as possible: Blame the prosecutors, not the grand jurors. There is one reason that Daniel Pantaleo is not being charged in the death of Eric Garner. It’s because District Attorney Dan Donovan of Staten Island did not want him to be.
Why not? The cynical point of view is that Donovan was playing to his base. Staten Island is the whitest and most conservative borough in New York. It’s also home for many cops. Maybe Donovan figured he would take heat however the grand jury came out, but the people who would be protesting in the street in the event of no indictment did not include most of his electorate.
But there is a more benign explanation. Maybe Donovan just appreciates that cops have one of the most difficult jobs in the world, and so, he cuts them some slack. It’s a very human reaction.
I speak from whence I know. One reason I became a prosecutor is that I had a number of bad experiences with the police where they racially profiled or just generally disrespected me. I thought I could go in as an undercover brother and change the system from the inside. What happened instead is that the system changed me.
When you work with cops every day you definitely gain more respect for their difficult work. And you need them to help you make your cases (every prosecutor has experienced having a police officer catch an attitude, sometimes in the middle of a trial, and purposely ruin your case because they don’t like you).
And finally policing is like most other employment — a few people do most of the work. So prosecutors see the same cops over and over, and they bond with them. It’s not so much that they excuse egregious misconduct as that they cast a blind eye. Nothing irks a cop more than an elitist prosecutor treating him or her like “some suspect.”
So the problem stems from the culture of the prosecutor’s office, compounded by the fact that, like most lawyers, prosecutors are competitive and ambitious and the way you move ahead is to win your cases, and the way you win cases is get your star witnesses — the cops — to go the extra mile. All that makes it really tough to try to send one of them to prison — even when they have messed up big time, as I believe Pantaleo did when he placed Eric Garner in a banned chokehold.
In a democracy, no one should be above the law. It’s fine for citizens to profoundly respect the men and women who serve as law enforcement officers. But when those people break the law, they must be held accountable just like anyone else. The automatic appointment of special prosecutors in criminal investigations of police is the best way to avoid district attorneys’ natural biases and make sure that justice satisfies the appearance of justice.
By: Paul Butler, Former Prosecutor and a Professor at Georgetown University Law Center; The Opinion Pages, Room for Debate, The New York Times, December 4, 2014
“Adding Insult To Injury”: First Mike Brown, Then Eric Garner; Prosecutors Can’t Be Trusted To Try Cops
A New York City man who was at most guilty of selling loose cigarettes on the street was tackled and placed in a chokehold by a police officer in late August. The man, Eric Garner, protested that he couldn’t breathe, but the officer with his arm around Garner’s didn’t let up. Today, a grand jury announced that it would not indict the officer, Daniel Pantaleo.
The lack of indictment comes just a week after a grand jury in Ferguson, Missouri, did not indict a police officer there, Darren Wilson, for his role in the shooting death of an unarmed teenager, Michael Brown. Both Eric Garner and Michael Brown are black and their deaths, within just days of each other in August, helped reignite a national conversation—as well as protests—about disproportionate police violence against the black community. At a time when black men are killed by police with disturbing regularity, Garner and Brown’s deaths added urgency to a long-simmering but woefully unaddressed crisis.
I’ll leave it to the legal analysts to rehash the evidence presented to the Pantaleo grand jury. Hopefully there will be a transparent accounting of what was introduced. But the fact that two grand juries in fairly rapid succession have failed to indict police officers involved in highly questionable deaths of unarmed black men should give us all pause. In Panaleo’s case, the grand jury’s refusal to indict him despite his use of dangerous and violent tactics doesn’t pass the smell test. Add in historic patterns of NYPD abuse against black men in New York—Amadou Diallo, Abner Loiuma, stop and frisk generally—and the lack of an indictment downright stinks.
Combined, the two cases suggest that more should be done to decouple criminal investigations of police abuse from the conventional prosecutorial system. Attorneys who usually work hand-in-hand with the police in pursuing other criminal cases can’t honestly be expected to be impartial and aggressive in then prosecuting those same officers. It’s worth noting that when prosecutors nationwide decide to bring charges before a grand jury, they usually succeed. In 2010, for instance, federal prosecutors sought indictments in about 162,000 cases and in only 11 cases did grand juries not return indictments. In the face of those statistics, these two non-indictments are glaring.
Even worse, the failure to indict the officers who killed both Eric Garner and Michael Brown deprives their communities of the transparency and accountability that trials ensure. No one is saying that the officers should be tried if there’s not sufficient evidence, but many legal analysts have agreed there’s enough in both cases to at least warrant a trial. There are questions about facts in terms of both Michael Brown and Eric Garner’s movements before their death, questions of fact that should be debated in a court. There are questions about the officers’ states of mind—questions that could be fleshed out and better understood if the cases went to trial.
But the lack of indictments, now twice in a row, seems to add insult to injury—that not only are black men routinely, disproportionately victimized by the police but they are victimized by a legal system that refuses to hold the police accountable.
By: Sally Kohn, The Daily Beast, December 3, 2014
“No Voice Of Reason”: ‘I Can’t Breathe!’ ‘I Can’t Breathe!’ A Moral Indictment Of Cop Culture
The grand jury has spoken, but that does not change what Eric Garner cried out in the cellphone video taken as police pinned him to a Staten Island sidewalk.
“I can’t breathe! I can’t breathe!” Garner said again and again that August day.
And even though the grand jury has now chosen not to bring criminal charges in Garner’s death, the video footage that follows those cries constitutes a moral indictment not so much of what the police did but of what the police did not do.
“At that point, forget the cop side,” a longtime veteran police officer not party to the incident says of the moment Garner cries out. “The human side comes in.”
Yet the cops do not seem even to hear Garner.
“I don’t see anyone in that video saying, ‘Look, we got to ease up,’” says the veteran officer. “Where’s the human side of you in that you’ve got a guy saying, ‘I can’t breathe?’”
The veteran officer goes on, “Somebody needs to say, ‘Stop it!’ That’s what’s missing here was a voice of reason. The only voice we’re hearing is of Eric Garner.”
The veteran officer believes Garner might have survived had anybody heeded his pleas.
“He could have had a chance,” says the officer, who is black. “But you got to believe he’s a human being first. A human being saying, ‘I can’t breathe.’”
What may have saved Police Officer Daniel Pantaleo from indictment is that a close examination of the video shows he had had released his chokehold on Garner just before the 43-year-old father of six began crying out that he could not breathe. Pantaleo by then was shifting around to press the prone man’s head into the pavement.
None of the cops in the video are beating Garner. And in two hours of questioning by the grand jurors on Nov. 22, Pantaleo apparently convinced them that he had not intended to injure Garner, only to place him under arrest. Pantaleo was held blameless even though the medical examiner had ruled the death a homicide resulting from “compression of the neck [chokehold], compression of chest, and prone positioning during physical restraint by police.”
But the absence of criminal charges does not make the indifference to Garner’s distress any more forgivable. There were still those cries, cries that rose again Wednesday afternoon from the same grimy patch of pavement where Garner died, voiced by two dozen members of the community who stood shocked and angered by the news that no cop would be charged.
“I can’t breathe! I can’t breathe!”
They added a chant that rose in Ferguson, where another grand jury had declined to indict Police Officer Darren Wilson in the death of 18-year-old Michael Brown.
“Hands up! Don’t shoot!”
A 25-year-old man named Alexander Cooper strode up the sidewalk holding his 3-year-old daughter, Alexis, by the hand. He told her what he also would have said had they been walking in Ferguson, no matter what the differences between the two cases.
“I just told her that a black man was killed and there were no charges,” he said.
He added, “As I father, I want to live and watch my children grow.”
Cooper spoke of how pained he was that Garner will never get that chance with his own kids. Little Alexis pulled on his hand.
“I have my daddy right here!” she announced.
Cooper had little Alexis pose for a picture on the exact spot there Garner was pinned. Alexis did not know to act differently than she might for any other picture taken of her by her daddy. Her bright little smile in this place of senseless death constituted a challenge to all of us to make the future more in keeping with this sparkle of life at its most pure and innocent.
“I’m going to show it to her in the future,” Cooper said of the picture. “I’m going to show her she was here.”
We can only hope that she will marvel at how much the city and country have changed.
Earlier in the day, before the decision became known, Jonathan Mejia and Natassia McClean had come up to this spot pushing a stroller that bore an even younger challenge of the future, their 6-month-old son, Jerimiah. Mejia looked at a rain-sodden sign reading “BIG ERIC R.I.P.” and flowers left after Garner’s death that had wilted during the four long months of the grand jury’s investigation.
“I knew somebody else killed by the police,” 21-year-old Mejia said.
The couple had recently moved to Staten Island from the Bronx, where Mejia had been buddies with 18-year-old Ramarley Graham. Police had burst into Graham’s home in 2012 after seeing him in the street adjusting something in his waistband that might have been a gun. He was in the bathroom, perhaps trying to flush some pot down the toilet, when a cop burst in.
The cop shot and killed Graham, later saying the teen had reached for his waistband. No gun was found, and in this instance the cop was indicted. A judge then tossed the indictment out, saying the prosecutor had made an error in presenting the evidence. A second grand jury declined to indict the cop.
Mejia now stood where Garner died and spoke Graham’s name aloud.
“That was my friend,” he said.
This second tragedy reconfirmed in Mejia’s mind what the earlier killing had led him to conclude about the police and people of color.
“They don’t look at us like regular human beings,” he said.
The baby was dozing as Mejia and McClean pushed him on down the street, the parents not seeming to take any great comfort in the police having transformed New York into the safest big city in America in recent years.
In truth, the police routinely place themselves in great danger while continuing to bring crime in New York to record lows. And many of them live by words that Pantaleo at least professed in a statement released Wednesday through the Patrolmen’s Benevolent Association.
“I became a police officer to help people and to protect those who can’t protect themselves,” Pantaleo said.
He went on to say, “It is never my intention to harm anyone and I feel very bad about the death of Mr. Garner. My family and I include him and his family in our prayers and I hope that they will accept my personal condolences for their loss.”
Nice sentiments from a guy who seemed deaf to Garner’s pleas that he was unable to breathe.
“The time for remorse was when my husband was yelling to breathe!” Garner’s widow, Esaw Garner, told a press conference Wednesday.
Pantaleo comes from Eltingville, the overwhelmingly white section of Staten Island that was home to Police Officer Justin Volpe, who is presently in prison for sodomizing Abner Louima with a wooden stick in a stationhouse bathroom. Eltingville is not known for being progressive on matters of race, but Volpe’s family is said not to have been racist, and he had a black fiancée. Pantaleo is also not necessarily a manifest racist.
“I think it’s just cop culture,” a longtime Eltingville resident said Wednesday.
That unfairly characterizes the many decent cops, but there is indeed one element of cop culture that tends to dehumanize or at least objectify suspected lawbreakers of whatever race. The instant you are deemed a candidate for arrest, you become not so much a person as a “perp.”
“You’re dehumanizing the person,” the veteran black police officer says.
In the view of some cops, perps merit little concern or sympathy. This is particularly true when such cops are focused on effecting an arrest. The result can be the indifference that appears so chilling in the Garner video.
“You’re not even hearing [the perp] at this point; you’re dealing with this non-human,” the veteran police officer says.
The veteran officer notes that even in the most extreme mixed martial arts bouts, a fighter can “tap out,” signaling he has had enough.
“Eric Garner didn’t have a chance to tap out,” the veteran officer says.
The whole incident becomes all the more shocking when you consider that Garner was being arrested for selling “loosies,” individual and usually untaxed cigarettes. The police had arrested him repeatedly in the spring and into the summer in response to orders originally with Chief of Department Phil Banks, third in command of the NYPD. Banks’s office had reportedly been receiving complaints from local storeowners about people selling loosies in the street. One caller had mentioned “a man named Eric.”
“They feel like they’re driven to produce, and producing means arrests,” the veteran officer says of fellow cops in such instances.
For reasons entirely unrelated to Garner’s death, Banks retired in October. He happens to be black, and his departure was seen as a blow to the NYPD’s efforts to establish better relations with communities of color.
With the grand jury’s failure to indict Garner and the recent accidental shooting of an unarmed young man by a jittery rookie cop in a darkened housing protect stairwell in Brooklyn, those relations have become decidedly tense, despite the city’s proudly progressive new mayor, Bill de Blasio.
Garner’s family and their supporters are hoping the U.S. Justice Department will indict Pantaleo on civil-rights charges, as it did Police Officer Francis Livotti, who employed a chokehold on 29-year-old Anthony Baez some 20 years ago in the Bronx, with fatal results. The Livotti case led to the NYPD’s prohibition against the use of chokeholds, which it defines as bringing pressure to bear on the airways.
On Wednesday evening, some residents of Staten Island boarded the ferry to join protesters who were gathering in Times Square, not far from Rockefeller Center, where the big event of the night was scheduled to be the annual Christmas tree lighting.
As a precaution against a possible disturbance, the ferry was escorted by a police boat, its blue lights flashing. The boat was named in memory of Det. Dillon Stewart, a black police officer who was shot to death in the line of duty in Brooklyn in 2005, leaving two young daughters. The whole city mourned Stewart’s loss and honored him as a hero in the ongoing effort to make New York safe.
There was no trouble on the ferry as it reached Manhattan and a few of the passengers boarded the subway to the protest uptown. The cry that rose up into the night signaled a moral indictment no matter what the grand jury had said.
“I can’t breathe! I can’t breathe!”
By: Michael Daly, The Daily Beast, December 3, 2014
“We Need More Ferguson-Style Grand Juries”: A Model For How To End The Over-Incarceration Of African-Americans Today
We need more grand juries like the Ferguson grand jury. In an ironic twist, Ferguson’s grand jury provides a blueprint for a radical civil rights revolution that could help end the worst racial injustice in America today. Here’s why.
Many observers have noted that the grand jury result in Darren Wilson’s case is highly unusual. Federal grand juries indict in more than 99 percent of cases; state grand juries aren’t quite at that level, but still indict in an overwhelming number of cases. The grand jury deck is heavily stacked to favor prosecution. For instance, prosecutors have no obligation to present all of the evidence in a case, just enough evidence to get an indictment. The old adage is that if a prosecutor asked them, a grand jury would indict a ham sandwich.
Other than sandwiches, who are grand juries indicting, and how? They disproportionately indict young African-American men, and they usually do it very quickly. Grand juries often hear dozens of cases in a single day, and may hand down an indictment based on ten minutes or less of testimony. As one news article notes, “Prosecutors present as many as 40 cases a day to grand juries,” who in turn “indict most suspects in less time than it takes to brew a pot of coffee.”
This is why the grand jury in Darren Wilson’s case was so unusual. It isn’t just that the result was out of the ordinary— the process was also unique. The grand jury heard an incredible 70 hours of testimony from 60 witnesses over a three month period. In another unusual move, the grand jury considered not only the basic elements of the crime, but also affirmative defenses. Ashby Jones writes at the Wall Street Journal blog that “It’s not disputed that Ferguson police officer Darren Wilson shot and killed 18-year old Michael Brown on August 9. The question jurors were likely asked to consider went beyond that: whether Mr. Wilson was justified in shooting Mr. Brown.” And in yet another atypical move, prosecutors presented this grand jury not just a cherry-picked case for prosecution but “absolutely everything … Every scrap of paper that we have. Every photograph that was taken.”
This approach should not be condemned; it should be expanded upon. While cases like the Mike Brown and Trayvon Martin killings receive media attention, they aren’t actually representative of the way that most African-American young men interact with the justice system today. Instead, today’s criminal justice system mostly interacts with young Black men by putting them behind bars at an alarming rate. In recent years nearly one million African-Americans have been incarcerated at the federal, state or local levels. As many as one in three Black men born today will spend time incarcerated.
When they do leave prison, these men are largely unemployable and ineligible to vote, and often end up back in the system. This mass incarceration is destroying the Black community — it is, as Michelle Alexander writes, the New Jim Crow. And it depends on grand juries who act as a conveyor belt, quickly funneling tens of thousands of young Black men into prison.
The contrast with the Wilson grand jury is a stunning illustration of the racial double standards in criminal justice. We should undo that double standard by offering similar protections to every young Black man who is arrested in this country. If grand juries across the United States regularly deliberated for twelve weeks rather than twelve minutes, it would become physically impossible to incarcerate a million African-Americans. If every grand jury heard seventy hours of testimony from sixty witnesses over three months, it would mean the end of mass incarceration in America.
Of course, racial double standards have been lived reality throughout American history. But perhaps the sheer visibility of the grand jury in this case will call attention to the problems of how grand juries usually operate. Ironically, the Ferguson grand jury provides a model for how to end the over-incarceration of African-Americans today. I hope that a thousand more grand juries will follow its lead.
By: Kaimipono Wenger, Thomas Jefferson School of Law in San Diego, California; The Daily Beast, November 30, 2014
“Liberty, Racism And Police Militarization”: Those Entrusted With Our Safekeeping Have Become Agents Of Racial And Class Division
An important duty of any law enforcement professional is to prioritize the safety of the public over that of his or her self, which is precisely the sacrifice for which we owe our officers immense respect and gratitude. Their selfless commitment to protect and serve our communities warrants praise and commendation, without question.
Unfortunately, it is becoming evident that police agencies are instead implicitly prioritizing their own safety over that of the public, and they justify this trend by citing heightened threat levels on the job. This reorganization of priorities is implied by a passive but evident willingness to increase their protection and firepower at the cost of civil liberty and comfort.
Police militarization is in and of itself an escalation of sorts; when confronted by a police force that is armed with and protected by military grade equipment, a reasonable person will likely perceive himself to be under immediate threat of physical violence. Therefore he will be more likely to reciprocate, resulting in increased aggression by both parties whether that manifests passively (police intimidation) or physically (hurling rocks at a line of police). It is by no means an imaginative stretch to say that the chances of a peaceful protest becoming violent increase dramatically if the assembly is approached or contained by an intimidating and imposing police presence.
Unnecessarily subjecting our police to harm is also ill-advised, but we should pay careful attention to the balance between their safety and the degree to which their presence hinders individual and collective liberty. Even if any perceived assault on liberty is wholly unintended, it is nonetheless unwarranted and unjust.
My critique of police convention is not to trivialize the issue of the structural racism evident in Ferguson and which is pervasive across our justice system. Contrarily, the issue of the militarization of law enforcement directly contributes to and perpetuates this unfair system since the burden of militarization most often rests on the shoulders of underprivileged minority groups. For comparison, consider this year’s Pumpkin Festival at Keene State, which largely devolved into a destructive riot, and how the police response was relatively subdued.
In the aforementioned example, it could be argued that a reduced perception of threat could have driven the relatively amicable police response. This line of thinking alone is indicative of the inequality prevalent in our society. It suggests that those we have entrusted with the safekeeping of our communities have themselves become agents of racial and class division, and that their understanding of institutionalized privilege and oppressive power structures is largely nonexistent.
Though it is easy to believe that such subjectivity is warranted and possibly even a best practice for the protection of our law enforcement officers, placing the safety of a police force over the safety of the community is a dangerous line to cross in the context of a supposedly free and progressive nation. How can we expect subjective law enforcement conventions to establish and maintain an objective peace in our marginalized communities if they themselves perpetuate the structural violence that affects these communities?
Furthermore, we cannot readily expect communities that receive privileged treatment from law enforcement agencies to denounce, acknowledge, or even understand the impacts of inherently racist police practices, their ignorance a result of their own advantaged realities. Such existential distance diminishes the power of compassion to rally our ally communities in support of the less fortunate.
Will a less intimidating police presence fix our problems? No. But it will be a lot easier to support our officers when we don’t see them as being catalysts of the very violence they are employed to suppress.
By: Andrew Nathan Bartholomew, The Blog, The Huffington Post, December 1, 2014
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