The killer of another unarmed black man walks

Much of our nation is mourning the death of 43-year old Eric Garner and lamenting the failure of Staten Island District Attorney Dan Donovan to secure an indictment against Officer Dan Pantaleo who choked Garner to death.

Because Mr. Garner’s death was videotaped, millions have seen four police officers, including Pantaleo, swarm Garner and take him down while Pantaleo squeezed the life out of him.  Eric Garner’s last words repeated over and over “I can’t breath” did not persuade Pantaleo to loosen his hold or the other officers to pry Pantaleo’s arm off Garner’s windpipe.

They also did not persuade the Staten Island grand jury Donovan convened that Pantaleo should stand trial.  Apparently, enough jurors found Pantaleo’s 2-hour unchallenged address to them dispositive.

Unlike Officer Darren Wilson’s shooting of Michael Brown in Ferguson, Missouri, the Garner homicide (so-denominated by the officiating coroner) should never have been presented to a grand jury.  Instead, the District Attorney should have sworn out an arrest warrant for Pantaleo and then gone before a judge at a probable hearing where the case presumably would have been set for trial.

Submitting a case to a grand jury makes sense when there are conflicting witness accounts and the prosecutor may not know how or even if she can prevail at trial.  Calling numerous witnesses allows the prosecutor to assess their credibility for the purpose of deciding how to try the case in the event an indictment is handed down or whether to continue the investigation if the grand jury decides not to indict.  If the defendant chooses to testify, the prosecutor can see how he performs under cross-examination.

These factors were all in play in the Darren Wilson case thereby justifying Prosecuting Attorney Bob McCulloch’s submission to the grand jury.  Unfortunately, McCulloch didn’t even try shake Wilson’s questionable claim of self-defense.

The facts in Ferguson were in dispute.  By contrast, on Staten Island, a witness videotaped the entire chain of events from before the NYPD initiated physical contact with Eric Garner until his end moments later.  There is no question as to what happened and therefore no need to test eyewitness credibility.  The one potential benefit from calling a grand jury was lost when the D.A. did not cross-examine Pantaleo.

The prosecutors in St. Louis County and Staten Island abrogated their responsibility to investigate vigorously potential criminal acts and to prosecute those responsible.  Bob McCulloch failed Michael Brown, his family, and his community when he left unchallenged Darren Wilson’s version of why and how he shot to death unarmed Michael Brown.

By going before the grand jury rather than arresting and trying Officer Pantaleo, Dan Donovan failed Eric Garner, his family, and his community.  It is plausible to ascribe the prosecutors’ failure in both cases to reluctance to charge police with crimes as well as legitimate concerns that they may not be able to persuade predominantly white juries to convict cops who kill black men.

Elected prosecutors confront a huge conflict of interest when it comes to prosecuting cops.  The prosecutor needs police cooperation to prosecute cases successfully.  Any time law enforcement officers are angry at a prosecutor, that can spell huge political trouble for the prosecutor.

A run for mayor or governor may be permanently out of reach if disgruntled cops present their beefs to the media.  In a worst case scenario, the D.A. loses the next election and has to scare up paying clients and billable hours.   As a former government lawyer, who also practiced at a firm, I feel comfortable saying that many powerful public officials would rather risk letting a few bad cops walk than go into private practice.

Periodically, commentators call for compromised prosecutors to recuse themselves in favor of a special prosecutor.  There are two problems with this answer: 1) The prosecutor gets to decide whether to take himself off the case and most don’t perceive themselves as biased even if they are. 2) If a D.A. recuses herself and the cop is prosecuted successfully, the police are likely to be very very pissed off at the D.A. for not (mis)handling the prosecution and to make her life difficult in retaliation.

The real prosecutorial solution is for criminal complaints against officers to be handled by a non-partisan lawyer appointed by the state bar.  Not only would this insulate District Attorneys from politically fraught decisions whether to charge cops, it would also restore much needed credibility to the system as long as the independent prosecutor is perceived as fair to all sides.

I believe that prosecuting police should be the responsibility of an independent, politically insulated, prosecutor.  But, this would not be a panacea for the epidemic of police violence against black men.  For example, juries may still be unduly deferential to police defendants.

In addition, much needs to be done in terms of training officers to defuse rather than inflame combustible situations.  Body cameras may also help. Nevertheless, the LAPD officers who assaulted Rodney King with batons, were, like Dan Pantaleo, videotaped but acquitted.  Ultimately, we must provide societal redress for the terrible economic injustice in America that is causing many poor communities to seethe with resentment and barely contained anger.