Four years ago, on December 3, 2014, a grand jury in Staten Island decided not to indict police officer Daniel Pantaleo in the death of Eric Garner, a 43-year-old African-American father of five.
The city of New York exploded in protest. Garner’s horrific death in July of that year had been captured on cell phone video. Police tried to arrest him, ostensibly for selling untaxed cigarettes — it is not at all clear that he was actually doing this at the time — and when he refused he was placed in what turned out to be a lethal chokehold.
He said “I can’t breathe” eleven times before succumbing, and those last words became an iconic rallying cry in anti-police protests around the country.
If ever a case should have gone to trial, it was this one. Garner was unarmed. A medical examiner pronounced the cause of death homicide. The city’s police commissioner, William Bratton, conceded Pantaleo had used a banned chokehold procedure. The only legal question was whether it rose to the standard of a crime like criminally negligent homicide, and the video alone seemed like evidence enough to make it worth sending to a jury.
But there would never be a trial, and this wasn’t unusual. In fact, after years of researching the case for a book called “I Can’t Breathe,” I learned ineffectual official responses are a primary characteristic of police brutality cases generally.
Going back decades we see the same pattern, over and over. An unstable police officer, who often has a long (but, illogically, not public) record of misuse of force, wounds or kills a civilian, usually a black or Hispanic male.
Most of these cases go unnoticed by the press, but in the ones that do capture headlines, public interest is intense but brief. From there, the pursuit of justice heads down two avenues, civil and criminal.
Civil payouts work with almost factory-like efficiency in some cities. Municipalities respond quickly to federal civil rights lawsuits, and in the worst cases the family receives an amount of money that ranges from a few thousand bucks to a lot, depending on the press attention. The Garner family ended up getting $5.9 million.
But money is all the system is designed to deliver, in most cases. The officer in question is rarely even disciplined by his precinct, much less indicted criminally. Family members who begin determined to fight for convictions often end up worn out by the slow pace of state and federal bureaucracies.
Eric Garner’s daughter Erica died of heart failure while waiting for news of a federal civil rights indictment that never came. Stress surely played a role in her death.
In the months leading up to her collapse, she often spoke to me about being exhausted by struggles against the New York City bureaucracy, for instance spending years trying to learn the abuse histories of the officers on duty that day — and only learning limited information thanks to a press leak. To this day, the city has not divulged much about the past of Daniel Pantaleo, who at least for now remains on the city payroll.
Then-Staten Island District Attorney Dan Donovan promised a “complete and thorough investigation,” and that’s what he delivered. Or, at least, it looked that way.
After the grand jury returned its decision to not indict, Donovan asked permission of the court to tell the public how thorough he’d been: he’d called 50 witnesses, 22 of whom were civilians, who heard evidence for nine weeks and saw 60 different exhibits. How could anyone argue with the results?
When I looked into the case, I found an unnerving pattern. Rather than using standing grand juries, which in New York are famous for hearing several cases a day and being willing to “indict a ham sandwich” in a snap, prosecutors in cop-slay cases often convened special grand juries who sat for months to hear just the lone case. From the death of 15 year-old James Powell in 1964 (whose killing triggered city-wide riots) to the asphyxiation of 22 year-old Ernest Sayon in 1994 (another Staten Island case, that saw seven months of grand jury hearings and over 100 witnesses), grand juries taking a very long time to not indict is a pattern.
Another part of the pattern? Press conferences following the non-indictment, in which the prosecutor — who ostensibly wanted to indict the officer, having brought the case to a grand jury and all — not seeming disappointed in the result.
The Garner case was a textbook example of how false doors and booby traps are built into city bureaucracies to prevent indictments of bad cops. A major weakness involves the grand jury system.
Even in Ferguson, Missouri, where a grand jury heard 60 witnesses before deciding not to indict police officer Darren Wilson in the death of Michael Brown, prosecutor Bob McCullough sounded almost pleased to have not secured an indictment. He reminded reporters that the grand jurors were “the only people, the only people” who had seen all the evidence.
But the secret nature of the proceedings made it impossible to know what had taken place in any of these grand jury hearings. Many African-American activists suspected prosecutors were essentially putting on defense cases in these suspiciously long, secret tribunals. There was no way to know. In Ferguson, when a grand juror sued for the right to talk about the case in public, courts rejected the request.
In the Garner case, multiple efforts to sue to unseal the grand jury records ended in failure. Here and there, how hard authorities fought to get indictments will forever remain a mystery.
Before she died, Erica Garner was fixated on making permanent a reform her family had helped win temporarily in New York: the appointment of an independent special counsel to investigate all police violence cases. It was her belief, and the belief of other parties like the NAACP, that local prosecutors inherently cannot be trusted to investigate police. On a day-to-day basis, they’re essentially partners; how can they watch each other?
As one former Staten Island prosecutor told me, a District Attorney who earns a reputation for busting cops will suddenly find his cases falling apart. There is such a strong incentive for prosecutors to stay behind the blue line, in fact, that they’ll avail themselves of any loophole – including the dumping of responsibility on anonymous grand jurors – to avoid having to put a cop in the dock.
Police have a difficult job and it’s unfortunate that in the cell phone age, a few very bad apples can so easily stain whole departments. But until we streamline the process to make sure that juries get to hear cases that obviously deserve a trial, there will be very little deterring police from bending the rules. And the only justice that most families get will be in the form of a check.