Eric Garner and the Evidence of Things Not Seen
July 31, 2015 (Mimesis Law) — [Ed. Note: This will be our last post by Cristian, who was stolen from us by Huffington Post to serve as their Supreme Court and Legal Affairs staff writer. It has been an honor to have Cristian at Fault Lines, and his brilliant writing will be deeply missed. SHG]
It’s been a little over a year since the NYPD killed Eric Garner. His death on camera — together with Michael Brown’s in Ferguson a few weeks later — galvanized the #BlackLivesMatters movement and created a before and after for the public’s perception of American policing. Cops and communities will never be the same.
But the Garner case continues to be a topic in New York, for better or for worse. There was an executive order designating Attorney General Eric Schneiderman as a special prosecutor for cases such as Garner’s; a $5.9 million payout to the Garner family to settle an impending civil lawsuit; and an ongoing legal battle over release of the grand-jury minutes in the Garner case.
On this last front, civil-rights, community, and news organizations suffered a blow Wednesday when an appeals court in New York declined their request to release the grand-jury records in the case, most of which have remained under seal since Daniel Donovan, the Staten Island prosecutor, declined to marshal the evidence as to secure an indictment against Daniel Pantaleo, the police officer who applied the fatal chokehold. Donovan is now a member of Congress representing Staten Island.
“We argued that disclosure of the grand jury records is necessary to inform the community and its representatives in the legislature and allow for an informed debate regarding the issue of grand jury reform in cases involving lethal behavior by police officers,” said Arthur Eisenberg, the New York Civil Liberties Union’s legal director. His boss, Donna Lieberman, blasted out a tweet where she said the court’s decision meant “secrecy triumphed over #justice.” An appeal is expected.
If these cries of injustice feel tired and anticlimactic, it’s because the grand-jury ship sailed a long time ago. Not only is this case-within-a-case an attempt, in civil court, to obtain disclosure of whatever Donovan presented or did not present to a grand jury, but the outcry does absolutely nothing for the Garner family or the public, both of which already have a very clear sense that a prosecutor serving a conservative, largely pro-police area never intended to obtain an indictment against Pantaleo. The criminal case won’t be revived. Federal prosecutors probably won’t bring separate civil-rights charges against Pantaleo. And the settlement offer to the Garner family is already a done deal.
So what could these groups and their ringleader, New York City Public Advocate Letitia James, possibly want out of this disclosure? Is there anything the revelations will yield that will sway public opinion in a different direction? Perhaps a detail so egregious that lawmakers in Albany will have no choice but agree that a special prosecutor and body-cameras need to be permanent creatures of statute?
Truth is, all the evidence the public needs is already out: the original Eric Garner video, caught in a cell-phone camera, plus an 11-minute, “uncut” companion released by the Daily News days before the case’s one-year anniversary. If journalistic detail and drama are preferred, the New York Times published a lengthy investigation that purported to go beyond the chokehold that killed Garner, complete with witness interviews, quotes from onlookers, and an extensive review of official documents.
The facts are out there. And the grand jury may not have spoken but public opinion already did, and it determined that there was probable cause for an indictment. That officers Pantaleo and Justin Damico did use unreasonable force in their takedown of Garner. That the system was rigged by a politically motivated prosecutor. That grand-jury witnesses, other evidence, and even the law were accommodated to fit the sensibilities of the majority voters in Staten Island.
If the Garner case and all the others where black lives have been destroyed have taught us anything — Tamir Rice, Walter Scott, Sandra Bland, Samuel DuBose — it’s that the public will no longer wait for public institutions to give them answers. They won’t wait for a court opinion, a lawmaker’s bill, or an executive order to give them what they consider to be justice.
And justice to them is not body cameras for every cop or grand jury reform or even better policing and community relations. Justice is simply not having to watch one of their own, time and again, blown out on camera by those who once swore an oath to serve and protect them. Or as Ferguson activist Johnetta Elzie once put it: “Our demand is simple. Stop killing us.”
Disclosure of grand-jury records won’t accomplish that.
Main image via Flickr/Mike Mozart