Brown, Garner & Race

For those counting at home, two white police officers in as many weeks have now been let off the hook for terminating the lives of unarmed black civilians. To be clear, these officers were not acquitted at trial; they will not even face trial. Grand jury proceedings are not trials. There is no adversarial process, no cross-examination of witnesses, no opposing counsel.

The August 9 murder of unarmed 18-year-old recent high school graduate Michael Brown in Ferguson, Missouri, and the St. Louis County grand jury's subsequent failure to indict Darren Wilson, the Ferguson Police Department officer who shot him to death, was disheartening. In that case, however, there was at least some degree of ambiguity as to the facts. We have Officer Wilson's account, which, again, was not cross-examined in court. Officer Wilson ensured that Michael Brown would not be able to relay his side of the story by ending the teen's life, though the vast majority of witnesses gave accounts that ran counter to that of Wilson.

The July 17 Staten Island, New York, homicide of 43-year-old unarmed father and grandfather Eric Garner entails none of the questions surrounding the facts as in the case of the tragedy in Ferguson; this homicide, so ruled by the New York City medical examiner, was recorded on video. The gut-wrenching footage of his untimely demise shows New York City Police Department Officer Daniel Pantaleo applying a chokehold - a racially charged maneuver, it should be noted, in its disproportionate deployment on the black community - to Mr. Garner, whom the NYPD alleged was unlawfully selling cigarettes, known as "loosies." Mr. Garner, in his final moments of life, can be heard gasping, "I can't breathe," a sentence he uttered no fewer than eleven times. Not insignificantly, the NYPD banned the use of the chokehold in 1993.

Grand juries return indictments nearly automatically upon the request of the prosecutor. In order to obtain an indictment, the prosecutor must meet a low bar; she or he need only establish that there is probable cause to believe that a crime has been committed by a criminal suspect. I therefore find it flabbergasting and nothing short of maddening that the New York City grand jury viewed the videographic evidence of Mr. Garner's murder and failed to return an indictment. Officer Pantaleo needed to release his chokehold on Mr. Garner upon the latter's attestation of "I can't breathe," but that did not happen. If Officer Pantaleo's objective was to subdue Mr. Garner, mission accomplished. If Officer Pantaleo's objective was something further than subduing Mr. Garner... well, mission accomplished. Regardless of motive, grand jurors watched Eric Garner say eleven times, "I can't breathe," and proceeded to watch the officer not release Mr. Garner, but instead continue choking him. One strains to understand how this particular grand jury came to its conclusion. All the grand juries in New York and in Missouri needed to do was to determine that there was enough evidence to move forward with a trial.

In both cases, we are left to consider whether the respective prosecutors did not try to obtain an indictment. St. Louis County Assistant District Attorney Kathi Alizadeh, for example, rendered false instructions to the grand jury, representing that it was lawful for a police officer to kill an unarmed suspect who was fleeing, pursuant to Missouri law. In 1985, the Supreme Court of the United States held in Tennessee v. Garner that it was unconstitutionally violative of the Fourth Amendment to employ deadly force against a fleeing suspect. Federal law trumps state law, thereby striking down the Missouri statute cited by ADA Alizadeh. Later in the proceedings, the ADA made an attempt at correction that can at best be characterized as half-hearted: according to the grand jury transcript, she informed the jurors that the statute she cited "might not necessarily" comply with the law, without enlightening jurors as to any details. When a juror pressed for said details, the co-prosecutor replied, "we don't want to get into a law class."

I feel awful for the families of these victims; as though it were not devastating enough to lose their loved ones, now they will not get justice. As a white man, I cannot begin to understand what it is to be black in America. My black counterparts face realities that I never will. I do not have to worry about an officer misconstruing innocent movements such as my hands in my pockets or lifting my shirt. I do not have to worry about being stopped, whether in my car or on foot, on account of prejudices and stereotypes.

The Fourteenth Amendment to the United States Constitution provides for "equal protection under the laws" for all residing within our borders. While I believe that our system of jurisprudence is the best such system in the world for a multitude of reasons, I am also under no illusion that it is perfect. The last few weeks have drawn widespread attention to this reality that is not news to the black community. Police officers and prosecutors must be held accountable in order to earn the trust of all facets of the multi-ethnic, multi-racial tapestry that is the story of our great nation. Here's hoping we are on the precipice of real accountability and reform.