Five days before our client Eric Garner was killed, weeks before Michael Brown was shot in Ferguson, and months before New Yorkers swarmed the city demanding justice for victims of police violence, another forty-something-year-old black man, Jeff Thomas, was severely beaten by Staten Island police in broad daylight. It happened on the same block where police choked Garner to death. This too was captured on video. Watch it on YouTube.
As the families of Amadou Diallo, Ernest Sayon, Ramarley Graham, Patrick Dorismond, Kenneth Chamberlain, Akai Gurley, Anthony Baez and Sean Bell know, police abuse is nothing new. Eric Garner knew it. Jeff Thomas, the man assaulted on the video, knows it too.
Seven of the ten most-sued police officers of the 35,000-member New York Police Department are in Staten Island. These suits are typically settled, with millions of dollars of taxpayer money being paid to the victims. Yet these officers are still on the streets making arrests. When our clients are assaulted, they are routinely charged with resisting arrest or assaulting an officer—attempts to justify the brutality. It becomes the accused’s word against the officer’s. This pits mainly poor men of color labeled as “criminals” against officers sworn to “serve and protect.”
When civilians are arrested, their basic constitutional rights are frequently violated, often with complete impunity. Many are interrogated without being read their rights, or pressured into waiving them. But when an officer is investigated for wrongdoing, an entire system mobilizes to protect him.
There is no system of checks and balances when a D.A. is tasked with prosecuting a colleague. Police officers bring the D.A.’s office arrests to prosecute, they serve as witnesses for the prosecution, work to investigate the prosecutor’s cases, visit crime scenes together and jointly interrogate suspects. Can we really expect the same D.A.’s office to investigate and prosecute an officer it routinely works with and relies upon? They are a team in every case.
Grand jury proceedings are criticized when they fail to indict officers who kill black and brown men. No one knows what happened in those proceedings because they are secret. We can draw some logical conclusions, including the failure of a prosecutor to scrutinize and interrogate an officer who is now a defendant. It is unreasonable to expect a prosecutor to effectively and objectively charge a police officer who the prosecutor not only relies on to achieve convictions, but who is a member of a very powerful political lobby affecting the prosecutor’s re-election hopes. There was significantly more evidence against Daniel Pantaleo than in the majority of cases that are indicted.
Nearly every public defender will tell you that cases with much less evidence are indicted in a matter of minutes. The typical indictment will require the testimony of only one or two witnesses and will rarely involve video evidence or reports from medical experts. Even when the defense attorney has questions or evidence she would like submitted to the grand jury, the prosecutor can and often does refuse to submit them.
But in the case of Garner’s killing, despite video evidence and the Medical Examiner’s report ruling the death a homicide, the grand jury failed to indict on any charge. There is absolutely no excuse for the results in the Pantaleo grand jury. An apparent theory as to why this case was not indicted is the presentation by the Richmond County District Attorney’s office, which was intrinsically affected by their close affinity to the officers involved.
Another key difference between the way the system treats accused officers and accused non-members of the police force is the invoking of the right to counsel. The N.Y.P.D. Patrol Guide stipulates, “All members of service who are the subject of an official investigation or are a witness in an official investigation, shall be given a reasonable period of time to obtain and confer with counsel prior to questioning.” The official given purpose is “to protect the rights of the member of service,” without the offending officer needing to explicitly invoke his or her rights. When a non-officer is accused of a crime, invoking his or her Miranda rights is the typically the role of the accused and their defense attorney. Yet, when a police officer is the accused, the entire department and district attorney’s office defer to an employment policy, rather than the overarching public interest of investigating serious crime by police officers.
If we as a society expect police to be held accountable for unlawful, and sometimes abusive and deadly actions, we must rid these cases of secrecy, favorable bias, and conflicts of interest. Immediate answers include independent prosecutors and investigators, or employing the use of public preliminary hearings. As Judge Damon Keith of the 6th Circuit Court of Appeals warns, “democracies die behind closed doors.” Secrecy is the antithesis to having a legitimate and effective criminal justice system.
Meanwhile, Jeff Thomas, the man beaten in broad daylight five days before Eric Garner was killed, awaits trial for resisting arrest this January.