THE BLOG
12/04/2014 09:34 am ET Updated Feb 03, 2015

A Call for Fair, Even-Handed Investigations of Potential Police Misconduct

White liberals tend to recoil from images of rioting like those we're seeing from Ferguson. Too messy and violent, out of line with their understanding of civil disobedience. But the Ferguson rage is a street level, intuitive expression of a legal and political reality still invisible to most- even the liberals among us: our system is contorted every day to protect cops, at the expense of the communities they are supposed to serve. And the Darren Wilson Grand Jury was just a particularly stark example of that reality.

There is not a criminal lawyer in the country who would tell you the Darren Wilson Grand Jury was led in an honest, even handed way. For laypeople, the simple explanation is that a Grand Jury is not a regular jury -- they do not decide whether a subject is guilty, beyond a reasonable doubt. They simply decide whether there's sufficient evidence- probable cause -- to indict, or formally accuse, a subject. It is a minimal standard, and as a result, grand juries virtually always indict, based on a simple and brief presentation of a minimum of evidence by a prosecutor. But the Ferguson Prosecuting Attorney actually acted as a defense attorney in the Grand Jury. It was like nothing I or any criminal or civil rights lawyer I know has ever seen. It was a mockery of the process.

Here in New York, we've had our own recent tragic deaths at the hands of the police. An unarmed, innocent Akai Gurley was shot and killed in a residential stairwell. And of course, Eric Garner was choked out in broad daylight on a Staten Island sidewalk, and went into cardiac arrest as a result. The reflexive community antagonism of the Giuliani years has given way to a much more subtle way of denying justice to the street. Rather than immediately demonizing the victims, Police Commissioner Bratton said there would be retraining in the wake of Garner's death, and he almost said "our bad," on Gurley, publicly emphasizing his innocence. But then the sale began: "... [I]t appears to be an accidental discharge," said Bratton.

Not just an "accidental shooting." An "accidental discharge." The Commissioner publicly formed his opinion without even the benefit of an interview of the offending officer. And granted few believe that the offending officer set out to slay an innocent man. But that wouldn't mean it was an "accidental" shooting. It would just as likely mean it was an intentional shooting, with accidental results. But an "accidental discharge"? "Accidentally discharging" a gun with a 12 pound trigger pull weight is like "accidentally" dropping a barbell out a fifth floor window.

And why was Bratton publicly voicing conclusions on an investigation in its infancy, with virtually no data in hand? It's because cops are protected, up and down the line. My firm sued a detective in the 75th precinct -- the same precinct as the Gurley shooting -- a few years ago. My client walked into the precinct fine and walked out with a jaw broken by an angry detective. The police explanation? Literally, "I don't know, I don't remember," about fifty times in a deposition. The City was glad to pay my client $215,000.00 for the affront, but of course, the detective never heard a word about it. As with Gurley, there was a mea culpa, with zero accountability.

This is not a call for an indictment of Gurley's killer. It is a call for fair, even-handed investigations of potential police misconduct, instead of the whitewashes that occur with any misconduct outside the frame of a video camera. Give a fair and balanced presentation to a Grand Jury, and let the good people of the community earnestly and honestly sort it out. And, by the way, stop denying felons the right to serve on juries, so the juries truly reflect the community.
As this post goes to press, in Staten Island, the Grand Jury declined to indict Eric Garner. In the face of clear video evidence that an unauthorized chokehold was used to subdue him for what was, at worst, a miniscule offense. And why an unauthorized chokehold? Perhaps the jitters of an occupying force in perceived enemy territory. Garner was a large black man. Gurley was a black man on a darkened staircase. Perhaps the arrogance of an occupying force -- you can see Officer Pantaleo sarcastically wave at the concerned camera man as they wheeled an unconscious Garner away.

Recently another minority gentleman, Diego Ibanez, perhaps fed up with the circling police wagons, allegedly threw red theatrical "blood" on the New York City Police Commissioner (disclosure- I am involved in his defense). He was of course immediately arrested, predictably overcharged, and jailed. His defense will not be an "accidental discharge." That would simply not be credible.