12/04/2014 08:01 am ET Updated Feb 03, 2015

Improving the Justice System Following the Deaths of Michael Brown and Eric Garner


On the heels of a grand jury's decision not to indict a police officer who shot and killed an unarmed black 18-year-old in Ferguson, Missouri, comes news of another grand jury declining to indict another police officer who killed an unarmed black man. This time, a special grand jury empanelled in Staten Island, New York concluded that it lacked reasonable cause to indict NYPD officer Daniel Pantaleo for his use of a physical tactic that resulted in the death of Eric Garner in July.

Garner, a 43-year-old father of six, was allegedly peddling untaxed cigarettes when he was approached by police. After a brief exchange where the defiant Garner told officers not to touch him, he was tackled to the ground by Pantaleo. While in a chokehold -- a tactic prohibited by the NYPD -- Garner began struggling for air. A video of the incident captured Garner's final words: "I can't breathe. I can't breathe."

Garner died shortly thereafter. The cause of death was "compression of neck (chokehold), compression of chest and prone positioning during physical restraint by police," leading the coroner to rule it a homicide.

As with the St. Louis County grand jury that declined to indict Ferguson police officer Darren Wilson for the death of Michael Brown, the Staten Island incident has infuriated many in the public. It has also furthered distrust of the police, especially within the black community.

In Ferguson, outrage turned to rage, fueling two separate riots: one in response to the August 9 shooting and the other in response to the grand jury's decision. Both periods of unrest have resulted in dozens of injuries and dozens of establishments being looted and burned.

Equally troubling, race relations in the United States have been set back as a result of events in Ferguson. The decision of the Staten Island grand jury will surely do nothing to help bridge the expanding divide.

A large part of the problem stems from the grand jury process itself. First, as with the death of Michael Brown, the prosecutor presenting a case to the grand jury is often a local official who has a working relationship with the police department -- and occasionally with the particular officer(s) -- he or she is tasked to investigate. As the opening of every Law & Order episode reminds us: "In the criminal justice system, the people are represented by two separate yet equally important groups: the police who investigate crime and the district attorneys who prosecute the offenders." It's hard to be impartial when you're targeting someone on the same team.

Second, grand jury proceedings are secret. Where there's a lack of transparency, there's suspicion. Without knowing exactly what prosecutors told jurors in the Michael Brown case, there's no way to know with certainty if prosecutors forcefully pressed for an indictment of Darren Wilson. It's this uncertainty that breeds distrust of the criminal justice system. And when people feel wronged by the system, their frustrations mount.

There are, however, two steps that we can take to undo these perceived miscarriages of justice:

  • Every state should place officer-involved lethal incidents under the jurisdiction of a deputy state attorney general charged with handling all criminal proceedings where state and local law enforcement officers are potential defendants. Because these lawyers and investigators would rarely, if ever, work with police officers on a day-to-day basis, they would operate with a healthy degree of objectivity and independence.
  • Every state should require that, in all officer-involved homicide proceedings, the indictment be pursued through the visible preliminary hearing process as opposed to the secretive grand jury process. In the United States, presenting evidence to a judge in open court is a legally permissible alternative for establishing reasonable cause to support bringing a criminal matter to trial. Generally, prosecutors avoid such hearings because it offers defense attorneys an early peek at the evidence against their clients. But given the national importance of preserving public trust in the criminal justice system, foregoing the prosecution's discovery advantage for greater candor seems like a prudent trade-off.

Did Darren Wilson and Daniel Pantaleo receive special or unorthodox treatment from prosecutors that resulted in the return of a "no bill"? It's difficult to answer this question because the grand juries handling both of these investigations met behind closed doors.

By requiring that an exclusive team of prosecutors handle all proceedings against police officers who kill civilians and that this team secure indictments through the preliminary hearing process, we can go a long way toward promoting transparency, fairness, accountability, and justice for all.