Non-Indictment of Officer Who Killed Eric Garner

There’s a video of a law enforcement officer (“LEO”) choking Eric Garner to death.  Yesterday, a grand jury failed to indict.  This comes on the heels of a non-indictment in the shooting death of Ferguson teenager Mike Brown.  The system functioned the way it always does in these cases, and in fact the only way it could function.  I’d like to focus on why.

Let’s make sure we understand a few things.

  • Indictment

The grand jury/ indictment process is designed as a small check on the massive power of every prosecutor.  Grand juries are supposed to indict if the State has “probable cause” even if the grand jury is far from being convinced of guilt.    They are part of the court system, but there is usually no judge present, and the DA runs them.  GJs are one-sided as opposed to adversarial, and the defendant is rarely allowed even to testify.  GJs almost never see exculpatory evidence, because guilt/innocence is not their question.  The whole question is whether the State has enough evidence of a crime.  Normally, grand juries keep prosecutors from bringing utterly frivolous, made-up cases.

Every day, grand juries indict people who later turn out to be innocent.  Every day.  “A prosecutor can indict a ham sandwich,” the saying goes, because the bar is so low.  A prosecutor can get an indictment virtually every time.  (Grand juries failed to indict in eleven of the 162,000 cases brought by the federal government in 2010.)  It’s just an indictment.  It’s just the State saying you’re accused of a crime and the grand jury saying, “Okay, that’s not complete BS.”  Easy-peasy.  Rubber stamp.  If it turns out that the defendant had a justification, such as self-defense, he can take that to a trial jury; it has no place in the GJ.

  • Relationship between prosecutors and law enforcement officers

I’m white.  As is true for many middle-class white people, law enforcement officers (I’m using the shorthand “LEO” for Law Enforcement Officer here) have usually treated me appropriately, and I was usually a victim, witness, or speeder.  Until I got into law, I’d had very little contact with the criminal justice system, personally or in my circle of family and friends.  I assumed the system worked pretty well, even if it sometimes made mistakes.

I thought LEOs investigated crimes and arrested bad guys.  Turns out that’s not exactly it.  Even assuming the best intentions, what happens is that LEOs discover a crime, begin to investigate, decide who the bad guy is and then stop investigating.  From then on, what they do is to build the State’s case against the suspect.  Investigating is when you gather all information, regardless of whether it fits with your story.  Building a case means you only gather what helps your side.  I believe that most LEOs believe they’ve got the right guy, but exonerations tell us that they regularly get that wrong.

I used to think LEOs were neutral. The first time I observed a criminal trial, I was shocked to see the police sitting at the prosecutor’s table.  Now I know that LEOs are an arm of the prosecution, and that this is not hyperbole:  they’re on the same team and it’s them against you, if you’re a suspect.

  • Why they’re never indicted

What happens in these LEO indictment situations is that all of the relationships and incentives that are supposed to keep the adversarial process working get skewed, with predictable results.  The homicide victim’s family is suddenly the adversary of the prosecution team — prosecutors usually work very closely with victims’ families, who testify for the State.  Here, instead, the accused is a member of the prosecutor and LEOs team, and is only “formally” an adversary.  The investigators aren’t motivated to build the case if they think the LEO’s actions were justified.  The chance of indictment is almost 0% in LEO cases rather than almost 100% in all the other cases.  The prosecutor is motivated to lose the case, and to put on exculpatory evidence including defendant testimony.  All of this means that the system works more or less backwards, with incentives for the wrong outcomes.  There are serious consequences for the status quo and players if there is an indictment.

The grand jury process is supposed to be a check on prosecutors but in LEO cases, because everything works backwards, they can use it instead to short-circuit the larger process, protecting the accused LEO from a real trial and true public scrutiny.  No indictment means Boom! the criminal case is over.

The bottom line is that we don’t have indictments in these cases because the incentives are all wrong.  The ones responsible for investigating and prosecuting them are motivated to see the whole thing go away, and they have the power to make that happen.  They have that power and they use it.  No surprise — that’s what people do with power when they have it.

  • It’s the system

We can criticize individual prosecutors and investigators, but the real problem is the system.  What’s wrong is that we are asking prosecutors and LEOs to investigate and prosecute their own, and it’s unreasonable on our part to expect an outcome different from the one we’re getting.

They’ll continue to abuse that power until we take it away.  It’s time to take it away.

I think the way to do this is to give it to some kind of public board under the court system.  Citizen review boards have been proposed and even established in some places, and I don’t know much about them, except that they must overcome significant LEO resistance.  That’s the best idea I have, but maybe there are better ones.

All I know is that something has to change.  What we have doesn’t work, and can’t.  It’s been not-working for a long time, but maybe right now we in the mainstream are paying enough attention to see it.  Maybe we’re outraged enough to demand that when LEOs kill one of the people they’re supposed to protect and serve, that there be a real process for determining whether it was justified.

The one good thing I can see in all this is that because the indictment process functioned exactly the way it always does in “officer-involved” killings, the rest of us can now see what that looks like.  Had there been indictments and had these cases gone on to trial, momentum for change would have been lost, the “let the system work” voices would have grown, and in the end, it’s likely that there would have been no convictions.  Maybe this way, we can bring some integrity to the process. I’m sure that will be cold comfort to the families of Michael Brown, Eric Garner, and all the rest, but maybe we can prevent the next ones.

No, he’s not going to jail for convicting an innocent man.

Big news that for the first time ever, a prosecutor will serve jail time (only 10 days, but still) for his role in convicting an innocent man.

I’m celebrating, of course, but I’m concerned that the headlines are wrong in an important way.  So many headlines are like this one, saying that Ken Anderson will go to jail “for wrongfully convicting” Michael Morton, an innocent man who spent 25 years in a Texas prison.

Morton’s loss is impossible to wrap my head around, and I hope it’s the focus of lots of attention, because it reminds us how important all this is.

But we need to keep in our sights that Ken Anderson is not going to jail because of wrongful conviction.  Our system is human-based, and it can make mistakes.  Wrongful convictions can happen honestly, especially in close-call situations.  But a mistake is not what happened here, and not what Anderson is to be punished for.

Anderson is NOT going to jail for convicting an innocent man. Any prosecutor acting in good faith could convict an innocent person.  Anderson is going to jail because he broke the law, behaved in an egregiously unethical manner, and abused the vast power entrusted to every prosecutor.

He’s going to jail for intentionally failing to disclose evidence that Mr. Morton did not kill his wife.

Then, he continued to fail to disclose it for the next 25 years.  After the trial, he woke up every single day and didn’t disclose it.  He was rewarded and became a judge.

Morton, knowing the truth, woke up every day in a prison. So, it’s easy to focus on Morton’s situation.  His wife was murdered, and that would be enough for anyone, but then he was convicted of that murder.  Unimaginable.

And it’s almost as easy to focus on how illegal and unethical Anderson’s actions were.  And they were.

But we need to turn our attention, at least briefly, not to Morton, and not even to Anderson, but to the fact that we have a system that allows and even rewards prosecutors who do this. Most of the “villains” in (true-life) exoneration stories have gone on to better career positions, such as police chief or judge.

Scrupulous prosecutors — the ones who don’t withhold evidence, who offer reasonable plea deals, who charge fairly, who keep their minds open to the possibility that they are capable of human error — they don’t get as many wins, and they don’t get the big cases because the way to get big cases is to win the smaller ones.

I don’t know what the fix is, but it would be a start if we — as a society — could acknowledge that the game is rigged.

Maybe there is no good alternative to vast prosecutorial discretion, but I wish we could find ways to reward the men and women who do the job with honor, dignity, and fairness.


Under the Hood: Full length videos of Guantánamo conversation now available!

OK, what do you REALLY know about Guantánamo?

None of us have time to stay up to speed on all of the forms that injustice takes, even in our own country. But if you have a few minutes, Frank will school you pretty efficiently on this one. You can get a good sense from this Highlights Video (5 min).

It’s a very good thing that people like Frank are out there fighting for the rights of these men.

If you don’t care about the men themselves, consider the effect on the whole criminal justice system when we short-circuit due process this way. It sets precedents that affect those who come afterward. And this is the very same system that someone you care about may one day get caught up in, innocent or not.

We are so thrilled to offer you this chance to look “under the hood.”

The more we know, the better it all works.


Part I: What is Guantánamo? Who are the detainees? Have any been charged? Have any been released?

Under the Hood: An Inside Look at Guantánamo with Attorney Frank Goldsmith. (Part 1 of 4) from Equal Justice Collaborative on Vimeo.


Part II:  How did you get involved? What is it like to represent these men? How is the legal process different? What is it like to visit Guantánamo?

Under the Hood: An Inside Look at Guantánamo with Attorney Frank Goldsmith. (Part 2 of 4) from Equal Justice Collaborative on Vimeo.


Part III: What can you say about these cases? Didn’t WikiLeaks reveal everything that was confidential? What can you say about Khairullah Khairkhwa, who was swapped for Sgt. Bowe Bergdahl? What is the Taliban?

Under the Hood: An Inside Look at Guantánamo with Attorney Frank Goldsmith. (Part 3 of 4) from Equal Justice Collaborative on Vimeo.


Part IV:  What do you think about the swap? Can/should Guantánamo be closed? Would you do it again?

Under the Hood: An Inside Look at Guantánamo with Attorney Frank Goldsmith. (Part 4 of 4) from Equal Justice Collaborative on Vimeo.


- Props to Frank, and to Nate Torrence, who shot and edited the whole thing -

Under the Hood: An Inside Look at Guantánamo

Under the Hood: An Inside Look at Guantánamo from Equal Justice Collaborative on Vimeo.

Attorney Frank Goldsmith has a near-unique perspective on the US military base in Guantanamo and the supposed terrorists who have been detained there, most of them for years without charge. Frank has represented five of these men, most recently Khairullah Khairkhwa, who, along with four others, was exchanged for Sgt. Bowe Bergdahl in late May.

Frank has top-secret security clearance. He’s seen the government’s evidence against his clients, and he’s been to Guantanamo. Which puts him in pretty select company.

We sat down with Frank (full disclosure: Frank is on our board) to hear his perspective. The material was so rich and Frank so articulate, that we put together this brief excerpt video to tempt you into watching the full conversation, which we expect will be available by the end of the week.

Enjoy. We think you’ll learn a thing or two.

Many thanks to Frank, and to Nate Torrence, who shot the video and did all the video editing. –kl

Open Letter to Asheville Citizen-Times Columnist John Boyle

John Boyle’s recent column here.

An Open Letter to John Boyle of the Asheville Citizen-Times:

Thanks, John Boyle, for your willingness to re-think your position about something as important as the death penalty. You made several excellent points. I’d like to add some of mine.


When a person is charged with a crime, it’s the government that brings, prosecutes, and rules on those charges. So many of us don’t trust the government. How is it that we trust the government in this life-and-death arena?

It’s not all about guilt or innocence, either. It’s about getting the worst of the worst. We are trusting the government to identify the most heinous crimes committed by the most heinous criminals, and to do so with integrity. But are we paying attention to whether the government is trustworthy? Or do we simply throw people over the judicial and correctional wall, once the arrest has been made?

Do we know, for example, that the death penalty is only for aggravated murder, but a person involved in some lesser felony can be given the death penalty – even if he doesn’t kill anyone, never intends physical harm, doesn’t know anyone has a gun, and the actual killer gets less/no punishment? Do we know that savvier criminals often “cooperate” with the government, while those who have less criminal experience get the harsher sentences?


When we spend this kind of money on prosecuting and defending death cases, we have to spend less elsewhere. I’d rather see us put our limited government resources into solving other murder cases, helping victims and their families, and preventing the next murder. There are plenty of unsolved crimes out there. There are traumatized victims and family members who can’t afford the help they need to survive and heal. And we know some things about prevention. But we can’t do it all. We have to choose where we put our resources.


The race of the defendant is important, but not as significant as the race of the victim. A black person who kills a white person is statistically much more likely to get the death penalty than a white person who kills a black person, even when the crimes are similar. One study said this was twenty-two times more likely. This doesn’t mean that anyone is doing this on purpose.   I don’t believe most prosecutors are calculating to condemn more black people or more killers of white people. But they bring cases they think they can win, and part of this decision is intuitive and based on what is going to seem more horrific to juries. As a society, we are simply more horrified by a white girl being dead at the hands of a black man than a black girl being dead at anyone’s hand.  That’s racism, even if we’ve never thought about it this way. If there is racism in a community, it’s going to be in every jury.


In capital cases, the selection process removes potential jurors who are opposed to the death penalty. These days, that’s not a few “extremists” – it’s about half the population, depending on how you ask the question, and their removal affects the makeup of the jury. Using “peremptory strikes,” the government regularly keeps minorities off juries even when race is not directly at issue in the case.


It’s wrong to assume that all victims’ family members want the death penalty. Some do, some don’t. There are good reasons for this. Some are clear early on that another death won’t help. Others begin in understandable rage and vengeance, but then work through to a place where they can somehow move on and try to rebuild their shattered lives. They don’t want to keep reliving this in the courts. Some even forgive. It’s wrong to assume that the death penalty is the best thing we can do for victims’ families.


The death penalty begs the question of the purpose of punishment. Is it to protect society? If so, then life without parole will do.

Is it to deter crime? Most of us don’t need any kind of punishment to keep us from killing each other. We have a functional moral compass. Normal, mentally healthy people don’t murder. The ones who are likely to kill people are generally not rational – whether from blind rage, mental illness, drunkenness, or drug abuse – and are therefore not really thinking about the consequences at that moment. The more rational killers don’t believe they will get caught.

Is it something more primal – to somehow give vent to our outrage and attempt to right the wrong? This can never be done. Nothing we can do will right the wrongs when someone we love has been murdered. His life simply doesn’t have the same value to us as the life he took, so there is no way he—or we—can make this right using punishment. And when we try, we invariably give in to our baser, more violent instincts and find ourselves sinking dangerously close to the murderer’s level.

Last thought:

I know many people who support the death penalty from a moral perspective. They believe that some crimes deserve death. They also understand, however, that our system cannot be made to be fair and reliable when it comes to these cases. The many exonerations show us that nothing—not confessions, not eyewitness testimony, not government forensic evidence, not law enforcement testimony—is reliable enough to justify executing people. And even though there are cases where the evidence is so very strong, and the crime is so very horrific, and the defendant seems so very irredeemable, there is no way to design a system that catches only those cases. And even if we could, we can do more good using our resources other ways.


NYT: Justices Return to a Death Penalty Issue

NYT: Justices Return to a Death Penalty Issue

The US Supreme Court has said that it violates the Constitution to execute someone who is mentally retarded.  But the Court has never articulated a definition, leaving that to each individual state.  There has been much litigation over the definitions.  Some states are outliers in terms of their definitions, and Florida is one such state.  The US Supreme Court has just taken a case in which the man convicted has been found to be mentally retarded, but does not meet Florida’s definition.