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.