Two deaths: The crucial difference between Eric Garner’s case and Michael Brown’s

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The failure of two grand juries to charge white police officers in connection with the deaths of two unarmed black men, Eric Garner in Staten Island and Michael Brown in Ferguson, Mo., has tapped into oceans of grief and grievance engendered by decades, if not centuries, of injustices.

I don’t presume to offer any solutions for the wrongs in our society that have brought us to this moment. My limited goal is to observe, as a lapsed criminal lawyer turned full-time journalist, that the two cases are legally very distinct.

Let’s begin with the death of Eric Garner, 43, in Staten Island.

The video of Garner’s arrest may be one of the hardest you’ll ever watch, assuming you make the life-altering decision to view it. It shows a frustrated man, living a wrenchingly difficult life, who’s not going to take it anymore. He can’t face another arrest for a very minor crime—selling cigarettes that lack the requisite tax stamps.

Police then attempt to arrest him, as they believe is their duty.

Garner (6-foot-3, 350 pounds) resists, in that he does not submit to handcuffing. Four officers then forcibly bring him down. Then you see Garner’s life ebbing away before your eyes, as he keeps urgently repeating the words you’ll never get out of your ears: “I can’t breathe.”

To be sure, the police officers appear to believe that they’re acting professionally. (They know they’re being videotaped, in fact.) But one of them, Daniel Pantaleo, 29, is using what, to my lay eyes, looks unmistakably like a chokehold, which the New York City police department forbids. Chokeholds are outlawed because they’re too dangerous, and foreseeably lead to unintentional deaths. Like Garner’s.

The officer may have been trying to hold Garner in some other way, as he apparently testified before the grand jury. But the video shows a chokehold, from beginning to end. To me, that’s sufficient recklessness to support an indictment for manslaughter (in the second degree), and certainly sufficient negligence to support a negligent homicide prosecution. (If I drink and drive, and accidentally end up running over someone, I’m guilty. I might be a nice guy whose done good things in other aspects of my life, and I may not have meant to hurt anyone, but I recklessly did something that inherently endangers others’ lives, and I ended up killing someone as a result.)

Yes, Garner was obese and may have had a weak heart, and the police officers didn’t know how fragile his medical state was. Tough. That’s part of why chokeholds are banned in the first place.

What we know about the death of Michael Brown, 18, is different. There was unquestionably corroborating evidence—disputed, but plausible—that supported the officer’s contention that Brown posed a real threat to his life.

When officer Darren Wilson, 28, encountered Brown, Brown was walking in the middle of the road, obstructing traffic. He matched the police dispatcher’s description of someone who had just stolen a box of cigarillos from a convenience store. (We now know it was, in fact, Brown who committed the petty theft.) Wilson told him to get to the curb. Brown ignored him.

Wilson then blocked his path with the patrol car, and started to get out. Wilson testified that Brown approached the car, closed the car door, and punched Wilson in the head, maybe twice. (There was a bruise on Wilson’s head. Other witnesses confirm a struggle at the car.)

Wilson said Brown was very strong, and that he, Wilson, was scared. (Both men were 6-foot-4; Brown was 80 pounds heavier.) Wilson says he reached for his gun, and Brown then reached for it, too. At one point, they both had their fingers on the trigger, according to Officer Wilson. The gun fired twice while inside the car. One bullet entered the inside door panel and shattered the window within, which had been rolled down. A second apparently grazed Brown’s finger. Brown’s blood was recovered from inside Wilson’s patrol car and on Wilson’s clothing.

Apparently startled, Brown fled. Some witnesses said Wilson fired at Brown as he fled, which Wilson denies, but there were no wounds to Brown’s back.

At some point Brown reached a street lamp and stopped and turned. Wilson ordered him to get down on the ground. Brown didn’t.

As to what happened next, witnesses are all over the map. Some say Brown raised his hands, as if to surrender. But others—including at least one black witness—corroborated Wilson’s account, which is that Brown charged Wilson. Blood on the pavement reflects that Brown was moving toward Wilson. Wilson fired several times as Brown barreled towards him, head down, Wilson testified. (The fatal shot entered the top of Brown’s head.)

Two very different situations, in my view.

Also, two different grand juries. Prosecuting attorney Robert McCullough of St. Louis County, Missouri, has been roundly criticized for not obtaining an indictment of officer Wilson. Since a good prosecutor can “indict a ham sandwich,” as the saying goes, McCullough, it is said, should have just presented the damning evidence, and withheld the evidence in the officer’s favor. That way he could have won an indictment, and then a regular jury could have sorted it out at trial.

I disagree. It’s true that prosecutors don’t usually present all the evidence to a grand jury that might possibly weigh in the accused’s favor. But the omissions in the ordinary case are not factors that the prosecutor himself considers truly “exculpatory”—i.e., factors that he himself thinks warrant acquittal. They are typically just pieces of evidence that the prosecutor recognizes that a skilled defense attorney might be able to make some hay out of while trying to scare up traces of “reasonable doubt.” That’s different.

Prosecutors don’t typically indict unless they believe that the accused is really guilty. Nor should they. The indelible stigma of indictment—and the accompanying ordeal of the public criminal trial—wreck someone’s life in themselves. Prosecutors don’t make people do that, while secretly thinking to themselves: “Gee, I hope the jury gets this one right, because, to me, this guy looked innocent.”

Just think about it for a second. What would the mechanics of that look like anyway? There were witnesses in Ferguson who said they saw Wilson stand over Brown and shoot him in the back. Was McCullough supposed to present those witnesses and then just not tell the grand jury that the medical records showed no wounds to Brown’s back? Should the prosecutor have just concealed from the grand jury the whole episode about the struggle over the gun? Should he have called the witnesses who said Brown put up his hands in surrender, but then suppressed the ones who said he charged Wilson? All of those scenarios are unthinkable.

In cases where a prosecutor believes there’s a very real possibility that the accused is innocent, the prosecutor typically doesn’t seek an indictment at all. Obviously, as a political matter, that wasn’t a very attractive option for McCullough. It would have meant taking all the heat himself, while leaving him no opportunity to explain the basis of his decision to the world. Frankly, with the unusual option available to him under Missouri’s sunshine laws of ultimately releasing to the public all the evidence presented to the grand jury—so those who want to second-guess McCullough can do so—I think he took a very reasonable course.

Staten Island, once again, seems like a different story to me. We know less about what happened inside that grand jury, of course, so maybe I’m doing officer Pantaleo a grave injustice. Maybe there’s convincing evidence that emerged in his favor that I just don’t know about yet. As things stand, though, I tend to attach some weight to the demographics of Staten Island. While the borough of 470,000 accounts for only about 6% of the city’s population, it is home to about 18% of its uniformed police officers (3,000 of 17,000), according to The New York Times. It’s population is only 10% black.

That doesn’t mean the Staten Island grand jury was racist. But jurors do naturally see the world through the prism of their experiences and those of their loved ones and neighbors. The jury from downtown Los Angeles that acquitted O.J. Simpson in 1995 (nine blacks, one Hispanic, one white) clearly saw the evidence in that case through a very different lens than I did, as a white guy watching portions of the case on TV from 3,000 miles away.

There have been a lot of demonstrations throughout the country, including some right outside my office, since the “no true bills” were returned as to Wilson last week and as to Pantaleo two days ago. What I have written here has limited relevance to the broader issues that have triggered those outpourings of grief, frustration, and rage, and those broader issues need to be addressed.

But the criminal justice system appropriately strives to treat each accused’s case individually, on its own facts, and not as a symbol of wider injustices that may exist or “greater truths” that need to be learned. And that, hard as it is to accept at the moment, is our admittedly imperfect system’s strength.

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