By Robert Weiner an Joseph Abay, Originally Published in The Michigan Chronicle
Solidarity rally and march for Michael Brown in response to the Furguson grand jury decision
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There is a way to achieve justice: PROSECUTE THE PROSECUTORS. The law provides that victims and families of victims can sue in cases of prosecutorial malfeasance. Prosecutors are rarely charged criminally, and even more rarely convicted criminally by reluctant courts who work with them, but it can and should happen when merited. The families should not be faced with a brick wall of prosecutors they think are immunized from action when lawsuits are in fact possible especially in glaring circumstances. Civil suits against the prosecutors are another route for damages for Eric Garner, Michael Brown and Tamir Rice's families.
The three cases would be very different from one another but the most glaring is the Staten Island case, where a video shows store-owner Eric Garner first rationally asking what he had done and then gasping during a choke hold barred for over 20 years, saying many times before dying, "I can't breathe." Daniel Panteleo, the officer who choked Eric Garner, has several complaints of false arrests and unwarranted and unlawful strip searches, and police have had to settle.
People believe a grand jury's proceedings are totally secret but in fact, witnesses who testify are free to come out and say what happened inside. Ramsey Orta, the Staten Island videographer, told the press that he was made to testify in only a cursory way, for 10 minutes, and during his testimony, the grand jury members were tweeting and texting, paying little attention. The prosecutor, who runs the show, essentially blew off Orta, clearly wanting to get rid of him as soon as possible.
This man had likely the most important onsite evidence proving murder. It was the Zapruder film of the case. The coroner had five options from "undetermined causes" on down but branded the situation specifically the most forceful--"homicide" -- and stated that the "choke hold" and "pressure" on the chest killed the victim. The man who was there, shot the video, saw it all unfold, saw the angles, saw the time durations, and saw the result -- was blown off.
Ten minutes? The jury playing around, ignoring it? The prosecutor not asking the jury to focus, and the prosecutor not asking this witness penetrating questions for several hours? This seems a preeminent potential case of holding prosecutors accountable.
In Ferguson, there was no video evidence (revealed to date), other than Mike Brown lying unattended for four hours after the shooting, and the case was muddied by some conflicting witnesses regardless of veracity. However, Prosecutor Bob McCulloch has asserted on many occasions he would have joined the police force if not for medical issues. His father, who was a police officer, was allegedly killed in 1964 by a black man. Regardless, he claims it was "not something that clouds my judgment."
But the Assistant Prosecutor, Kathy Alizadeh, opened the door wide to a malfeasance case. The Assistant Prosecutor told the jury and handed out an old state law, right before the policeman testified, that it was legal for him to shoot a fleeing suspect, a law that was overturned by the Supreme Court in 1985, making it NOT legal. Two weeks later the assistant prosecutor told the jurors that "the information was incorrect" and did not explain to the non-lawyer jurors WHAT was incorrect. The assistant prosecutor also told the jurors that neither the difference between what they were told initially nor the Supreme Court's power to override the earlier state law were significant. The assistant prosecutor told the jurors these were "not important," and said this is not "a law class." Here "fraud against the court" is a prosecutable offense -- that has been won against prosecutors.
It wasn't relevant that the policeman committed likely illegal acts if you know the right law? Obviously Brown got from the car to 35 feet away as he was shot further. Let alone that the policeman was never confronted about why, regardless of the earlier fight in the car, when Brown was later 35+ feet away and he then knew he was unarmed, even if Brown was running toward him (in doubt, but say it's true), the policeman didn't shoot the final shots at legs to disable rather than the head to kill? Both the Assistant Prosecutor and Chief Prosecutor are culpable here for not aggressively penetrating these issues, as well as the intentional disinformation and obfuscation of the law.
In the Cleveland case, the merits were also strong--the 911 caller SAID it appeared to be a toy gun and a young boy (he was 12).
When my (Bob's) wife and he were subpoenaed, and Bob as White House staffer brought in as a witnesses (who knew nothing) for Ken Starr's Monica Lewinsky-Whitewater Grand Jury prosecution of Bill Clinton, we knew it was simply harassment by Starr to send a message to intimidate federal employees. He couldn't have picked a worse couple for that. Right after the testimony, Bob and his wife went out on the courthouse steps and said, "This is Big Brother at its worst." His wife added, "This isn't Nazi Germany." There were 60 TV cameras, live CNN, and every major newspaper outside on the steps. The statements were the lead of Brokaw and Jennings that night. The upshot was that the New York Times credited Bob for being the first Starr grand jury witnesses to call out Starr, the prosecutor, for "overreach." After that, all the Clinton witnesses went out on the steps and expressed similar outrage, and Starr's popularity fell.
Mickey Kantor, Clinton's Trade Representative and campaign chair, called to suggest Bob sue Grand Jury Prosecutor Starr for overreach under the law. That was a "right." However, in this case, we believed the strategy of ongoing media embarrassment of Starr for what he was doing was better and maintained a higher credibility since everyone would believe a lawsuit was political. So whatever works, but at least challenge the prosecutor.
The Prosecutors (and assistant prosecutors, who should also be named) in Staten Island, Ferguson, and Cleveland were dealing with life and death, and blew the deaths off by disinterest, laying blame anywhere other than on the police in order to maintain cozy relationships with the police and courts they deal with in the rest of their cases. They were not acting like a prosecutor at all but more like a defense attorney confusing the jurors to lay doubt.
There are a lot of good ideas being put forward: police body cameras, better training, more community policing, less militarization of police equipment, use of federal civil rights cases, civil cases against the policeman involved, moving cases away from then locality, and of course, massive public protests These are all excellent approaches. But each process may take months or years to achieve results.