Washington, DC, December 9, 2014 --  

Catching bad cops on video doesn't prevent injustice. But it makes it impossible to deny unjust acts.

When a grand jury refused to indict a police officer for the shooting death of 18-year-old Michael Brown in Ferguson, Missouri, tempers flared. Local demonstrations, like those across the country, were dominated by black Americans, who believe the justice system does not protect African-Americans from police brutality.

But anger about the Ferguson case was not one-sided. Liberal-minded Americans of all races were largely outraged by the shooting death of an unarmed black man by a bullying white racist policeman. White conservatives saw things differently: a thuggish black man who had just robbed a convenience store assaulted a policeman who was then forced to defend himself. Witnesses disagreed about what they saw, some bolstering the cases of each side.¹

The lack of video evidence is precisely what inspired President Barak Obama to request $263 million in funding for police body cameras.² If only the Ferguson confrontation had been captured on camera, we could have avoided a lot of bitterness, anger and trouble.

Nice theory, but it didn't last a week. On December 3rd, a Staten Island grand jury refused to indict a white police officer caught choking to death an unarmed black man on camera.³ The death of Eric Garner had been ruled a homicide by the medical examiner, and the entire incident captured on video by an eye witness with a cell phone. Despite overwhelming evidence of a wrongful killing, a mostly white⁴ grand jury voted not to indict the white policeman.

The protests that erupted across the country were bigger than anything that had come from the Ferguson case. Eric Garner showed people that evidence doesn't matter. A cop can get caught killing a man on video and get away with it with only the help of a friendly prosecutor and a racist jury.

The failure to indict in each case is particularly telling because grand juries are nothing more than a tool of prosecutors that almost always indict cases brought before them. During a one month stint on a criminal grand jury in Washington, DC, I was shocked to see every single case get indicted no matter how flimsy the evidence. If a juror questioned the evidence or expressed skepticism, the prosecutor would firmly remind the jurors that such questions were supposed to be left for trial. All the grand jury is supposed to do determine only if the prosecutor has the bare minimum evidence needed to present at trial. On a national basis, over 99 percent of cases brought before grand juries lead to indictments.

By this standard, both grand juries should have indicted the cops. The fact that this did not happen in two high profile cases means that the prosecutors didn't want it to happen. Criminal prosecutors work closely with the police day in and day out. The act of throwing a case before a grand jury is nothing but legal theater by a prosecutor doing a favor for his friends in the police department.

In the Eric Garner case, District Attorney Daniel Donovan asked the predominantly white jurors to consider only the most serious charges of manslaughter and criminally negligent homicide, but not lesser charges like reckless endangerment ⁵ that would make it harder to refuse an indictment.

No matter how outrageous the outcome of grand jury case against Eric Garner, it would be wrong to conclude that cameras don't matter. Yes, the prosecutor threw the case despite damning video evidence. But the whole country saw it, and nobody can deny the facts. The sometimes violent protests that have since erupted have galvanized public attention. This would never have happened if the incident had not been captured on video.

For this reason, the trend to equip police with miniature cameras is welcome and long overdue. It must be combined with laws that require these video recordings to be turned over to the public as well as to those involved in any arrest or altercation. Police video must not be used only in cops' defense, or conveniently lost when they show something embarrassing.

Just as importantly, the grand jury system must be reformed. Prosecutors must be stripped of arbitrary power to throw indictments for their powerful friends and to use hearings as interrogation chambers to pursue dubious government interests.

Most importantly of all, cops and prosecutors must stand up for what is right even if it is at the expense of their colleagues. Most policemen are not the violent and racist bullies depicted in these cases. But good cops — good black cops included— will almost never speak out against their abusive and racist coworkers. Justice can never be colorblind in America so long as authorities refuse to police their own.

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Notes:

1. Washington Post, Ferguson Police Officer Won't be Charged in Fatal Shooting, November 25, 2014

2. NBC News, Obama Requests $263 Million for Police Body Cameras, Training, December 1, 2014

3. USA Today, No charges in NYC Chokehold Death; Federal Inquiry Launched, December 3, 2014

4. NBC 4 New York, NYC Grand Jury Expected to Vote Wednesday in Eric Garner Case: Sources, December 4, 2014

5. Ibid, Staten Island DA Didn't Ask Garner Grand Jury to Consider Reckless Endangerment Charge: Source, December 5, 2014