Prosecute the Prosecutors: A Way to Justice in Staten Island, Ferguson and Cleveland

Thousands are protesting across the nation to seek justice in the Staten Island, Ferguson and Cleveland cases. Leaders from President Obama to members of Congress to state and local officials are joining an outraged public in calling for conversations about how and why unarmed young Black men and children have been killed by police in recent weeks. Angriness with police actions in African American communities has been simmering for decades.

There is a way to achieve justice and that is to 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, something that was 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 Michael 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. She 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-plus 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.