Two Americas: Discussing Michael Brown and Eric Garner

Politics
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DENVER -- As nationwide protests continue over grand jury decisions not to indict white police officers whose force led to the deaths of two black men, Michael Brown and Eric Garner, a diverse panel of local experts agreed that the justice system is in need of reform because so many people, especially in communities of color, are losing confidence in its fairness.

"The perception becomes the reality," said Nancy Leong, a professor of constitutional law at the University of Denver's Sturm College of Law. "One of the reasons it's so important to have a justice system that's fair is that people have to have confidence in it."

Grand juries are asked only to decide whether there is probable cause to proceed with a case to trial -- a very low bar. But in cases involving police officers and the use of deadly force, prosecutors very rarely push grand juries to indict, as was the case in Ferguson, Missouri and Staten Island, New York.

The two consecutive high-profile non-indictments have sparked two weeks of protest from minority communities and those questioning whether America's promise of liberty and justice truly applies to all.

"There's a visceral response from the black community," said Terrance Carroll, a former state lawmaker from Denver who became Colorado's first African American speaker of the House in 2009.

"One, that we're still talking about these issues some 45-50 years after the inception of the civil rights movement; and I would say there's an even more palpable anger over the fact that there's a large number of American citizens who don't understand or don't care to understand the issues that people of color are fighting with regard to black lives, brown lives, young men and women who live in poor communities and their interactions with the police department."

Leong suggested that more independent prosecutors be appointed in those cases in order to take the pressure of local prosecutors who are elected officials and working closely with their police departments.

Dan Montgomery, a retired police chief who is now an expert on the use of force by law enforcement, agreed with that idea, noting that grand juries are often conducted in secret with the testimony and evidence remaining sealed (although that's not the case in Ferguson).

"The public needs more information because they weren't there as an eyewitness and these grand juries are conducted in secret," Montgomery said.

In the Eric Garner case, video showing Officer Daniel Pantaleo using a chokehold to subdue Garner, who remarked 11 times "I can't breathe," makes it easier for the public -- if not a grand jury -- to conclude that the officer's force was excessive, Montgomery said.

"It looks like the tactic that was employed here was an air choke, where the pressure is exerted over the trachea, not a carotid choke, a blood choke," Montgomery said. "In almost all police departments, the front choke, the air choke is prohibited. It's deadly force.

"You watch the video, it's troubling. I've talked to many fellow officers who agree."

Montgomery speculated that Pantaleo still may face federal charges, comparing the case to the 1991 Rodney King beating by four Los Angeles police officers that was also videotaped and resulted in two officers being found guilty in federal court after being exonerated at the local level.

In Ferguson, the 4,700 pages of grand jury testimony, which were publicly released, don't make it quite as clear whether former Officer Darren Wilson's decision to fire 12 shots at Michael Brown was justified, leaving the case as more of a racial Rorshach test for a divided country.

But Wilson's own testimony, according to Leong, revealed a deep fear of Brown; and while his story wasn't contradicted by physical evidence, many found it hard to believe.

"The way that Darren Wilson was allowed to testify to the grand jury free-form was very different from the way other witnesses, witnesses that were favorable to Mike Brown, were cross-examined more aggressively," Leong said.

"There's a lot of sociological research about how white people react to black men with more fear than any other race. Some of the language Darren Wilson used in his testimony, the way that he described Michael Brown as a demon, he talked about how he was bulking himself up as though to run through bullets; he talked about how he felt like a baby compared to Michael Brown, he felt like Hulk Hogan because he was so big.

"I think normally these are things a prosecutor would have cross-examined him on, and that really didn't happen. These words do tap into that narrative of white fear of black violence."

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