NYC: “Let’s Go to the Video Tape!”

Dear Virtual Editor,

eric-garner-protestsI heart NY.  That was not always true.  Like many southerners, I have  sometimes been offended by arrogant northern bias, expressed by people who appeared surprised to find that we had indoor plumbing.  I especially did not heart people from New York City.  But now I do.  At least I heart every New Yorker who blocked traffic into Manhattan to protest the police killing of Eric Garner.

I am a rural person.  I absolutely despise sitting in beep & creep traffic.  I have cursed my way around the beltways of Washington DC more times than I can recall.  Being stuck in traffic is a miserable experience. So what a beautiful sight it was to see thousands of people inconvenienced that way as they headed into the city.  The sound of horns blaring was sweet music.  More people need to be inconvenienced until everyone begins to address the whitewash of macho cops killing unarmed black males.

What made it even sweeter was that many of those stuck in their cars were on their way to the Christmas tree lighting at Rockefeller Center.  You know, Christmas.  That great celebration of the Prince of Peace, respect, and love for everyone.  From reviews of the event, however, it does appear that Mariah Carey may have mistaken the holiday for a latter one in the spring.  She laid a giant egg.  One observer said that all she should want for Christmas is a voice.

I could not wait to turn on my TV the next day and hear how this killing would be justified. Long before the Ferguson Farce decision, I had anticipated and written about the “He went for my gun” story, but I didn’t see how that one or even “I thought he was reaching for a weapon” could work in this case.  However, after more that 20 years of teaching the law of Criminal Procedure I had learned from Ferguson that I really don’t know anything about how grand juries are supposed to work after all, so I figured someone might be able to come up with some sort of explanation. Sure enough, someone did.

My favorite defense of the Staten Island grand jury came the next day from a police expert.  His enlightened comments let me in on the fact that the Staten Island criminal justice system has adopted the instant replay rules of the National Football League in specific types of cases. I had not known that. Given the pathetic performance of the Jets and Giants, I was mildly surprised to learn that anyone in NY pays attention to the NFL, but let me explain.

eric-garner-police-brutality-ramsey-ortaIn football, only certain plays are reviewed by video to determine if the official call on the field was correct; e.g., fumble, no fumble; inbounds, out of bounds, etc.  When this happens, the game stops and the play is agonizingly scrutinized from every conceivable angle by multiple video cameras positioned everywhere in the stadium, with the possible exception of the restrooms.  The rule is that the call on the field can only be reversed if all those cameras provide indisputable video evidence that it was wrong.

In the Eric Garner case, police officer Daniel Pantaleo made the official call on the field–no crime.  The TV police expert correctly pointed out that there was only one camera angle in the video of the killing.  He said (with a straight face) that had there been four or five camera angles the grand jury result might have been different.  I should point out that NFL replay rules do not deal with how to factor in a player gasping “I can’t breathe” 11 times.  It turns out, however, that this fact is irrelevant anyway. The union rep reminded everyone that, “If you can speak, you can breathe”. Hard to argue with that.

So, there was video evidence of Pantaleo’s crime but now we all know that it was not “indisputable”. Most of us in the legal profession think selectively adopting NFL rules produces grand jury rules that are ass-backwards, but what do we know?  If you want to understand the U.S. criminal justice system, don’t listen to lawyers. Watch more football.

There is one further detail about the inconvenience of all those people stuck in traffic on their way to Rockefeller Center that would have made my joy complete.  That would be to have learned that the Staten Island prosecutor and grand jurors were also trapped in the blockade and the pollution from all those idling engines caused them to involuntarily join the protesters in a chorus of  “I can’t breathe”.

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