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Garner's Legacy Can Only Be Grand Jury and Prosecutorial Reform

Juan Cartagena

”I can't breathe.“

Eric Garner's death cannot be in vain. More so than even the Ferguson Grand Jury verdict, the videotaped killing of Mr. Garner must spur wholescale reform in addressing the use of police abuse and excessive force in our broken criminal justice system.

But it all starts with the office of the prosecutor.

The role of the prosecutor in America is a powerful one perhaps unequaled in both power and envy. They execute their duties with almost unbridled discretion and their decisions to charge or not are exercised with virtually no immediate accountability save the ballot box.

Since the days of Robert Kennedy as U.S. Attorney General, it appears all elected officials run campaigns as if they were running for the DA's office to paraphrase Jonathan Simon. Tough on crime wins votes, smart on crime does not.

Mandatory sentencing has only enhanced the power of prosecutors. So did the country's well-orchestrated manipulation of the fear of crime as in the "super predator" imagery of juveniles and the racialization of crime in mainstream media. Finally, the shift away from representing the interests of the public at large towards representing the victims of crime first and foremost also enhances the public perception of the powerful prosecutor.

And yet all of those values that favor the victims disappear when local prosecutors are called upon to prosecute the crimes of members of their own teams -- the police force which supplies them with cooperation and mission alignment in each and every case they prosecute. This apparent conflict of interest is the biggest lesson we can draw from the recent tragic deaths of unarmed black men in Ferguson and in Staten Island.

In the name of Eric Garner, at a minimum we must pursue the following:

Create an office of a Special Prosecutor with exclusive jurisdiction in police abuse cases. The District Attorneys in Staten Island and Ferguson both appeared to have conducted full trials instead of probable cause hearings. They worked in the secrecy of the Grand Jury that they control with no judicial supervision in large part because they were prosecuting the very police force that they work with every day.

Special prosecutors are nothing new in America. Indeed, the administrations of Presidents Nixon, Reagan, Bush and Clinton were seriously sidetracked by, and in fear of, special prosecutors. And yet we have not seen a proliferation of the use of this executive power consistently in police abuse cases. Governor Mario Cuomo saw fit to appoint a special prosecutor to investigate crimes in the Howard Beach, Queens racially biased attack against black men by white residents. His son, Governor Andrew Cuomo failed to heed a similar call by 14 Assembly members in the killing of Eric Garner.

This must stop. And relying on the expertise of federal Department of Justice proceedings is not enough.

Destroy the veil of secrecy by avoiding the Grand Jury altogether and have preliminary hearings in open court to determine indictments in police abuse cases. The defense of justifiable homicide is front and center in every use of force case by the police. It will be part of any presentation for an indictment against a police officer in these cases. But America is at a crisis point in these matters. At stake is the legitimacy of the court system and the rule of law. The first step in restoring trust is transparency. Open court hearings on probable cause will be an important step towards that end.

Criminalize the use of chokeholds. In Los Angeles Adolph Lyons survived a choke hold arrest by the Los Angeles Police then brought a civil suit that was eventually dismissed by the courts. As Michelle Alexander noted, by the time his suit reached the highest court 16 people had died by police chokeholds—12 of them black men. In New York City, Anthony Baez died from a chokehold by the police after an errant football struck a patrol car in the Bronx. But the NYPD is not heeding the call even after First Deputy John Timoney warned them in 1995 to "stay away from the neck."

Deescalate, that is, retrain police officers in de-escalation procedures in encounters over minor infractions. Anyone watching the video of Mr. Garner's death can clearly see that it was Officer Daniel Pantaleo that was the aggressor, not Mr. Garner. TheNew York Times editorial board called it "vicious policing" for a reason.

Eventually, six officers were involved in handcuffing Mr. Garner. Why weren't other alternatives pursued? De-escalation is also the response to the broken Broken Windows strategy championed by the NYPD. Mr. Garner was not stopped for selling untaxed cigarettes in Staten Island, instead he had just broken up a fight. But even if Officer Pantaleo thought Garner was selling loosies it could never justify the chokehold he used. Mr. Garner posed no threat to himself or anyone else at the time. All six officers on the scene needed to reconsider their options.

Weed out the worst officers immediately. Mayor de Blasio was eloquent and effective in setting the tone for the response to the verdict. He also repeated Commissioner Bratton's vow to eliminate members of the force who do not belong there. Officer Pantaleo is clearly one of them—but so are the others who stood by while Mr. Garner lay on the sidewalk. Internal Affairs needs to fast track their investigation.

December 3rd was also the birthday of the late civil rights activist Richie Perez known throughout New York City for his activism on police brutality and throughout the Puerto Rican diaspora for his consciousness-raising. He would have been front and center in yesterday's response as he was when Anthony Baez was killed in a chokehold years ago. He would also have repeated to the four winds what Mr. Garner said as the police approached him in July.

”This stops today.“

Juan Cartagena is the President and General Counsel of LatinoJustice PRLDEF. This is a cross-post of his original blog post at the Huffington Post.