Littwin: America’s ham sandwich justice system |

Littwin: America’s ham sandwich justice system

Mike Littwin
Fair and Unbalanced

Anyone surprised by the Staten Island grand jury’s decision not to indict the cop in the death of Eric Garner hasn’t been paying attention.

Of course the grand jury didn’t indict him.

I’m amused — not in a ha-ha way but amused nonetheless — by those commentators (see: Krauthammer, Charles) who call themselves horrified by the Garner decision but insist there is no relationship between white-cop-black-victim Staten Island, New York, and white-cop-black-victim Ferguson, Missouri.

Let’s get this straight. They can’t breathe in Ferguson, either.

The demonstrations following the grand jury decision on Darren Wilson were not simply about the death of Michael Brown. They were about the history that led to the death of Brown. They were about life in Brown’s Ferguson neighborhood, where cops and residents interact in ways possibly different from those in your neighborhood. When politicians talk about a “lack of trust” between the community and police, you should know exactly what they mean.

No one can deny the history, but somehow there are people under the impression that history simply stopped in 1965 or, if not then, when Barack Obama was elected president.

It happened in Staten Island just as it happened in Dallas just as it happened in Ferguson. They can’t breathe all across the country.

The Garner case had the cellphone video to tell the story. Garner was accused by the cops of selling loose cigarettes, presumably dodging the New York City tobacco tax. It was a sidewalk confrontation that shouldn’t have required an arrest. But if it did, it certainly didn’t require a gaggle of cops, even if Garner was a huge man. If you watch the video, you have no idea why the cops gang-rushed him. Or why, if they had to arrest him, they didn’t try to talk him down first.

The video makes it clear what the Staten Island grand jury missed — that, as the autopsy noted, the chokehold is what killed the obese, asthmatic Garner. It’s the lack of video in Ferguson that now, especially now, has to make you wonder what those jurors missed.

Garner’s last words, as Amy Davidson points out in the New Yorker, weren’t simply “I can’t breathe.” They were “I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe.” And still the grand jury brought no indictment.

Officer Daniel Pantaleo told the jurors he meant Garner no harm, and that when he heard Garner say he couldn’t breathe, he tried to back off from the hold and assumed that the EMT people would revive him.

Apparently, the jurors believed Pantaleo, even though the video evidence said they shouldn’t, even though the video showed an incredible lack of urgency from the police as Garner lay unconscious on the Staten Island sidewalk. The question for the jurors is a simple one: Why? That’s at the heart of the story here. What we know is that failing to indict a cop is routine business. As I wrote in my last column, Dallas grand juries heard 81 cop shooting cases between 2008 and 2012, and returned only one indictment.

It happened in Staten Island just as it happened in Dallas just as it happened in Ferguson, where Wilson told the grand jury that he feared for his life, even though he had the gun and Brown didn’t, and even though he had the rest of the cop’s weaponry and Brown didn’t.

The story doesn’t begin or end with the police. We have a Denver cop now in a hospital who, in an awful irony, was struck by a car while he was among the officers escorting a group of high school students protesting the Brown decision. We don’t know what happened in Ferguson. The eyewitness evidence, as in most cases, is contradictory. The most essential points are in doubt.

Was Brown surrendering or was he charging Wilson? Was Wilson afraid or might he have been simply angry that Brown had hit him and gone for his gun? What did Wilson really see when he told the jury that Brown looked like a “demon”? What did the grand jury see when Wilson said Brown looked like a “demon”?

How does race fit into that — or does it? If you even pose the question — as Obama did in the Trayvon Martin case — some will accuse you of being the racist.

New York Times columnist Nicholas Kristof wrote a post-Ferguson series on race called “When Whites Just Don’t Get It.” He followed up on the “racism-without-racists” concept coined by Duke University sociologist Eduardo Bonilla-Silva, who notes that overt racism has mostly gone away in America but that a less obvious race-consciousness remains in its place. Kristof cited a remarkable study showing that black NBA refs call more fouls on white players while white NBA refs call more fouls on black players. We can only wonder how that translates into the real world.

We wonder differently, of course. Polls show a sharp division between black and white opinion on Wilson and Michael. And if there were truly broad agreement on Garner’s death, how do you explain what happened in the jury room?

Michael Steele, an African-American and former chairman of the Republican National Committee, explained it this way in an appearance on MSNBC: “They tell us, at least, a prosecutor can indict a ham sandwich. Well, clearly a black man’s life is not worth a ham sandwich when you put these stories together.”

Mike Littwin runs Sundays in The Aspen Times. A former columnist for the Rocky Mountain News and Denver Post, he currently writes for