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‘Institutional Bias’

...Making a case against police killings
Published: 
Sunday, December 7, 2014

The dust had hardly settled after the protests in Ferguson, St Louis, over the failure of a Grand Jury to indict the police officer who shot Michael Brown, when the news came that a Grand Jury ain New York had similarly failed to recommend charges against the police officer who suffocated Eric Garner to death in a chokehold. Eric Garner was as unarmed as he was black. He was accosted on a sidewalk by a posse of police who accused him of selling cigarettes illegally.

Unlike in Michael Brown’s case, the Grand Jury did not have the burden of sorting through contradictory eyewitness evidence. The events which led to Garner’s death were all caught on tape. He was not resisting arrest. He did not try to flee. But he was defiant. He was incensed at what he perceived to be police harassment. He was protesting his innocence. 

The video shows a sudden rush by five or six police officers. One immediately put him in a chokehold, while the others wrestled him to the ground, face down. Garner was a big man. Overweight. Officers were on his back. This, in combination with the chokehold, put pressure on his lungs. He called out repeatedly that he could not breathe. He got no relief and died from asphyxiation. The chokehold the officer administered is outlawed in the New York police force. 

The NYPD’s guidelines on arrests urge officers to get a prisoner off his stomach as soon as he is handcuffed. This is because a person is unable to breathe lying face down when pressure is applied to his back. The diaphragm becomes constricted and the prisoner is unable to inhale and exhale. Obese people are especially susceptible to suffocation in these circumstances.

Despite the availability of indisputable evidence and a clear breach of departmental guidelines, the Grand Jury was not persuaded to recommend charges. It is important here to speak about the task of a Grand Jury in the United States. It is not required to find guilt beyond a reasonable doubt. It need only find probable cause for an indictment. Prosecutors notoriously exercise almost absolute control over the outcome. 

They present whatever evidence they choose. The potential defendant is not represented. More than 99 per cent of cases put before the Grand Jury result in the preferment of charges. By stark contrast, the Grand Jury has never recommended the indictment of a police officer who has killed in the course of his duty. The Michael Brown and Eric Garner cases are just the last in a string of fatal shootings of unarmed black men by police who have escaped any criminal sanction.

Once again concerns of institutional racism in the police have come to the fore. It is the lack of regard for black lives which lead white officers to so readily employ undue force to subdue perceived perpetrators. Commentators are much slower to make a charge of institutional racism about the Grand Jury system itself. 

But what has emerged is the presence of institutional bias—not necessarily racist bias, but that cannot be altogether excluded—among the prosecutors whose function it is to take cases against police before the Grand Jury. Prosecutors take cases to court which are investigated and prepared by police officers, who in the main serve as their witnesses. Prosecutors must therefore interact with police officers on a regular basis. 

If they do not personally know the officer who is being investigated for a fatal shooting, they know generally of the hazards police face on a daily basis, their acts of heroism and gallantry in the defence of law-abiding citizens, their perceived strengths and weaknesses. They come to see the world through their eyes. They easily sympathise at a personal level. They understand their motivations and fears. 

They would, naturally, see any fatal shooting from the police officer’s perspective. It is therefore probably not surprising that a prosecutor would, even if subconsciously, refrain from pressing a case against a comrade in arms too forcefully before the Grand Jury. The prosecutor in the Michael Brown case did not even push for a charge. He left it to the jury to come to its own conclusions without his assistance.

Calls are now being made for the revamping of the Grand Jury system in the United States. The lesson of the Michael Brown and Eric Garner cases is that local prosecutors are not institutionally equipped to present cases against police officers with sufficient detachment. There are lessons for us in T&T as well. There has been a recent spate of police killings. Families are left distraught. 

There are too many cases of eyewitnesses attesting to summary executions, contradicting the official line that the police were simply returning fire. Here, issues of institutional class, not race, bias complicate the analysis of events. But the common problem is to find the appropriate mechanism to hold the police accountable, one in which the public will have confidence. Obviously, we cannot rely on the police service to investigate their own. 

We have many conscientious and professional police officers, but their history of common experience with their colleagues under investigation cannot be expected to inspire confidence that a thorough and impartial investigation will be carried out. Much hope is placed in the Police Complaints Authority to perform this role. The authority is designed to be independent of the police. 

The director and its members are independently appointed and its investigators are not members of the police, even though they may once have been members of the protective services. It is here that all cases of police killings should be sent for investigation.

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