The Blog

The Tale of Two Tapes

We have come to a very dangerous point in our history. The protests will only intensify. The American public will be paying much closer attention from both sides of the polarization. The problems are complex and multi-layered. The police force is merely acting as the tip-of-the-spear.
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Pictures have far more power than words to trigger massive social change. Iconic photos of a South Vietnamese officer in the act of executing a Viet Cong suspect; a naked young girl fleeing in agony after being napalmed; 500 bodies of dead infants, children, old men and women strewn about in the hamlet of My Lai -- all serving to reverse the momentum of public opinion, beginning the ending of the war. Scenes from the early '60s of non-violent black protesters being fire-hosed and attacked by police dogs; a fire-bombed church on a Sunday in Alabama where four young girls died; non-violent black marchers brutalized on a bridge in Selma; an Alabama governor standing in the doorway of an all-white college, ultimately failing to block a young black man and woman only because of a National Guard escort; the 1964 discovery of the decomposed bodies of three civil rights workers murdered by the Ku Klux Klan -- all creating a groundswell of public support for successful civil rights legislation.

Despite their communicative power, pictures do not always carry the day. Even the horrific 1991 video beating of Rodney King appears to have led to little substantial, lasting change. The heart-breaking videos of the 2012 Sandy Hook massacre, despite the tsunami of public outrage, could not loosen the death-grip of the NRA leadership over corrupt and greedy politicians.

Just as the outcry over Sandy Hook called attention to the broader problem of gun killings on city street corners, we now have the haunting video of a black man being choked to death by police officers shocking us into serious awareness of police violence against black males. We are stunned by a second video of a 12-year-old boy playing with a pellet gun alone in a park being instantly gunned down by police literally two seconds after arriving on the scene.

The American consciousness has now been captured by the confluence of the videotaped police killings of Tamir Rice and Eric Garner in the context of the outrage over the untaped killing of 18-year-old Michael Brown and subsequent failure to indict police officer Darren Wilson. Shamefully, little public attention was paid to the death of Eric Garner in July, weeks before the killing of Michael Brown in August. But the persisting and often violent protests over the killing of Brown, culminating in the grand jury acquittal of Wilson on Nov. 24, heightened our sense of acute attention to the Dec. 3 grand jury dismissal of Officer Daniel Panteleo, on precisely the same day Tamir Rice was buried. Had it not been for the Brown upheaval, I for one am certain I would have barely noticed the Panteleo acquittal, as I had ignored the Garner killing in the first place.

Then I watched the videotapes and everything changed. First, the staggering tragedy of Eric Garner's arrest via the chokehold that killed him. I stared at the screen in disbelief, playing it over and over, hitting pause and rewind at critical points trying to convince myself that I had indeed seen what I thought I had.

Because I was now aware of Tamir Rice's burial earlier that day, I then turned to the shocking video of the seemingly reckless killing of the 12-year-old boy by Cleveland officer Timothy Loehmann. This same man had been fired from the Independence, Ohio police force for extreme mental instability and unfitness to be a police officer, two years before his hiring by the Cleveland Police Department. It appears there had been no background check of the report by Independence Police Chief Jim Polak, who wrote, "I do not believe time, nor training will be able to change or correct these deficiencies."

Many do not understand the function of a grand jury as distinct from a jury trial. In the former, there are typically 23 rotating jurors guided only by the local prosecutor in complete secrecy. The prosecutors carry a staggering conflict of interest in that they depend heavily on the same police forces they are "investigating" to conduct vigorous police work in order for them to prosecute criminals effectively. The grand jury's job is not to decide innocence or guilt, but merely to make the much simpler decision whether there is "probable cause" (a very low bar) to believe there is sufficient evidence to warrant a public jury trial with a presiding judge, jury, and opposing attorneys operating openly under very strict procedural rules. Only a jury trial is equipped to render the much more difficult final verdict of guilt or innocence. Furthermore, statistics demonstrate that grand juries virtually always result in an indictment to go to trial, whereas grand juries involving police killings virtually never indict.

Except in the case of police killings, grand jury indictments, are little more than a rubber stamp, a kind of "just checking" by the prosecutor to prevent the rare occasion of moving too hastily ahead to a trial. At the federal level, for example, in the most recent data from the 2010 Bureau of Justice Statistics, there were 1,600 federal grand jury cases, of which only 11 resulted in acquittal. State figures are comparable.

In stark contrast, a Houston police officer has not been indicted by a grand jury and taken to trial since 2004. Between 2008 and 2012, Dallas grand juries examined 81 police shootings, returning only a single indictment.

There are obvious questions in the Garner killing that screamed out for answers in a jury trial. Was there a chokehold? Was it necessary? Was it applied too aggressively or for too long? How are those terms even defined? Given the decision to arrest, what alternative methods did the police have, if any? Did the police have the procedural option not to arrest, given the very low-level crime of selling "loose cigarettes," of which he was a repeat offender? Is it possible Garner could have been given a hefty ticket each time he was caught?

What constitutes "resisting arrest?" The video shows that Garner was very upset. He did not put out his hands to be cuffed. But nor did he use foul language, name-calling, or aggressive threats or movements of any kind. He addressed the cop as "officer" and used the word please -- as in "please leave me alone" -- several times. As he was going down, his hands were in the air, not punching or counter-attacking in any way.

I am a psychologist, not a criminal attorney, and these are merely the questions of an uninformed citizen. That is precisely the point. It was the responsibility of the grand jury, not to determine guilt or innocence, but to recognize that only the expertise of seasoned professionals in a formal jury trial can allow for these complicated determinations to be made.

We have come to a very dangerous point in our history. The protests will only intensify. The American public will be paying much closer attention from both sides of the polarization. We now have hideous demonization and bigotry raging in both directions. Cops are now routinely perceived as guilty until proven innocent in the eyes of increasing numbers of black, white and brown citizens. Blacks, especially males, in turn are seen by the other side of the divide as similarly guilty until proven innocent, inherently dangerous and up to no good. Rudy Giuliani recently lost his composure on Meet the Press and spewed racist accusations that if black neighborhoods weren't so violent, these problems with white police officers would become unnecessary, and that if we could just get them to stop killing each other, the problems would be solved. True colors.

Lost in the melee is the estimated 95 percent of police officers who never fire a shot in their entire career. Those who kill very often become severe PTSD victims. Despite systemic problems over which they have no control, I would argue that the overwhelming majority are good cops and dedicated professionals, just as the overwhelming majority of black males are certainly not looking to commit crimes. To conclude otherwise is preposterous.

The problems are complex and multi-layered. The police force is merely acting as the tip-of-the-spear, reflecting the entire judicial system, which itself reflects prevailing social tendencies, good and bad. The alarming widening of the weath gap exacerbates impoverished neighborhoods and their attendant problems, as well as depleting police budgets resulting in fewer cops, less education and training, inadequate background checks and much higher levels of stress for the boots on the ground.

In every crisis, there is both danger and opportunity. As a result of the police killings of 12, 18, and 43-year-old unarmed black males, these problem demand immediate, effective, governmental dialogue, accountability, and decisive, visible action.

The judicial process in the killing of Tamir Rice is imminent. We need to get that one right. Cameras are everywhere.

Many thanks to Police Officer Greg Tansey, my remarkable nephew, for his hours of invaluable input.