by Matt Taibbi
Wilson stopped Brown and Johnson by positioning his police SUV in front of Brown in the middle of Ferguson’s Canfield Drive. Something happened between the two men at that moment. Wilson testified that the unarmed Brown reached inside the police cruiser and attempted to grab the officer’s gun. Other eyewitnesses say Brown never reached inside Wilson’s car at all, while some said he punched Wilson.
Whatever happened in that quick altercation, Wilson responded by firing two shots at Brown from the front seat of his car. He hit him on the thumb with one shot and missed him with the other. Brown took off and ran east about 160 feet. Wilson pursued on foot.
Brown then turned around.
Some witnesses claimed the unarmed Brown had his hands up in surrender at this point. Others say he charged Wilson.
Wilson insisted he was attacked and spoke of Brown making a “grunting, like aggravated sound,” one of many descriptions he would use that made Brown sound like an animal.
Wilson fired a total of twelve times at Brown, twice from his car and ten times from the street, hitting him on the top of the head, the eye, the chin, the neck, the thumb, his right breast, and three places on his arm.
The Ferguson case, too, followed a script, particularly in the media, where the victim was quickly villainized. Black brutality victims are almost always described as beings of superhuman strength, next to whom police are frail mortals. Dating back to the days of Emmett Till in 1955 and before, even children are inevitably described as “big for their age.”
Brown was described as “no angel” in the press and caricatured as a physically imposing monster who had suddenly and inexplicably attacked an armed policeman, who had no choice but to shoot.
Wilson described Brown as a “demon” and said he felt like “a five-year-old holding on to Hulk Hogan.”
The most crucial detail, however, was that Brown’s dead body had remained facedown on the street, unattended, blood pouring from the head, for four long hours, until it was removed.
This was a grotesque continuation of the scene in which a dying Eric Garner had been left unattended in the dirt and grime of Bay Street for eight long minutes.
Regardless of what preceded the shooting, the picture of Brown’s body encapsulated in one unshakable image the dichotomy in attitudes toward black and white life.
It was hardly a surprise that the Ferguson case reignited the nascent Black Lives Matter movement. This had begun two years before with the shooting death of unarmed seventeen-year-old Trayvon Martin at the hands of George Zimmerman, a neighborhood watchman.
Like the competing interpretations of the events in Ferguson, the very term “Black Lives Matter” was destined, absurdly in many respects, to become the locus of a furious nationwide controversy.
Black Americans may have hoped that the name would simply express the degree to which they felt a gap in basic respect, empathy, and rights.
White America instead mostly took it as a provocation. As in, What, white lives don’t matter? All lives don’t matter?
The relatively simple ask from black Americans was that white Americans take a moment to recognize what it feels like, say, to be told your son has been killed, but not told why or how, as happened with Trayvon Martin, or to watch a pregnant woman put in a chokehold over a backyard barbecue, as happened to twenty-seven-year-old Rosan Miller in New York nine days after Garner’s death. They asked white people to consider what it felt like to have your son’s bleeding corpse left in the street for four long hours. But the request implicit in the name “Black Lives Matter” quickly flipped around into an absurd overreaction.
A growing population of Middle American conservatives (and even a sizable chunk of privately grumbling blue-state liberals) was getting good and ready to be open about how tired they were of being accused of racial insensitivity.
After Brown’s death, tensions exploded onto the streets of Ferguson, where tens of thousands of people rallied for day-and-night protests. An increasingly defensive white America watched these protests with mixed feelings.
School days were canceled, the National Guard was called in, curfews were declared, and eventually a state of emergency was instituted as wide-scale racial disturbances of a type not seen since Los Angeles in the early nineties put the entire country on alert. There was a clear fear among Americans that the next time something like this happened, the black community might not just respond with protests but outright insurrection.
This historic series of protests, which cable TV covered round the clock for weeks like a live combat story, stoking fear and tension across the country, provided the background for Dan Donovan’s looming decision about Daniel Pantaleo.
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Until the Garner case came along, Dan Donovan had a rep for being a straight shooter. Heading into the Garner case, in fact, he was probably best known on the island for his political backbone.
In 2001, Donovan was still working as chief of staff for Staten Island borough president and local political mullah Guy Molinari, but Molinari was, by then, ready to give up his fiefdom. Through his powerful endorsement, Molinari essentially handed the position over to his successor, one James Molinaro (who confusingly was not related to Molinari).
Like Donovan, Molinaro had worked in Molinari’s office for years, serving as his deputy borough president. And when Molinaro took over the president’s office, he at first made Donovan his deputy, until Donovan left to become the district attorney in 2003.
Four years later, Molinaro’s grandson, seventeen-year-old Steven Molinaro, got in trouble. He was busted for assault, pleaded out, and was granted conditional probation in lieu of a five-year sentence. Later, he violated his probation by driving by the home of one of his assault victims, a fourteen-year-old paperboy, and glaring at him.
This nasty case landed on Donovan’s desk.
Donovan was in a very awkward spot. The expedient thing to do would be to keep the case and somehow make it go away to the satisfaction of the Molinaro family.
The alternative would be to recuse himself and hand the case over to an independent prosecutor. Donovan here could keep his hands clean, but then the grandson of a longtime political ally would be dropped in the proverbial jackpot, exposed to serious consequences.
Donovan recused himself.
James Molinaro was furious and exploded in public. He took out a full-page ad in the Staten Island Advance ripping Donovan for his “senseless vendetta” against the Molinaro family, adding in a subheadline: “THIS INJUSTICE COULD HAPPEN TO YOU OR YOUR FAMILY.”
Donovan’s decision was a portentous one. A special prosecutor was brought in from Manhattan, who went all out on young Steven Molinaro and sent him to prison for a five-year sentence.
This was politics at its most real and hard-core. Lawyers all over the island quietly gave Donovan props for standing up to a political boss.
The Molinaro case established a pattern for Donovan. He would earn a reputation for recusing himself from any case with which he had even the remotest personal or political connection.
In just 2013 and 2014, he filed twenty-three different petitions asking for recusal, more than half of all such petitions filed by the five New York City DAs. The cases involved someone whose wedding he’d once been invited to, a pro-Israel charity with which he had an unknown connection, an “acquaintance” who had donated to Donovan’s campaign, and even a karate instructor who had taught the children of two of Donovan’s staffers.
This same Dan Donovan was now faced with a historic decision. Would he ask to recuse himself from the Garner case? After all, if he’d been worried about the appearance of conflict in a case where the only issue was a couple of staffers having kids who took a karate class, wouldn’t he recoil from a case in which he would have to investigate Staten Island law enforcement?
Maybe it was a stretch to say taking the Garner case would mean investigating his own office. But police and prosecutors work together constantly. If he had been willing before to sever a c
ritical political relationship for the sake of the appearance of fairness, wouldn’t he do the same now?
The reality is that prosecutors facing this choice virtually never recuse themselves. One semi-exception was the infamous Howard Beach racial assault case of 1986, which didn’t involve a police assault but a gang of white kids attacking black youths. When Queens prosecutor John Santucci couldn’t get one of the black witnesses to cooperate, he asked Governor Mario Cuomo to bring in a special prosecutor.
But as a rule, local prosecutors never embraced the argument that prosecuting police represented an inherent conflict, although this was becoming more of an issue in legal circles by the time the Garner case rolled around. Instead, prosecutors usually proceeded in one of two ways.
Occasionally, a “progressive” DA might keep the case and try to treat an offense committed by police like it was just another crime. Brooklyn’s Ken Thompson would symbolize this approach that very year, in a case involving a rookie cop who shot a young black man in a project stairwell. Thompson went to his grand jury and got an indictment, infuriating police.
Donovan chose another, more typical path.
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Adding to the pressure was the devastating August 1 report from the city medical examiner’s office on Garner’s death. The report declared Garner’s death a homicide, saying he died of “compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police.”
The city’s police union chief, Pat Lynch, denounced the report as “political” immediately upon its release. Lynch was a red-faced loudmouth with a barrel chest and a swoosh of horse-thick gray hair jutting straight up out of his forehead who looked like a central-casting caricature of a bully cop, like a pre-O.J. Mark Fuhrman, only without the introspection or writing talent. He was eager to insert himself into the case as a mindlessly belligerent advocate for the accused officer.
Lynch tried to use the media to paint Garner as street trash who had caused his own death by resisting arrest. He even went so far as to imply that Garner was killed by EMTs or doctors. Noting that the ME didn’t use the word “asphyxiation,” he said, “What they saw was compression to the neck, which is consistent with the medical treatment that Mr. Garner would have received by EMS.”
Lynch would also be the first local character involved with the case to invoke what was quickly becoming a popular meme in national conservative politics: that brutality cases like the Garner incident or Ferguson were in large part the fault of liberal politicians who had instilled in their followers a disrespect for police officers.
This disrespect in turn led to people resisting arrest, which in turn led to deaths, was how the logic went.
In any case, Donovan waited out the ME’s report, then waited another three very long weeks before making a decision about his involvement in the prosecution. On August 19, 2014, he announced that he wasn’t going to ask for a recusal. He wanted to be the one who tried this case.
“I have determined that it is appropriate to present evidence regarding the circumstances of [Eric Garner’s] death to a Richmond County Grand Jury,” he said.
This was a legalistic take on the old commercial about Las Vegas. A district attorney who had punted more cases than the rest of the city’s top prosecutors combined was now telling the world just the opposite: what happens in Staten Island stays in Staten Island.
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All felony indictments in New York State require that a grand jury meet and vote to indict, a decision called a “true bill.” Because of the sheer quantity of felony-level offenses, that means counties in New York raise grand juries as a matter of course.
These sitting grand juries consider felony cases in factory-style fashion and will sometimes hear four, five, six cases a day.
A former Staten Island prosecutor recalls how a typical presentation would go.
“Maybe you only have three witnesses,” he says. “Somebody gets robbed. Then the person that got robbed comes in and says, ‘This guy robbed me.’ Then the guy that saw the robbery is coming in. The cop that picked him up comes in. And that’s it,” he says. “It’s not complicated. How long is that going to take? A half hour? Forty-five minutes?”
The oft-quoted saying that a New York prosecutor can get a grand jury to “indict a ham sandwich” actually dates back to 1985, when the state’s then chief judge, Sol Wachtler, used the phrase in an interview with Daily News reporting legend Marcia Kramer. Wachtler was complaining about the ease with which prosecutors could get indictments.
Nothing really had changed since then. The process still depended in significant part upon grand juries basically taking the prosecutors’ word for it that their cases were solid. If grand juries were designed to be painstaking, in-depth evidentiary hearings, you wouldn’t be able to get an indictment in forty-five minutes.
But by calling a “special” grand jury, Donovan removed all other burdens from his grand jurors. Instead of hearing a ton of cases, they would hear one. It would take a while. They would hear lots and lots of witnesses.
Which sounded great. Until you thought about it.
After all, why bother? If the all-powerful DA in New York can walk into a sitting grand jury and get an indictment based on a couple of witnesses and a pretty please, why complicate things?
If you think a crime was committed (and by taking the case to a grand jury, Donovan was formally signaling that he believed one had taken place), why not just walk into any normal grand jury with Ramsey Orta’s video, call a few witnesses, and walk out with an indictment an hour or two later?
Donovan made contradictory moves. On the one hand, by not recusing himself, he signaled that he believed he could be objective about the case, that it was no different to him from any other case.
On the other hand, by calling a special grand jury, he was saying that there was, in fact, something different about the case, that this was not a normal crime.
He began to call witnesses.
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Subpoenas dropped all over Staten Island, instantly igniting sidewalk controversies. By early September, Bay Street was divided on the wisdom of testifying against cops. A lot of not entirely legal things go on in and around Tompkinsville Park. Most everyone has a hustle of some kind. Drugs are sold and there’s also more small-potatoes stuff, like bootleg smokes or fencing. And everyone has a past. It’s a hard thing to contemplate trusting the authorities to put you under oath and not explore these matters.
Some people who’d been subpoenaed for the Garner trial were busted for minor offenses during this period. They began to gossip with their lawyers, telling them the word on the streets was that some people were now afraid to testify because it might mean trouble with their open cases.
Having heard some of this chatter, Christopher Pisciotta, the head of the Staten Island Legal Aid office, reached out to Donovan’s office. His Legal Aid office had not only represented Eric Garner (most recently via attorney Joe Doyle) but was also located just a few blocks from the park. The lawyers there were familiar with a lot of the people being subpoenaed, and they knew many of them were nervous about testifying.
Pisciotta thought he would help Donovan out on this score. “Our idea was, if a witness was scared to come forward, we would represent them,” Pisciotta remembers. “We would help work with the DA to make sure people weren’t worried about anything but testifying.”
Legal Aid also had had investigators on the scene and had information coming in all the time about who was where during the time of Garner’s killing. Pisciotta wanted to share all of this stuff with Donovan.
He never heard back from the DA on any of it.
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James Knight, the last person apart from police to speak to Garner, received a subpoena. He struggled mightily over whether or not to appear. Even though he was clean then, he had a natural trepidation about testifying against the police.
“It was a hard decision for me to do that, because I don’t want to be tar
geted out here,” he says. “But I talked to my girl and she told me do the right thing, do what you think is best. And I did.”
James took a few days, then reluctantly decided to go in. At first he was heartened by the process. The investigators from the DA’s office seemed to be genuinely interested in what kind of witness he would be, and James worked hard to convince them that he’d be a good one.
“I told them I’d been on drugs thirty-three years, but I’d been clean for seven,” he says. He talked also about his work at the shelter. He remembers seeing one of the investigators look at James’s last mug shot, then at the healthy, well-dressed, lucid, confident man he was now. He thought he saw genuine relief in the prosecutor’s eyes.
“They showed me a picture of me when I last got arrested and they really looked at the difference,” he says. “I thought these guys were really genuine.”
But then on the allotted date, he went to the dull gray glass-and-steel court building just up the hill from Tompkinsville Park, and found the questioning to be far from what he expected. He remembers being shown a picture of the scene of the crime, a picture that among other things showed a piece of cardboard he and others sometimes used to sit on on the sidewalk.
“And they were like, ‘What’s that?’
“And I said, ‘Cardboard.’ And they said, ‘What’s that for?’ ”
James looked around the courtroom, which was mostly full of white jurors, and began to get a funny feeling. Why did anyone care about cardboard?
“Well,” he said, “we sit on it.”
“Why?”
He frowned. “If it’s cold, or if you want to keep your clothes clean.”
“I see.”
James says in earlier interviews he had been asked about what he’d seen, had talked about the chokehold and other things. But once the lights went on for real, he got none of that. “Inside the grand jury room, they didn’t ask any of those questions,” he said.
They peppered him with more strange questions, and soon after that he was dismissed. He went home confused. “The more I thought about it, the more irrelevant the questions seemed,” he said.