I Can't Breathe

by Matt Taibbi

  From her seat in the car, Clementine didn’t hear the shot. But she remembers watching an ambulance arrive and circle round the back of the building. Nobody told her anything for a good long while.

  Eventually Trooper Green exited the police station. He walked slowly across the courthouse lawn, past Clementine, and went to his car, never looking over at Carnell’s car. Finally, Clementine sent her cousin DeeDee to ask what was going on.

  “I said to DeeDee, ‘Go down there and ask them what happened to Carnell,’ ” she said. “But just as he was fixing to get out the car, [Green] came back up here.”

  Green had gotten out of his car but remained on the driver’s side of the vehicle, so that the police car remained between him and the Russ family. From a distance, he signaled for cousin Denton.

  “He made for DeeDee to come over,” Clementine recalls. “And he said something to DeeDee, and he had this look on his face. And I knew something was wrong. I don’t know how I knew, but before I got out of the car I was a nervous wreck. And that’s when [Trooper Green] told DeeDee to take the baby.”

  By then, Green and DeeDee had come over to the car. Clementine, knowing and yet not knowing, was shaking and trembling all over. DeeDee took week-old Fashunda from her, and Green finally broke the news.

  “Your husband said a smart word,” is how Green explained Carnell’s death.

  Half a year later, in January 1972, an all-white jury took eight minutes to acquit Charles Lee Ratliff of voluntary manslaughter.

  Clementine remembers sitting in the courtroom in a fog, dizzy at how fast it all happened. “I didn’t know what was happening,” she says now. “It was unreal.”

  —

  After Ratliff’s acquittal, the Russ family filed suit against everyone they could think of for the wrongful death of Carnell Russ.

  An elderly judge named Oren Harris was chosen to hear the Russ lawsuit. Harris had represented southern Arkansas in Congress for nearly a quarter of a century. He had been Clementine’s congressman.

  While serving in that capacity, he’d signed the infamous Southern Manifesto against the Brown v. Board of Education Supreme Court decision forcing the integration of public schools. The document accused integrationists of trying to upset the “good” relations that existed between white and black people in the fifties.

  Three days into the trial, the man who’d signed that document tossed the Star City mayor, the six aldermen, and Officer Draper from the suit. Proceedings were allowed against Green and Ratliff only.

  Ratliff, Clementine remembers, represented himself in court. He was laughing and winking at people in the gallery and generally gave the impression that he wasn’t too concerned about the case.

  “He was very arrogant,” says Clementine now. “He acted like he knew he didn’t have to be worried about nothing.”

  Once again, an all-white jury was seated. The jury took three hours this time instead of eight minutes. They found Ratliff and Green innocent.

  Clementine’s NAACP lawyers, George Howard Jr. and James Meyerson, were frustrated by the results. They decided to look for another way to fight the case.

  Howard and Meyerson, the former black and the latter white, couldn’t have been more different. Howard was a measured, serious, academic presence whose whole life had been about breaking barriers. After serving in segregated units in World War II, he returned home and became the first black student to live on the campus of the University of Arkansas at Fayetteville.

  He was for a time the only black lawyer in Pine Bluff and went on to become the first black person in Arkansas appointed to the federal bench. Many years later, he would be the presiding judge in several of the famed Whitewater corruption cases, including the trial of Susan McDougal.

  Meyerson, meanwhile, was a thin, quirky, unbuttoned character, a courtroom brawler given to soaring rhetorical flourishes. A former Syracuse Law classmate of Joe Biden’s, he played a unique role as a white lawyer within the NAACP, where he served as the assistant general counsel for the whole of the seventies. He was probably best known for helping to negotiate the pardon of Clarence Norris, the son of a slave and the last living member of the Scottsboro Boys, nine young men who’d been falsely accused of rape in 1931.

  His legal partnership with the stately Howard was a bit of a good cop/bad cop routine, with Meyerson playing the role of the unpredictable courtroom presence.

  The two men had been through tough times. In the 1972 desegregation case Alexander v. Warren, about the firing of a black teacher named Travistine Alexander, anti-integration protesters in the Arkansas town of Warren were so vociferous that the National Guard had to be called in to escort Howard and Meyerson to and from the courtroom.

  In the Russ case, Meyerson and Howard decided to focus on a law passed by Congress in 1948, giving the federal government the power to intervene if a person was harmed by a “deprivation of any rights, privileges, or immunities secured or protected by the Constitution.”

  That law, 18 U.S.C. § 242, was a kind of magic bullet, a legal trump card that gave the federal government the right to step in and act if local governments failed to uphold the constitutional rights of any person.

  In the case of Carnell Russ, the fact that Charles Lee Ratliff had been brought to trial at all ostensibly blocked the federal government from pursuing the matter. This was true even though the “trial” had been a fairly obvious fraud. Under current law, any local proceeding, even a sham trial, obviated the need for federal action.

  The policy against “dual prosecutions” was based upon an interpretation of the law elucidated in a memo by then deputy attorney general William Rogers during the last years of the Eisenhower administration. It seemed to Meyerson that the Rogers policy made no sense if the first prosecution was not a real one. The federal government clearly had a tool to make things right in the Russ case, but Rogers was keeping 18 U.S.C. § 242 holstered.

  So Meyerson huddled up with Howard and decided to try something off the wall. They filed suit against Edward Levi, the attorney general of the United States, for failing to conduct an investigation into the possibility that Russ’s rights had been violated under 18 U.S.C. § 242 and/or other laws.

  Essentially, they were suing the federal government for failing to use its power to tame corrupt local city governments.

  On September 3, 1976, an African American judge named Barrington Parker handed down his ruling. It was a blowout for the NAACP. He ruled that the NAACP and the Russ family had standing to sue.

  After this change, the federal government for the first time openly claimed purview over local criminal cases. It asserted its right to step in and reprosecute if state or city governments were too backward or corrupt to do it themselves. Star City, Arkansas, became the birthplace of the modern federal civil rights investigation.

  Characteristically, this enormous intellectual and legal victory in Washington did little for Clementine Russ personally. Though she won the right to see one, there never was a successful civil rights prosecution of anyone in Star City. Meanwhile, her own civil lawsuit dragged on endlessly.

  It was only in April 1979, eight years after her husband’s murder, that a jury finally awarded Clementine Russ $288,000 in damages due her from Charles Lee Ratliff. At the conclusion of the case, one white lawyer in the courtroom approached her with a huge smile on his face.

  “You should be happy,” he said. “No black person in Arkansas has ever gotten that much.”

  Miss Clementine waited for her money to arrive.

  Thirty-five years later, as she sat watching TV in rural Arkansas, a news story caught her attention. A man named Eric Garner had been killed in New York by police. As her family had once done, Garner’s family was now headed to court to demand answers.

  As she watched, Miss Clementine was sitting in the same small home near the railroad tracks she once shared with her husband Carnell. She sat in the living room, not far from where her husband used to leave his work clothes while he slept. Ra
tliff had never paid up, then had disappeared out of state, then apparently had died. So nobody had paid her a dime yet. She was still waiting. Nearly half a century had passed.

  —

  The north side of Staten Island in the winter always seems colder than everywhere else in the city. Tompkinsville Park rests at the base of a hill overlooking New York Harbor, and the wind here rushes up from the water’s edge and bites at the ears and eyes. When Eric Garner worked here he struggled to find any way to stay outside and sheltered from the wind at the same time. He would come home from a day standing in the cold and collapse, his massive body exhausted from the energy-sapping cold.

  Up the street from Tompkinsville Park rests the city court complex. It’s on higher ground and feels even colder here than the park. February 5, 2015, was a particularly frigid day, too, a bitter Thursday at the outset of what would prove to be the third coldest February in the city’s history. Protesters—not many, due to the extreme weather—gathered outside the courtroom that day, carrying signs that read, “End the New Jim Crow!” and “What Are They Hiding?” and “Open the Grand Jury Records!”

  Inside, a heretofore little-known judge named William Garnett entered a small, oppressively lit courtroom packed with press, Eric Garner’s friends and family, and a large and plainly nervous assembly of court police. With a swipe of the gavel, the judge opened the proceedings.

  “Part twenty-two, the Honorable William Garnett presiding,” shouted the clerk.

  “Please be seated,” said Judge Garnett, a pale and narrow-shouldered man with a carefully trimmed sweep of metal-gray hair.

  The tension in the room was palpable. This was the day that arguments would be heard on the matter of the unsealing of the Garner grand jury proceedings.

  Staten Island’s fancy new court complex had not yet been completed. The hearing was held in a shabby little room with worn benches that any of the other four great city boroughs would have been embarrassed to present to the world in a case with so much media. The dozen or so court officers lined the yellowing walls of the little room and glared defiantly throughout, silent symbols of the borough’s inferiority complex.

  Erica was there, and Jewel, and Esaw and Miss Gwen, staring forward at the judge, all of them anxious, but also with an air of preemptive disappointment; they weren’t expecting anything to come of this. Their mood was further soured from the start, as they almost didn’t get seats—the press had gotten in and packed the courtroom early, and the court officers kept telling them the room was full.

  “I had to explain to them that we were the family,” Erica remembers. “It got to the point where voices were raised.”

  Finally, seats were found for them, parked behind the multitude of lawyers arguing on their behalf. Five in particular would speak that day.

  Matthew Brinckerhoff of Emery Celli Brinckerhoff & Abady, arguing for the public advocate’s office, had a dark mop of curly gray hair and a goatee. He was probably best known for winning a $50 million settlement for an astonishing sixty thousand New Yorkers who’d been illegally strip-searched before arraignment on minor violations. In another universe, Eric Garner, who claimed he was strip-searched on the streets of Staten Island, might have been one of his living clients.

  Art Eisenberg, arguing for the NYCLU, was another prominent civil rights attorney in a city full of them. He was tall, with a broad forehead and a wizened, faintly ironical expression. The silver-haired Chris Pisciotta, a quiet man in Coke-bottle glasses, represented Legal Aid. Then there was Alison Schary, representing the New York Post, who as a media rights expert was one of the few lawyers in the room whose expertise rested outside civil rights or criminal justice.

  Dark-haired and quick-witted, Schary within a year would be sucked into another monstrous national controversy, representing Rolling Stone in its infamous face-plant exposé of campus rape at the University of Virginia.

  The last of the five, representing the NAACP, was James Meyerson, the onetime counsel of Clementine Russ.

  Now in his seventies, Meyerson was still doing the same kinds of cases. His co-counsel on the Russ affair, George Howard Jr., had passed away in 2007. Meyerson’s presence testified to the fact that in nearly half a century since the Russ case, very little had changed with the passage of time except the names on the docket.

  So here he was again in another shabby provincial courtroom where the fix was probably in, awaiting the inevitable disingenuous ending that is a consistent feature of these cases: the moment when a judge or a prosecutor sighs and tells the family that the law says there’s nothing they can do.

  Meyerson was no pessimist, however. The thin, bespectacled, silver-haired lawyer had grown over the years into a sentimental and confirmed eccentric, given to elaborate expressions of well-wishing and friendship. He signed his emails, all of them practically, with a remarkable tagline:

  As always, I do hope that, all things considered, you and yours are well. Be strong; keep the faith; keep thinking positively; and keep hope alive. I wish you and yours, now and forever more, much peace, health, happiness, hope, joy, productivity, good will, strength, courage, kindness, good luck, respect, dignity, honor, wisdom, and prosperity—spiritually and in all ways and every way.

  In court, however, this quiet sentimentalist was an unpredictable, extroverted, weirdly confrontational personality. He rubbed people the wrong way—not just legal opponents, but sometimes allies as well.

  He would go his own way in this case, too, alone among the five lawyers arguing for the unsealing of the Garner grand jury records. The others—Legal Aid, the NYCLU, the Post, and the public advocate’s office—planned a semi-coordinated assault based on the scant legal precedent governing the opening of grand jury proceedings.

  They focused in particular on the 1970 case People v. DiNapoli. In this case, New York’s Public Service Commission, a government body charged with overseeing state utilities, sought to gain information from a grand jury that had indicted a group of mobsters for rigging bids for public contracts.

  DiNapoli boiled down to the state wanting to see the grand jury proceedings in order to find out the extent of the bid rigging. That information would tell them whether or not some Con Ed customers were owed a refund on gas and electric bills.

  The DiNapoli case established the standard for granting access to grand jury information. The Public Service Commission had proved a “compelling and particularized need” to break the seal of secrecy. Trying to use DiNapoli to open the Garner grand jury was an absurd fit, like using a tweezer to bust a bank vault. The Garner case was about broad, biblical themes of justice and fairness. DiNapoli meanwhile was a narrowly material case about remuneration. To convince a Staten Island judge that anyone in the Garner affair had anything like the “particularized” interest the Public Service Commission had in DiNapoli was almost a practical impossibility.

  The deck was stacked against the petitioners, but four of the five planned to give it the best possible shot anyway. Lawyers like Pisciotta, Eisenberg, Schary, Brinckerhoff, and Jen Levy (who worked with Brinckerhoff on the public advocate’s argument) pored through the books and carefully prepared Hail Mary arguments they hoped would sway Judge Garnett.

  Privately, they were hopeful, but going into court that day, some of them were very worried about a potentially serious complication: Meyerson.

  The NAACP lawyer, who seemed in person like a cosmic ambassador from the twelfth chakra of kindness, had planned his own strategy, and everyone was worried about what he might say.

  —

  Judge Garnett did not look like a happy man behind the bench. He had been a prosecutor in Staten Island in the eighties but had spent most of his career as a judge in Brooklyn. Then, just months after returning to Staten Island to serve as a judge, he had this terrible case dropped in his lap thanks to a sleazy-looking maneuver by his predecessor.

  The original judge in the Garner case, Stephen Rooney, had recused himself on December 17, citing the need to avoid the “
potential appearance of impropriety.” Apparently Rooney’s wife, Kathryn Rooney, was the board chair of the hospital where Garner had been taken after being choked.

  It took Rooney an awfully long time to remember this conflict. The judge had sworn in the Garner grand jury months before, and on December 4 had done Dan Donovan a solid, granting his motion to disclose limited information to the public. After that, he’d tried to keep the entire effort by the five petitioners to unseal the grand jury proceedings secret.

  Only when that effort failed, and a higher appellate court guaranteed that some judge in Staten Island would have to face the wrath of the community in a public hearing, did Rooney suddenly have an attack of conscience about his wife’s conflict.

  By then it was nearly three months into his relationship with the case.

  Rooney’s maneuver left Garnett to face the public anger over the grand jury’s decision, and the latter didn’t seem particularly pleased about it. In his opening remarks, the sleepy-looking, pink-faced judge with a tightly combed helmet of dark-gray hair told the assembled they would limit the discussion to section 190.25 (4) of the state’s Criminal Procedure Law, governing the release of grand jury records.

  “I just want everyone in the courtroom [to know that] Grand Jury secrecy is embodied in the Constitution of the State of New York,” he said. “Amendments to our Constitution are affected by a vote of State legislature, and then are submitted to the voters at the next general election.”

  Some of the petitioner attorneys shot unhappy glances at one another. It seemed like the judge was letting them all know that if they didn’t like the law, they could always change it at the ballot box. In the meantime, he seemed to be saying, he might have to interpret the law as it was, and they might not like it.

  Brinckerhoff, representing the public advocate’s office, went first.

  “Your Honor,” he said, taking a deep breath, “this case presents two unique and compelling circumstances [that] certainly did not exist in the cases that are relied upon by the district attorney in this case.”