by Matt Taibbi
“I’d say that’s the moment that hit for me,” Erica remembers. “Just didn’t like him when those officers turned his back twice, turned their back on him twice, and I felt like asking, ‘Who do the police answer to?’ ”
She pauses. “I mean, if they don’t answer to the commissioner, if they don’t answer to the mayor, then who? That to me showed his weakness.”
More and more, Erica began to see that if she wanted to accomplish anything in her father’s case, she would have to do it without relying on political figures. She would have to do it herself.
—
The Patrolmen’s Benevolent Association chief, Pat Lynch, gave a seething press conference that night after the Liu and Ramos funerals. Even by his standards, it was a doozy.
Lynch seemed incapable of empathizing with the victims of police violence and inevitably described such people as having brought their deaths and injuries on themselves.
Even when the victim had done nothing more than open a door of a housing project stairwell, as unarmed black teenager Timothy Stansbury had done in Bed-Stuy in 2004 before being shot, Lynch wouldn’t hear of police being blamed. In that case, he called for then commissioner Ray Kelly’s resignation after Kelly said there “appears to be no justification for the shooting.”
In another case, Lynch defended a cop caught on video shoving a kid off a bicycle by saying the cyclist was an “anarchist.”
In Lynch’s mind, no police officer in history had ever been guilty of anything, and he repeatedly pooh-poohed the widespread anger over Garner’s death as liberal propaganda besmirching the name of good cops.
Now, after the deaths of Liu and Ramos, Lynch was quick to describe the incident as the fault of a cop-hating mayor who coddled violent extremists who only posed as peaceful protesters but finally got what they wanted.
“There’s blood on many hands tonight,” Lynch said. “That blood on the hands starts on the steps of City Hall in the office of the mayor.” He also pointed at “those that incited violence on the street, under the guise of protest.”
Liu was the son of Chinese immigrants and had patriotically joined the force after 9/11. His mother would later tell a story of how he once found a little boy from Queens lost in their neighborhood. “He was hungry, so my son took him to McDonald’s and fed him,” said Xiu Yan Li. “He drove him home, back to Queens.”
Ramos was the father of two and so devout that he was studying to be a pastor. His wife, Maritza, and his two sons would go on to spend the next years, like the Garner family, dreading anniversaries of the murder.
The Liu-Ramos murders essentially ended the nationwide demonstrations. Public opinion, which had tilted decisively in favor of police reform after the Garner grand jury decision, had swung around entirely. The country was now furious about the police deaths, and in yet another ancient pattern that surfaced and would repeat itself over and over again, the distinction between protesters and criminals blurred in the public consciousness.
Protesters of all persuasions found themselves paralyzed by grief and defeat. The Justice Leaguers knew it was over almost immediately, not just for them but for all the protesters in the city, and nationally as well.
“We felt defeated at that moment. We felt a lot of sorrow,” Rameen remembers.
“Everything changed,” Jules recalls.
“Everything,” agrees Carmen.
There were some halfhearted attempts at different actions in the next days, but they petered out. The activists ended up spending Christmas on a toy drive.
—
On the night of the murders, a memo was circulated to many officers, ostensibly from the Patrolmen’s Benevolent Association leadership, most likely from the pen of Pat Lynch. The memo asked officers not to respond to calls alone and then added something very strange:
Absolutely NO enforcement action in the form of arrests and or summonses is to be taken unless absolutely necessary and an individual MUST be placed under arrest.
Whoever wrote this memo either had a keen sense of irony or was completely deaf to the subtleties of language. After having railed for weeks against citizens for protesting, the police were now going to engage in a protest of their own by limiting themselves to “necessary” arrests.
Which raised the question: What exactly was an “unnecessary” arrest or summons? And why had the police been handing them out to begin with?
Capital New York got hold of a recording of Lynch talking to union members at a nonpublic meeting at this time.
“If we won’t get support when we do our jobs, if we’re going to get hurt for doing what’s right, then we’re going to do it the way they want it,” he said, not realizing he was being recorded. He went on:
“Our friends, we’re courteous to them. Our enemies, extreme discretion. The rules are made by them to hurt you. Well, now we’ll use those rules to protect us.”
Lynch clearly seemed intent on making sure police would no longer aggressively engage their “enemies” on the street, instead asking cops now to follow what he called the “stupid rules” as a way of showing the public how necessary it was to defy them.
A month of December that began in furious protests against police brutality ended in an unprecedented police slowdown, what the Post called a “virtual work stoppage.” The numbers were staggering. From December 22 to December 27, police made 66 percent fewer arrests versus the same period the year before, while summonses (including traffic summonses) were down 94 percent.
It was not clear exactly at what or whom the stoppage was aimed: the protesting public who needed to be reminded of the essential nature of police, a president who’d angered many police after Ferguson, or a mayor who had made enemies of the rank and file by palling around with Sharpton (and by talking about how he’d warned his own half-black son, Dante, to be careful around cops).
Whatever the plan was, it didn’t really work, as the public mostly seemed pleased not to be ticketed so much.
The police protest lasted nearly three weeks, until January 13 or so of the new year, when the Daily News pronounced it over.
“So long to the slowdown,” the paper cracked.
Commissioner Bratton said that while he was still “concerned” with the “levels of activity,” which had been down 38 percent in the week of January 5–11, things were now returning to “normal.”
—
The story, however, was not over.
Throughout the month, as protests raged on the streets, another line of opposition was quietly developing in the offices of a number of New York lawyers.
Since Dan Donovan had announced the results of the grand jury and petitioned the court to release information about the case he’d presented, several groups of attorneys, independently of one another, began to ask themselves a question: If Donovan could violate the sacrosanct principle of grand jury secrecy for the sake of “assuring the public,” why should he be the only one?
A judge had let the DA release secret information for the plainly self-serving public relations objective of maintaining confidence in the efficacy of his office. Why didn’t the public have an equal right to know if that confidence was misplaced?
As it happens, five different groups of lawyers, each with different relationships to the Garner case, all had the same thought more or less simultaneously. All five ended up making an effort to try to unseal the Pantaleo grand jury.
The five groups included New York’s Legal Aid office, the office of Public Advocate Letitia James, the New York Post, the NAACP, and the New York Civil Liberties Union (NYCLU).
Their individual reasons varied slightly, but each essentially wanted to get to the bottom of the mystery of what had happened inside Donovan’s grand jury. Many of them suspected that Donovan had thrown the case and believed that the public had a right to know.
Christopher Pisciotta’s Legal Aid office was the first to go to Rooney’s court. Having represented Garner in the past, their office was blindsided by the December 3 decisi
on.
“It was very moribund in the office, and everyone was quiet and depressed,” Pisciotta says. “A lot of our attorneys had contact with Garner, and with the video there was an assumption that we’d get justice.” Disappointed, Pisciotta reached out to Tina Luongo, head of criminal defense for Legal Aid in New York, and they sketched out a motion together.
“You have more than enough in the public eye to support a charge, so why’d you call fifty witnesses?” Pisciotta remembers thinking. “Was the DA seeking an indictment or fashioning a defense?”
Pisciotta stayed up most of that first night, studied the case law surrounding grand jury secrecy, and before long was ready with the motion. But when he went to Rooney’s court, he was hit with a huge surprise.
The judge’s clerk refused to accept his brief unless it was filed under seal.
In other words, the motion to unseal the secret proceeding had to be secret itself. He could not tell the media what his office had done and couldn’t discuss it with other organizations.
Pisciotta and the rest of the Legal Aid team thought this was crazy. How was it fair to ask lawyers to keep the whole thing secret? He and his team pondered raising a public fuss but ultimately decided to go along.
“We made a strategic decision that it was more important to get this done for justice, rather than making this about PR,” he says. “So we filed, and the court accepted the motion.”
Ludicrously, this secrecy meant that none of these organizations initially realized that the others were trying the same thing. Had it not been for a quirk in the résumé of a lawyer in the public advocate’s office, it’s possible that none of the five petitioners would ever have heard about the others. It’s even possible that the entire effort to unseal the Garner minutes would have remained completely secret from the public.
The public advocate is the second-highest elected office in the city of New York and serves essentially as a kind of government ombudsman, an elected official keeping watch over other elected officials.
The advocate’s job is to keep his or her doors open to the public, listen to complaints, and pursue concerns aggressively. De Blasio was the city’s public advocate before becoming mayor, and the current officeholder, Letitia “Tish” James, was not only the first woman of color to hold citywide office in New York but had kept open lines of communication with the Garner family. When James’s lawyers went off to Rooney’s court to file their motion, they were stunned by the demand that the motion itself be kept under seal.
The two attorneys working for the public advocate were Jen Levy, the office’s general counsel for litigation, and Matthew Brinckerhoff, of Emery Celli Brinckerhoff & Abady, probably the city’s most prestigious civil rights firm. The lawyers thought Rooney’s demands for secrecy were ridiculous and confounding. The problem was that there didn’t seem to be anything to do about it, given that the order meant you couldn’t even mention the problem to any other living soul.
“You couldn’t tell reporters to come and then get them to guess what had happened,” Levy remembers. “As in, you know, if I blink once that means yes, twice it means no.”
Frustrated, Levy and Brinckerhoff put their heads together to think of a way around Rooney’s dictum. By coincidence, both had been tenant attorneys once upon a time and remembered a tool they’d often had to use to force courts to swiftly reconsider the sometimes-unsound ex parte orders of judges.
“As a tenant lawyer, sometimes you have clients who are at risk of being evicted the next day,” remembers Levy. “If they get a denied order, then it’s important for them to have some ability to seek an immediate appeal.”
The tool, they recalled, was Civil Practice Laws and Rules (CPLR) provision 5704(a), aka “Review of ex parte orders by Appellate Division.” Rule 5704 allowed them to go over the heads of judges to the state’s appellate division to ask for reconsideration of an order.
Levy and Brinckerhoff filed their motion under seal, then went to the appellate division and asked for a review of Rooney’s order. They won.
While the advocate’s office was making their 5704 appeal, the NYCLU, led by veteran civil rights lawyer Arthur Eisenberg, went to Rooney’s court with their own motion. Soon after, the NAACP and the Post joined in. While the streets of New York were consumed for weeks by protests, another more concentrated battle was coalescing around the Garner grand jury.
What had happened in the 139 days between Garner’s death and the grand jury decision? What was said in that room?
This puzzle over a secret legal proceeding quickly became another powerful metaphor for the underlying problem of American race relations. Just as there was no way for anyone to really know any person’s true feelings about race, there was no way to ever be completely sure about what had gone on in a grand jury hearing.
Prosecutors insisted that the process had been on the level. The family—and most of black and immigrant New York—was convinced that something dirty had gone on in that room. On the most mundane level, the effort to peek inside the Garner grand jury was merely a huge legal challenge, intellectual safecracking that would require finding a way around a bedrock concept in the Western legal tradition, grand jury secrecy.
But on another level, the five legal petitioners were engaged in a profound historical mystery. The sealed Garner grand jury proceedings became a stand-in for the Pandora’s box of American racism. The effort to open it was symbolic of the larger argument about what exactly was going on behind the walls of American race relations—what was really happening inside our homes and offices, inside our own minds.
Were we a postracial society, as so many people claimed? Or was there something crooked and evil just below the surface? Opening the grand jury proceedings could allow the country a rare glimpse at the truth.
TWELVE JIMMY
On May 31, 1971, in a small city called Benton in southern Arkansas, a young African American woman named Clementine Russ, a newborn baby in her arms, stepped into a shiny green Delta 88 Oldsmobile with her husband, Carnell.
The two had met more than half a decade before in a furniture factory in Monticello, a small town an hour or so to the south. Carnell had been overcome by the sight of the stunning young woman incongruously dressed in goggles and a white work shirt who worked the rip saw a few feet over from him on the factory floor. He’d courted her almost from first sight.
Clementine for her part was less impressed at first. But eventually she gave in to the burly young man who lied about his age (he said he was older, to impress her) and was always testing her patience, dirtying up her clean work clothes by putting his grease-covered hands around her waist.
“He just wouldn’t give up,” she remembers, thinking back. “I got to liking him. He was funny and always carrying on.”
Now it was years later, and they were married and had a large family. Clementine sat in the front of Carnell’s new car with their week-old daughter, Fashunda. Five of her other children—Roosevelt, Curtis, Sylvia, Joyce, and Verna—were in the backseat.
Clementine’s grown cousin, Denton “DeeDee” Lambert, sat next to her on the bench front seat.
Although there were nine people inside, Clementine remembers that it didn’t feel crowded in the car. They were planning on a ninety-minute drive to the southeast, from Benton to Monticello. They left Benton around four in the afternoon. Carnell was due back to work at the factory at midnight that night.
On the way, the family detoured into the town of Pine Bluff, where Carnell stopped at a record store called Yancy’s. Inside, he bought a new 45 from an R&B band called Billy Butler and Infinity.
The name of the record was “I Don’t Want to Lose You.”
After the quick stop, the family piled back into the car and headed for Monticello. On the road between those two towns lay Star City. Although they’d been married there, the town had a bad reputation among black people in southern Arkansas. Clementine remembered years before not being allowed inside the town laundromat. The family didn�
��t intend to stop there.
About six miles before Star City, along a grassy two-lane highway that is today called Route 425, Carnell rounded a slight turn and came over a hill, beginning a long descent toward the town.
A few moments later, he heard a siren. A white Arkansas state trooper named Jerry Mac Green was behind him, signaling for him to stop. Carnell pulled over.
Trooper Green ostensibly stopped Carnell for speeding, although the real offense may have just been driving too nice a car. He didn’t trust the man to pay his fine later, so he demanded that Carnell drive into Star City and pay a “bond” on the spot.
On the way to Star City, Trooper Green called in for backup. He was met in Star City by two other men in uniform, a Star City police trainee named Norman Draper and another town cop, a Mississippi native with a history of violence named Charles Lee Ratliff. The three men demanded that Carnell come into the police station, where they told him he needed to pay twenty-three dollars before he could leave town.
Carnell came back out to the car to ask Clementine for the money. Years later, Clementine would remember that the three officers followed closely behind and hovered under a nearby tree as her husband leaned inside the car window to ask for money. It was as though they were afraid Russ might try to run.
Carnell took twenty-five dollars from Clementine and walked back toward the jailhouse with the three men. She remembers watching him walk away, around and behind the courthouse, for the last time.
Inside the courthouse, Russ paid the money, then made what proved to be a fatal mistake. He asked for a receipt.
There are differing accounts of what happened next, but they all come back to the same thing. Outraged by Carnell’s insolence, Ratliff ended up shooting Russ between the eyes.
