Something To See Here: Don’t Move Along

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James Doyle

Reviewing the death of Eric Garner during a struggle with police, a Staten Island, NY grand jury found no criminal liability. No need for a prosecution.

Announcing the $41 million settlement of the Central Park Five wrongful conviction cases, New York City Corporation Counsel Zachary Carter stated that, “Our review of the record suggests that both the investigating detectives and the assistant district attorneys involved in the case acted reasonably.”

No need for discipline.

Brooklyn District Attorney Kenneth P. Thompson summed up one more wrongful conviction involving retired Detective Louis Scarcella, who took no notes regarding interviews of the sole eyewitness in the case, by saying: “We can’t say he acted inappropriately.”

These judgments might be right or wrong. Legions of people think (to put it mildly) that they are wrong.

But the thing to notice is that, right or wrong, the official response to these tragedies stops right there: “Nothing to see here; move along.”

The world of criminal justice and the media that monitor it act as if whenever there is no one to hang, there is nothing to learn. We think “accountability” is the same thing as punishment.

But medicine, aviation and other high-risk fields recognize the need for a “forward-looking accountability” that aims to understand and lower the risks of repetition.

The Central Park fiasco left the real rapist on the streets for months, killing one woman and raping three others, sent innocent men to prison for decades, and cost New York City millions. Garner’s death maimed the relationship between the New York Police Department (NYPD) and the community.

Analyze things as Corporation Counsel Carter did the Central Park Five wrongful convictions and the source of these tragedies is either a culpable “bad apple” or simply God’s Will. Stuff will happen even when there is no bad apple. Maybe it will happen again. Not much we can do about it.

This shrugging in the face of the threat of repeating injustices infuriates the public, and the fatalism it reflects is fundamentally mistaken. Risk can be lowered; tragedies can be prevented.

In medicine and aviation, there’s an understanding that no disaster can be explained by a single cause.

A plane crash or a fatal medication error is an “organizational accident.” Individual mistakes, none independently sufficient to cause the outcome, combine with each other and with basic system weaknesses to bring on catastrophe.

The right answer to the question “Who is responsible?” for these events is always “Everyone involved,”—if not by making a mistake, then by failing to anticipate or catch someone else’s. “Everyone” includes not just the nurse or cop on the front line, but the distant actors who hired them, designed their training, set their budgets, assigned their duties, and failed to supervise them.

The Central Park Five prosecutors and the police in the Garner case zigged when they should have zagged for reasons. So did Louis Scarcella when he failed to document the eyewitness interview. When the criminal justice system failed in these cases, it did not fail one operator at a time, but as a system.

As Dr. Lucien Leape noted at the inception of the modern patient safety movement, sometimes the frontline operator has been set up to fail.

In a recent publication of the National Institute of Justice, Mending Justice: Sentinel 17 criminal justice stakeholders, including scholars, police chiefs, elected prosecutors, a crime victim, policy-makers, and defenders accepted the fact that Attorney General Eric Holder, Jr. stated in his preface: “As justice system professionals we are deceiving ourselves if we think our decisions and actions are infallible.”

All argued, each from his or her own perspective, that criminal justice needs to develop the capacity for the same level of dispassionate, non-blaming, risk-oriented review that the National Transportation Safety Board brings to aviation accidents and near misses.

A system has to hold its conscious rule-breakers accountable, but in criminal justice, as elsewhere, the deeper problem is not protecting a perfect system from bad humans; it is continuously monitoring and addressing the fragile system’s own weaknesses.

Of course it is right to ask whether Eric Garner’s death was a crime. But there are other questions to ask about how Garner and the officer who killed him collided, and about what happened when they did. To lower the risk of recurrence we have to understand things at the level of policy-making (criminalizing revenue offenses like selling loose cigarettes), at the departmental level of hiring and training, and at the level of the technique and simple workmanship of the police and EMT’s at the immediate scene.

Across this range there may be conscious wrong-doing, but there will also be inadvertent mistakes.

The time to build and announce the capability to perform this non-blaming, all-stakeholders analysis is now, before the next catastrophe. In that next tragedy’s aftermath, any call for a risk-oriented study will be dismissed by the public as an evasion.

All-stakeholders groups in Milwaukee, Baltimore, and Philadelphia are working with the National Institute of Justice now on pilot projects. They have had successes, and they have met obstacles. But the work they are doing is vital: the criminal justice system cannot afford to claim perfection, and it cannot afford to shrug and “move along” whenever a tragedy is not a crime.

We’ve paid a terrible price for the lessons these disasters can reveal; we should learn them.

New York Police Commissioner Bratton and Mayor Bill De Blasio would be in a different position today if they had available (and used) the option of mobilizing a standing group of stakeholders to assess the “forward-looking” accountability issues when the Garner grand jury voted a “no bill.”

For that, matter the rank-and-file NYPD frontline troops would be in a better position too. If we manage to pivot from concentrating on blame to attacking future risk the police, the prosecutors, the defenders, the technicians—all of the practitioners who have worked long hours at low pay to try to do justice—will have a way to show what is currently buried: namely, that we may not be prosecuting anyone, but we don’t want this to happen again.

Not only that, we will do everything we can to learn how to prevent it.

This approach will not satisfy everyone who thought prosecution was called for in a particular event, and it will alarm people who think that the best course is to persist in increasingly dubious claims of a unique infallibility in criminal justice criminal justice operators.

But once an analysis of an event is freed from the need to wrestle with disciplinary consequences, it can marshal a diverse range of stakeholders from the community, academic disciplines, various ranks and jobs within law enforcement, victims and their representatives and benefit from their multiple perspectives. It can be relatively transparent.

It can consider factors which would be dismissed as “excuses” in a disciplinary context (caseloads, for example) for what the often are: explanations—features in the front-line environment that made a bad choice look like a good one, and will lie in wait for the next operator who comes along.

Public trust in the system can be gradually rebuilt if after a tragic incident (or “near miss”) mobilizing a careful, all-stakeholders effort to account for the contributing causes is an urgent matter by the people in charge.

The public would like to know that the people responsible for the criminal justice system recognize that when there is someone dead, someone wrongly imprisoned, some guilty rapist left free to find more victims, and millions paid in compensation there must be something to see, and that they won’t move along until they see it.

James Doyle, a Boston defense lawyer and author, was a 2011-2014 Visiting Fellow at the National Institute of Justice. The opinions expressed here as his own. He welcomes comment from readers.


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