The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, a Staten Island grand jury declined to indict a New York City police officer in the chokehold death of Eric Garner. Almost immediately, Attorney General Eric Holder announced that the Justice Department would conduct an "independent, thorough, fair, and expeditious" federal civil rights investigation into Garner's death.
I want to focus on the Attorney General's promise that the Garner investigation will be "expeditious." Sadly, the Department's track record in recent highly-publicized cases—i.e., the Michael Brown case and particularly the Trayvon Martin case—does not inspire confidence. We still have no decision from the department about whether it will file federal charges in these cases even after it appears that it has collected all significant evidence. If the department were to quickly announce its findings on the Brown and Martin deaths—one way or the other—that help build confidence that federal civil rights investigations of other high-profile deaths, such as Garner's, will actually reach a result.
Turning first to the federal investigation in the Michael Brown case: After Michael Brown was shot this year on August 9, the Justice Department quickly opened an investigation into whether Officer Darren Wilson violated federal civil rights statutes. On August 11, Holder released a statement saying that the shooting "deserves a fulsome review."
On August 15, the Justice Department's Civil Rights division released a statement that the investigation was an extremely high priority, explaining that "[o]ver the next several days, teams of FBI agents will be canvassing the neighborhood where the shooting took place to identify any individuals who may have information related to the shooting and have not yet come forward."
According to media reports, 40 FBI agents descended on Ferguson to canvass the area and collect whatever evidence they could find. Within ten days of the shooting, Holder said he had assigned the most experienced agents and prosecutors to the investigation. He reported that federal and state agents had interviewed hundreds of people and that federal medical examiners performed an independent autopsy, the third conducted in the killing.
Then, after that flurry of activity, for the next few months little was heard about the federal investigation. But the state investigation moved forward, with the grand jury hearing more than 70 hours of testimony from more than 60 witnesses. The grand jury, of course, ultimately reached a conclusion ten days ago when it found insufficient evidence of a crime to support an indictment.
The night the state grand jury's decision was released and the state investigation ended, Holder quickly stated that the federal investigation continued: "[T]he Justice Department's investigation into the shooting of Michael Brown remains ongoing. Even at this mature stage of the investigation, we have avoided prejudging any of the evidence. And although federal civil rights law imposes a high legal bar in these types of cases, we have resisted forming premature conclusions."
The question worth considering is when does drawing conclusions in a "mature" investigation switch from being premature to overdue? Given the massive investment of federal resources more than three months ago in Ferguson—not to mention the thorough state grand jury investigation—it is hard to imagine that any significant evidence remains uncollected. If the Justice Department has concluded that it lacks sufficient evidence to file federal charges against Officer Wilson, it would certainly be helpful to allaying criticisms of the state investigation if the department promptly released that conclusion.
Given the recency of the grand jury's decision about the Michael Brown shooting, perhaps the department should get the benefit of the doubt as to why it has yet to announce its conclusion. But the department's handling of the high-profile civil rights investigation into the Trayvon Martin shooting raises even more questions.
Some background on this case: On February 26, 2012, George Zimmerman shot and killed Trayvon Martin—another racially-charged killing in disputed circumstances about the need to act in self-defense.
The Sanford Police Department investigated and turned over materials to the state attorney, apparently recommending no charges be filed. But (among other pressures ) change.org put together a petition calling for Zimmerman's arrest and the NAACP asked the Justice Department to get involved in the investigation.
On March 20, 2012, the Justice Department announced that the FBI would probe the death. On April 2, 2012, Martin family attorney Ben Crump (who would later represent Michael Brown's family) sent a letter to the Justice Department alleging improper interference by state prosecutors in the state criminal investigation.
Prosecutors quickly denounced the allegations and encouraged the Justice Department "to investigate and document" that no improper interference occurred. A "special prosecutor" was also appointed in the case and filed state homicide charges against Zimmerman.
Several months later, materials were released showing that the homicide investigator in the case had told the FBI that he "believed that Zimmerman's actions were not based on Martin's skin color, rather based on his attire, the total circumstances of the encounter and the previous burglary suspects in the community."
About a year later, after various delays, on June 10, 2013, Zimmerman's trial began. Following a lengthy trial, on July 13, 2013, the jury acquitted him.
Two days later, Holder (in the speech depicted nearby) said the killing of Martin was a "tragic, unnecessary shooting" and that the 17-year-old's death provides an opportunity for the nation to speak honestly about emotionally-charged issues. The attorney general said that Martin's parents had suffered a pain that no parent should have to endure.
On November 19, 2013, the Post interviewed Holder about the progress of the federal investigation into the Martin shooting. Holder said that the investigation would be completed "relatively soon." He promised that the Justice Department would "put together a report that we can share with the American people, so that we simply don't make an announcement, whatever it is."
That was more than a year ago—and nothing has happened since. The Post reported two months ago, on October 1, 2014, that the Martin investigation "technically remains open, but it is all but certain the department will close it," according to various knowledgeable law enforcement officials.
Why has it taken the department two-and-a-half years—and two election cycles—to complete its investigation of the Martin shooting? That case involved an interaction between just two people (Martin and Zimmerman), a tiny number of relevant witnesses, and just a few items of physical evidence. The attorney general promised more than a year ago that the investigation and a full report to the public would be completed "relatively soon." And yet, the department has produced nothing, prompting speculation that it is delaying its announcement to avoid political disfavor in some quarters.
And now comes the Eric Garner case. With regard to substance, the facts are disturbing—and seemingly, in large part, recorded on video. And with regard to procedure, unlike the Michael Brown grand jury, we don't have transcripts of testimony to peruse to make an informed assessment about the fairness of the process. Questions abound.
Here's where the Justice Department could perform a valuable service—by actually completing this civil rights investigation expeditiously. To be sure, the proof required for a federal rights charge is demanding.
But if the Eric Garner facts are as clear cut as the video makes them out to be, there is no reason why the Justice Department can't rapidly investigate the case and quickly announce what it finds. The Justice Department should live up to the attorney's general's promise yesterday to "expeditiously" announce its decision on whether charges are appropriate in the Eric Garner death … and in the Michael Brown and Trayvon Martin deaths.