Melissa Harris-Perry: Hi, y'all. I'm Melissa Harris-Perry and this is The Takeaway. A reminder, it's been more than two years since Aurora, Colorado police put Elijah McClain in a chokehold and injected him with a sedative during an arrest. McLain lost consciousness, was hospitalized, and was later removed from life support, but now--

Speaker 1: Grand jury has indicted three officers and two paramedics in the death of Elijah McClain. It's the 23-year-old Black man who's put in a chokehold.

Melissa Harris-Perry: It's been nearly 18 months since Greg and Travis McMichael pursued, shot, and killed Ahmaud Arbery as he was taking a jog in a neighborhood in South Georgia, but now--

Speaker 2: The former district attorney of Brunswick, Georgia facing an indictment in connection to her actions surrounding the Ahmaud Arbery investigation.

Melissa Harris-Perry: Although the public only recently learned about it, it's been more than two years since Louisiana State Police troopers brutalized and killed Ronald Greene during a routine traffic stop, but now--

Speaker 3: In video obtained, released, and edited by the Associated Press, the brutal and violent arrest and subsequent death of Ronald Greene is captured on body camera.

Melissa Harris-Perry: If justice delayed is indeed justice denied, then we must ask is justice possible in any of these cases or the hundreds of others that never make the headlines? If there's one person I know who could help me respond to this question, it's Attorney Ben Crump. He's been the attorney for a lot of high-profile cases, including Trayvon Martin, Michael Brown, Breonna Taylor, George Floyd, and the town of Flint, Michigan. He's attorney to Ahmaud Arbery as well. Mr. Crump Welcome back to The Takeaway.

Ben Crump: Thank you so much for having me, Melissa. It's such a honor to be with you.

Melissa Harris-Perry: Can you explain to our audience just a little bit about the steps along the long road when someone is unjustly killed, maybe particularly in cases of racist violence or state violence? What does it take to get some kind of indictment, some kind of accountability?

Ben Crump: Well, Melissa, when you think about the killers of marginalized people of color by police or quasi authoritative figures who are not people of color, when you have an unarmed Black person killed by a white police officer, you often see we have to go through extraordinary lengths to be able to just get simple justice, to get due process. Obviously, we all think back and it's hard to believe Melissa, it's almost 10 years coming up on the killing of Trayvon Benjamin Martin, 17 years old walking home, where he was profiled, pursued, and shot in his heart by the neighborhood watch volunteer who had a nine-millimeter gun.

It was there that I first started telling everybody, "When you're Black and you're killed by a non-Black person in America, you have to fight in two courts. First, you have to fight in the court of public opinion, and then if you win there, then just maybe, just maybe you might get a chance to have your day in the court of law." No guarantee, because we saw with Eric Gardner, we all won the court of public opinion, but yet his family, his mother, Miss Gwen Carr, they still have never got their day in court.

Melissa Harris-Perry: In what places is it necessary for a grand jury? One of the things that we see so often is that local prosecutors will say, "Well, we've got to take this to a grand jury for indictment," and then we'll hear that the grand jury has decided not to indict. In other places, it seems like the DA, the prosecutor simply indicts. What are we missing as a public on this?

Ben Crump: Well, what I believe it is, Melissa, and I write about it in my book Open Season: Legalized Genocide of Colored People. It is this notion, this concept of the intellectual justification of discrimination. The prosecutor who often do not want to charge these police officers when they kill people in our community unjustly, they will come up with ways to try to not administer justice as they're supposed to. What they often do is say, "Well, we don't have enough evidence to create probable cause to charge the person, so we're going to turn it over to a grand jury. If the grand jury doesn't indict them, doesn't come back for a true bill, then we're going to say, 'Well, we left it up to the people, the community, and they made the decision.'"

Which is such a ridiculousness, because what we all know, is that they can prosecute a ham sandwich, if they want to. Literally, Melissa, it's so deep that they get the grand jury to return indictments on 99.9999% of the time, but Melissa Harris-Perry when it's a white police officer killing a Black person, then that number is reversed. It's almost as if they can never get an indictment, even when you have video and such, all kind of objective evidence. They say, "Oh, well, the grand jury didn't come back for the indictment." What they fail to tell you is the grand jury is made up of lay citizens, and they're the only lawyer in the room, and so it's whatever that prosecutor wants them to do, they're going to do

That's why it's so heartbreaking as we continue to fight for the family of Breonna Taylor because you had Daniel Cameron, the African American Attorney General, the Republican Attorney General, who went in that grand jury room, and even when members of the community asked questions about, "Can we even consider charges of murder against these police officers for shooting down this unarmed young Black woman in her own apartment?"

He told them, no, that decision had already been made based on the law that they couldn't charge, which is a perfect example of the power that the prosecutor wields in the grand jury box. We get to call BS when they come and say, "Oh, well, the grand jury failed to return an indictment." That's because you gave them information to reach that conclusion.

Melissa Harris-Perry: Speaking of exactly that point, the former district attorney in Brunswick, Georgia, Jackie Johnson, is now facing an indictment herself connected to the actions surrounding the Ahmaud Arbery investigation. Can you say a few words on that?

Ben Crump: Certainly a co-counsel attorney Lee Merritt and I, we applaud the efforts of Chris Carr, the Georgia Attorney General for coming back with this indictment, and the grand jury having all the information to see that this prosecutor gave more respect and gave more consideration to the murderers, the lynch mob who chased Ahmaud Arbery down and lynched him for jogging while Black. What Jackie Johnson did was, even though she saw that video on day one, the same video that we saw 72 days later, she made a decision that she was going to try to help her friend, former police officer Gregory McMichaels, who with his son, Travis McMichaels, hunted Ahmaud Arbery like a dog in the street and we saw killed him with that shotgun, those two shotgun wounds.

What we often see is prosecutors put their thumbs on the scale of justice, whether it was the prosecutors and Michael Brown case in Ferguson. Obviously, we just talked about Breonna Taylor, but then you saw with Ahmaud Arbery, had that video not come out, she never would have charged the killers. Even worse than that, she obstructed justice by talking to the person who she was going to refer the case to when she came up with this alleged conflict of interest. It was almost like a conspiracy that we believe was going on to make sure that the killers of Ahmaud Arbery were never going to be brought to justice. This should be a precedent for these prosecutors who, for decades, Melissa Harris-Perry have always tried to make sure justice was denied to Black people in America.

Melissa Harris-Perry: Now, I know that you are not officially representing the family of Elijah McClain. I want to talk about just one aspect of that case out of Aurora, Colorado, because one of the things that police used and have been using in their conversation around that is excited delirium. It's also language that we heard in other recent cases, and it sounds like such official medical psychological term. Can you talk about it a little bit?

Attorney Ben Crump: It is one of the most asinine concepts that I have ever heard of when you think about it. This excited delirium theory is this concept that says, once the police put you in the chokehold, or the police put you in a prone position, and you die. If you’ve ever once used cocaine in your life, they try to say, "Oh, well, you have a history of cocaine use." It could be 20 years ago, or what have you, Melissa. They then try to say, "Oh, the cause of death is not what you see on that video with a police having his knee in the person's back, and then been handcuffed. The cause of death is unrelated to the acts of the police."

The cause of death is going to be this concept that the police experts, people who testify for police on a regular basis, have developed and the courts, over time, have adopted as actual science, even though there isn't sufficient data or testing to be able to prove that this concept really exists. If it was for real, I believe Melissa, we should see people just walking down the street falling out day based on this concept that, "Oh, if you use cocaine once it can cause stress on your heart, and unbeknownst to anybody, it can cause you just to die." The only time they cite excited delirium as a cause of death is in police and custody deaths. Nowhere else do they cite this.

Again, it's just the prosecutor's attempt to justify the unjustifiable actions of excessive force by police officers. It goes back to Jackie Johnson, who, I say, very profoundly, she did not put the trigger to kill Ahmaud Arbery. She played a starring role in the cover-up. That's what happens so many times with excited delirium. Even though the prosecutors did not put their knee in the back, didn't do these terrible physical acts to these unarmed Black people who they killed, but the prosecutor will then come and be the start of the cover. They will tell the police, "We got you. We’re going to make sure that you get out of jail free pass card."

You have so many dynamics going together, Melissa Harris-Perry to be able to allow the police to kill us legally. Whether it's excited delirium, whether it's qualified immunity, the United States Supreme Court doctrine that says all the police have to say when they kill us, no matter how unreasonable and how much objective evidence we have, all they have to say it's three little words, "I felt fear, I felt threatened." Then the Supreme Court say "Oh, you can't Monday morning quarterback the police. You weren't there." If they felt this subjective fear, then everything is justified even though yet again, we have another Black man running away shot in the back, and we're going to say the police then use excessive force.

Melissa Harris-Perry: Attorney Ben Crump, thank you so much for always being a companion on that long road to justice. Thank you for joining us today.

Attorney Ben Crump: Thank you so much, Melissa. Continue to use your voice for the voiceless and to uplift our culture.

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Melissa Harris-Perry: How do organizers and activists ensure sustained media attention and public pressure demanding victims are not forgotten and assailants are held accountable? Scott Roberts is Senior Director of Criminal Justice Campaigns for Color Of Change, the nation's largest online racial justice organization. Scott, welcome to The Takeaway.

Scott Roberts: Thanks, Melissa. Thanks for having me.

Melissa Harris-Perry: Talk to me a little bit about how we take these stories that sometimes are 18 months, 2 years, sometimes even longer than that, when they first come into our public consciousness. How do we sustain momentum around them?

Scott Roberts: That’s a great question. I'm glad we're talking about this today. Organizing within the world of campaign strategy around these cases for justice, we talk a lot about the drumbeat. Keeping up a steady flow of communication, of action around these cases, keeping them at the top of mind, making sure that we're making interventions in our political system around these cases. I think that often times, especially for those of us who are following at the national level, these cases look like there's a short attention span around them. National media, even to an extent national organizations like my own, show up, talk about these things when they've captured the national consciousness.

The reality is, on the ground locally, the families, local activists, and organizations are involved in really long fights that can be really dragged out over, as you said, lots of years. I think one of the core tenets is sending a clear-cut message to the community that, "We're not going to be able to move on, get back to business as usual until there's some justice here in these cases." You see folks using lots of tactics that are really visible, showing up in places, in Los Angeles where the former prosecutor, as I heard you on earlier with Ben Crump talking about the power of prosecutors in these cases and in these fights for justice for people who have been victims of these types of violence. In Los Angeles, Black Lives Matter showed up weekly at former prosecutor Jackie Lacey's office, demanding that she prosecute a number of cases, keeping those cases at the forefront.

Melissa Harris-Perry: I think that it's an interesting strategic point, right? That on one hand, you can see local organizations, activists mobilized on that drumbeat weekly basis. I'm also thinking about that national-- You've played out for us this local versus national. From a strategic perspective, we just know that national media isn't going to stay on any one story in that weekly drumbeat. Are there key moments in that road to justice, or at least accountability, when national organizations like Color of Change or national media are most useful? Maybe the indictment phase or the sentencing phase. I'm just wondering if there’s strategy around that mobilization?

Scott Roberts: I think we try to create a lot of moments. This is, part of what I wanted to get to is that, yes, there are these stages around the case, like you said. There's indictment, grand jury, there are the release of videos, things like that, that's often really a peak moment in attention, when there's a visual for people to see, to get clarity on or to debate what they're seeing when the case is going to be up front, when the case is starting. During the course of the George Floyd case, we had [unintelligible 00:18:15] for our monitoring, basically, what was happening, trying to keep people informed online.

We thought about it almost like the O. J. Simpson case, and that we knew that people will be paying close attention to it as an opportunity to not only keep the focus on the case, but on the overall issues that are being brought up. I think there's also other moments that are celebratory or commemorative, the birthday of the person, the anniversary of their passing. These are the moments where we try to push them back into the national conversation for sure.

Then we try to create moments. There may be, say, for instance, in the case of Breonna Taylor, local activists, and we collaborated with these folks, just taking moments that are normally part of the story of Louisville, like the Kentucky Derby, for instance, and tried to turn it into a moment that's about Breonna Taylor by showing up with a protest. We flew a plane banner over the Kentucky Derby. Also just inserting the story into those other national moments that spotlight these cities and these communities.

Melissa Harris-Perry: When you mentioned the birthday of the person who has been victimized, help us understand the difference between keeping the victim and their story, their reality at the center, without making just the moment of their death the only thing that we know about them?

Scott Roberts: We believe in a Black-joy approach to this work, even though we're dealing with devastating, heartbreaking cases many times. We want to celebrate the person's life. We want to, for lack of a better word, humanize them, because so often the opposition, the forces that are anti accountability are trying to demonize, criminalize these individuals. When we get to, let's say, their birthday, we get to tell the story of their life rather than their death. I think that's incredibly important to keeping people engaged, keeping people demanding justice, and reminding us why we're fighting in the first place because we want to defend the lives of Black people against racist state-sanctioned violence.

Melissa Harris-Perry: What is your one piece of advice for folks who might be frustrated about the stories that have fallen out of the news where they're like, "I really want to know what happens next there, and I want to impact and affect it?"

Scott: I will go back to my original point that there are-- I promise you, there are local activists, the families, there are local journalists, attorneys that are all sticking on these cases. They're being persistent, they're determined to see justice. I would find them, I think on social media is one of the best tools finding those local activists who are focused on those individual cases. They will give you actions you can take, things that you can do even as the cases fade from the national spotlight.

Melissa Harris-Perry: Scott Roberts is Senior Director of Criminal Justice Campaigns for Color Of Change. Thank you for joining us, Scott.

Scott Roberts: Thank you.

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