New Documentary Offers Delayed Justice for Eric Garner

An Israeli director's semi-experimental documentary 'American Trial: The Eric Garner Story' imagines the trial that never was

Nirit Anderman
Nirit Anderman
Nirit Anderman
Nirit Anderman

Sometimes it seems like reality has a way with timing. It sends a culture reporter to interview a filmmaker on the other side of the world, and while the two are chatting leisurely, it takes the pointless death that is the subject of the interview, recreates it in an infuriating manner, has it provoke a full-blown riot and send angry masses into the streets, and proves that in effect, nothing has changed.

The riots that erupted across the U.S. in recent days make it unequivocally clear that Roee Messinger’s debut film “American Trial: The Eric Garner Story” isn’t only about one specific horrible death, but about a far broader problem – a worldwide social abscess that refuses to disappear.

Last Tuesday, immediately after my interview with Messinger, whose film is about the death of Eric Garner – a black man killed in New York in 2014 as a result of the physical violence used by police officers who were trying to arrest him – the news was filled with the reports about the death of George Floyd in Minneapolis.

A protester takes part in a march through Staten Island, New York, protesting the death of Eric Garner, August 23, 2014.Credit: ANDREW RENNEISEN / NYT

The similarity between the two deaths is appalling, especially after watching the videos of their extremely violent arrests, as they beg to be able to breath. 

In the video footage from 2014, Garner argues with police officers in the street. They want to arrest him, he claims that they’re harassing him for no reason, they insist, and in the end one of the policemen approaches him from behind, puts him in a chokehold and throws him to the ground. Garner repeatedly says, “I can’t breathe,” but five or six policemen continue to pin him to the ground, bending over him. They don’t stop. One of them pushes his face into the sidewalk, hard. Garner was pronounced dead an hour later.

Garner’s harrowing killing led to violent protests and launched the Black Lives Matter movement, which attacks systemic violence and racism against blacks. His final words, “I can’t breathe,” became a slogan in demonstrations against police brutality toward blacks.

Messinger was living in Harlem at the time. He had come to New York from Israel a year earlier to study film. When Garner’s death stirred up emotions and captured headlines, Messinger was suddenly thrown into the depth of interracial conflict in the United States.

“The video of Eric Garner being choked was everywhere, it was inescapable, everyone was talking about it in Harlem: on the street, in the grocery store, in the elevator, everywhere. It was on the news, there were demonstrations in the street, it was all around me,” he said in a video interview from his New York home.

Shortly afterward, it was decided that Daniel Pantaleo, the police officer who had choked Garner, would not be tried – even though the autopsy determined that the choking contributed to his death. Messinger wanted to look deeper into this story.

Roee Messinger at the premiere of his film at the New York Film Festival in October 2019.Credit: זימביו

“It’s not that I was naive about interracial relations in the United States, but I didn’t know that the situation was so serious. I couldn't belive that in 2014 it was possible to choke a black man to death on a New York street, and that nothing would happen,” he says. If the state won’t try the officer who had choked Garner, Messinger decided, he would mobilize the screen for this purpose and direct a film that would show how the trial should have looked.

In July 2015, on the first anniversary of Garner’s death, Messinger went to demonstration in Brooklyn where he met Garner’s widow, Esaw Garner. He told her about his idea for the film, and received her consent to collaborate with the project. The result, “American Trial,” a courtroom drama that was first screened at the New York Film Festival in October, and is now being shown throughout the United States online rather than in movie theaters because of the coronavirus.

In the film, real-life lawyers were cast in the roles of defense attorneys and prosecutors, and expert witnesses and people who had firsthand knowledge of Garner’s case were called to the witness stand. The only actor in the entire story is the one who plays Officer Pantaleo. Messinger insisted on not writing a script, letting the lawyers lead the events as close as possible as how they would have been in a real trial.

“For me the idea was to show the trial that could have taken place, rather than the trial that I think should have been,” he says to explain the decision to film without a script. “Had I written a screenplay, this trial would have presented Roee Messinger’s sentencing, and who cares what I think. And that’s how it transpired that I took people who could really have participated in the trial. Lawyers are in a sense the scriptwriters of this film, because they are the ones who asked the questions and prepared their witnesses to answer questions, just as is done in a trial.”

A still from "American Trial: The Eric Garner Story."Credit: Ari Rothschild

Let the viewers decide

Messinger, 34, was born in Jerusalem. At the age of 12 he and his family moved to Mexico for six years because of his father’s work – his parents are psychologists – and studied in an international high school there. When he returned to Israel to do his army service, he already felt somewhat out of place, he explains, and missed the international atmosphere. After completing his bachelor’s degree in history and philosophy, he applied for the prestigious Fulbright scholarship to study in the United States.

He was accepted to study film in New York, and his wife, who also received a Fulbright, went to study communications and international relations in Washington. She now works at the United Nations while he pursues his film career, and they don’t have plans to return to Israel at the moment.

Messinger had to be creative when looking for funding for the film. He was a newly minted film studies graduate about to direct a debut film, an unscripted semi-experimental project – a proper courtroom drama that didn’t promise exciting action scenes or glittering stars – not the kind of project for which funding comes easily. Messinger’s solution was innovative but not without problems. Since he decided to cast real-life lawyers, and because there is strong competition among law firms in New York, he turned to several dozen firms and offered them a package deal: Invest in the film, and if you are found to be a good fit, you can star in it as part of the defense or prosecution.

Los Angeles Lakers' Carlos Boozer wears a shirt reading "I Can't Breathe," a rallying cry for demonstrators after the death of Eric Garner. December 9, 2014.Credit: Jae C. Hong,AP

Of the about 100 firms he contacted, around 30 expressed an interest. He then went to watch lawyers in court or invited them to auditions in which he played a witness that they had to question. “The lawyer who plays the defense attorney in the film really caused me to sweat during the audition and feel uncomfortable when she questioned me, so I decided that she was probably suited for the role,” he says.

Having whoever pays more money get to star in a film sounds problematic. It’s not a clean choice.

“I chose those who were a good fit, and I’m at peace with myself. As far as I’m concerned, what I wanted to show in the film is a possible version of the trial, and that’s why in a sense it doesn’t make much of a difference which lawyer appears in the film.

“After all, I couldn’t take Pantaleo’s real lawyer to serve as a defense attorney in the film. So if it isn’t him, any criminal defense attorney can be there in his place. What did bother me is that I didn’t want to feel obligated to a specific lawyer to set up his role in a particular way because he paid for the film. But in the end, because the defense and the prosecution funded the film equally, I felt released from all that pressure.”

A still from "American Trial: The Eric Garner Story." Credit: Ari Rothschild

In the film, Garner’s widow goes up to the witness stand, and you can see that it’s difficult for her emotionally. And at the end of the film she confesses with heartrending sobs how she felt while watching this filmed trial. Were you prepared for this outburst of emotion, did you prepare her for it?

“Yes. Look, in the past five years we became very close and the work on the film was very intense. I explained to her that I wasn’t interested in conducting a court martial, and that I wasn’t going to make a propaganda film, because this is what would get people to take it more seriously and pay attention. I explained to her that it means that the film could include testimony that would be unpleasant to hear, and that it was probably going to feel very real, that the cross-examination by the defense attorneys could be difficult.

“She agreed, saying there was no problem, but still at the end she was surprised by how real it felt that day. But from the many discussions I’ve had with her since then, and from interviews she gave, actually she has no regrets and she’s glad she did it, even if it was hard for her that day.”

A still from a video shows a police officer arresting George Floyd in Minneapolis, Minnesota, May 25, 2020.Credit: Darnella Frazier/AP

For five years you dove into the heart of American racism. What did you learn about the subject that you didn’t know before?

“I learned a lot about the judicial system, but I also learned how racism against blacks in the United States is still institutionalized and it’s shocking. The statistics speak for themselves. In the U.S. there’s something like 1,000 citizens killed each year by the police. And a quarter of them are black. That’s twice their percentage of the total population, which is 12 percent. The number of unarmed blacks who are killed by the police is double the number of whites killed that way.

“If a police officer sees a white man carrying an M16 rifle, the chances that he’ll shoot him are lower than the chances that a policeman will shoot at a black man who isn’t even armed. In the year that Garner died, out of about 1,000 people killed by the police, indictments were submitted against four police officers! And of those, only one was convicted, and even he was not imprisoned. That’s just insane.

“Beyond police violence, it’s of course related to issues like the average life expectancy of blacks in the United States, which is much lower [than for whites], and the rates of imprisonment of whites and blacks. [According to U.S. Justice Department figures, at the end of 2017 there were about 476,000 blacks imprisoned in the United States, compared to about 437,000 whites.]

Protesters demonstrate against the death of George Floyd, Minneapolis, Minnesota, May 29, 2020.Credit: LUCAS JACKSON/Reuters

“It sounds almost dystopian, but tons of blacks are currently in prison, [many] for nonsensical reasons, and they’re forced to work in slave conditions. In other words, the law allows them to be held in slave conditions without paying them. It’s not that I was naive before and thought that it was a country without racism, but the things I learned while making this film definitely opened my eyes and caused me to see how severe and established racism is in the United States.”

And if Garner had been white?

“There’s no question that he would still be with us. For two reasons. As the defense explains in the film, Garner suffered from health problems such as being overweight and asthma, which are far more common in the black community, and it’s quite possible that these accelerated his death. And in addition, a policeman would never raise his hand against a white man who was not threatening him. And you can see clearly in the video that Garner is not threatening the police officers, but only wants them not to touch him and to leave him alone. So no policeman would have attacked a white man like that in this kind of situation.”

In some of the online screenings of the film in recent weeks, the audience served as the jury for the trial. When the screening ended, they were asked to decide whether or not Pantaleo is guilty of the two charges against him – strangulation and homicide. In the last screening, says Messinger, 70 percent of the viewers found Pantaleo guilty on both counts and 30 percent found him innocent.

A weeping protester confronts police during nationwide unrest following the death of George Floyd, Raleigh, North Carolina, May 30, 2020.Credit: JONATHAN DRAKE/רויטרס

“That surprised me. I expected the rate of conviction to be higher,” says Messinger. “But the important question isn’t whether this specific policeman is guilty or not, but how it’s possible that he didn’t stand trial. How is it possible that such a serious crime was committed and wasn’t examined in court? And the unequivocal answer to that question is institutionalized racism. There’s a reason why the protest movement of recent years is called Black Lives Matter, because it’s not at all trivial that the lives of blacks in this country have value.”

I talk with Messinger again after the death of George Floyd and the ensuing riots. He says that the statistics don’t show any change in the number of these kinds of deaths. “It actually points to something being stuck in the entire system, which somehow seems not to care,” he says. “During the last years of working on the film, there was always a similar incident that could be mentioned as a current example. Every time I showed the film, there was never a need to go back more than two weeks to mention a name [of a black man killed by the police] who was familiar to the viewers and they could say, ‘We read about that.’”

Messinger admits that his first thought in light of the great similarity between Garner’s and Floyd’s deaths was that nothing has changed. “It’s quite amazing. Six years have passed, and now we once again have a video of a black man who can’t breathe. And this time it’s even more brutal, because in Garner’s case there was some kind of attempt to arrest him and a reason to pin him to the ground. Here you simply see a person sitting on someone’s neck, until he stops breathing. It’s shocking. You can’t help but go back in time and think about white men lynching blacks in the 1920s in Alabama. It’s astonishing that we’re in 2020 and such things are still happening.”