Summary: Many experts agree that a grand jury is a prosecutor’s tool, and are not surprised at the Eric Garner grand jury decision not to indict the police officer that caused his death.
With the recent grand jury decision in the Michael Brown shooting, and now the Eric Garner chokehold case, the phrase “a grand jury would indict a ham sandwich” has been tossed around in news outlets all over the country. However, according to Gothamist.com, many legal experts feel that this is not so with the recent decision by a Staten Island grand jury not to indict Officer Daniel Pantaleo in the chokehold death of Eric Garner. The decision not to indict was likely induced by the prosecutor, Richmond County District Attorney Daniel Donovan Jr., the experts assume. James Cohen, a law professor at Fordham University who focuses on criminal procedure, explained, “There is no question that a grand jury will do precisely what the prosecutor wants, virtually 100% of the time. This was, as was the case in Missouri, orchestrated by the prosecutor.”
The majority of legal experts have agreed that the grand jury likely did not have enough evidence to support a murder charge. However, many felt that the grand jury could have indicted Pantaleo for manslaughter or criminally negligent homicide.
Here’s an article about a flash mob that was organized in response to Eric Garner’s death.
According to Professor Cohen, “In this case, you had videotape, and the video tape is pretty darn clear. The video showed that the officer engaged in a long-prohibited conduct, a chokehold, and it doesn’t seem to make any difference to the jury. And that’s because the prosecutor decided that there should be no indictment for any criminal behavior.”
Professor Randolph McLaughlin from Pace Law School, also a civil rights attorney, agreed with Professor Cohen. “The grand jury is a tool of the prosecutor. At a minimum, it was negligent, it was reckless, it was some level of homicide. Surely they could have indicted this officer on any number of charges and let the public hear, let a trial happen, expose to the light of day what went on here. This man is a public servant, and he committed these acts as a public servant, wearing the uniform of a public servant, and he should be called to account for it.”
Here’s an article about the grand jury’s decision.
District Attorney Donovan issued a statement saying that he cannot discuss any details of the grand jury proceeding. Although he is barred from discussing what took place in the proceeding, he has petitioned the court to release the information.
Jeffrey Fagan is a law professor at Columbia. Professor Fagan specializes in police accountability and criminal law. He was “not surprised” by the decision. He commented, “It’s politically costly for Dan Donovan to indict a police officer on Staten Island. He can easily shift the political and legal burden to the Department of Justice to decide whether to pursue criminal charges. He’s washed his hands of it.”
Read about the uproar in Ferguson after the grand jury in the Michael Brown case made its decision.
As far as the federal civil rights statute goes, Fagan explains that it “is a big hurdle to get over. Not impossible, but it will take some work.” He recommended that civilian deaths involving the police may be better off handled by a special prosecutor: “The result here, as in Ferguson, may have as much to do with the grand jurors as with the preferences of the prosecutors. Grand jurors in Staten Island may not be all that different in their world view from grand jurors in suburban St. Louis.”
Cohen expressed doubt that the federal government would pursue any charges against the officer. “You see these things coming one after another after another after another, you hear black parents being afraid to let their children go out in the street in day or night, maybe that will tip the balance. But I fear that’s my own naiveté speaking.”
McLaughlin said he was “almost speechless” after the grand jury decided not to indict Pantaleo. McLaughlin has handled wrongful death cases involving law enforcement since 1997. He said, “Look at the facts of the case, and the video tape, and the fact that the officer has his arm around the man’s neck in a chokehold, and the man is saying ‘I can’t breathe.’ If you can’t indict that cop for anything, then basically you can’t indict a cop for killing a black man, period.”
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