Editorial, Opinion

EDIT: Indicting the Impossible

On Wednesday, a grand jury in New York decided not to indict New York City Police Officer Daniel Pantaleo in the July 17 chokehold death of Eric Garner, a 43-year-old black man.

Garner had been selling untaxed cigarettes in Staten Island when Pantaleo and a group of plainclothes officers approached him. In an effort to handcuff Garner, Pantaleo placed him in a chokehold. Garner was brought to the ground, and repeatedly told Pantaleo, “I can’t breathe.” After he uttered this 11 times, he died on the spot.

Garner had a history of asthma. Was Pantaleo supposed to know that? Of course not. But the NYPD banned chokeholds as a means of detainment in 1993, and the medical examiner that performed Garner’s autopsy ruled the death a homicide. Still, the grand jury ruled that there was no grounds for indictment.

Pantaleo relayed a statement to the grand jury through his lawyer, Stuart London. London said Pantaleo assumed that, because Garner was able to speak, even while he was in the chokehold, he could in fact breathe.

“He wanted to get across to the grand jury that it was never his intention to injure or harm anyone,” London told The New York Times Wednesday. “He was really just describing how he was attempting to arrest someone.”

The decision to indict anyone in any circumstance is a complex one. In cases where grand juries are used, it’s up to a group of civilians to evaluate the evidence shown to them by the prosecutor. A grand jury does not decide whether or not someone is guilty. Quite simply, they’re deciding whether to merely bring him or her to trial.

In this case, as in most grand jury cases, the jurors were not sequestered from hearing outside information about the arrest and were shown the video that was taken by bystander Ramsey Orta. The video provided an objective account of the incident.

Former New York Chief Judge Sol Wachtler once said that a prosecutor could convince a grand jury to “indict a ham sandwich.” And indeed, this isn’t just a joke: 2010 statistics released by the Bureau of Justice Statistics indicate that out of 162,000 cases reviewed, grand juries declined to indict only 11 times — a fraction that amounts to about 0.007 percent.

However, the exception seems to involve cases where the jury is trying to indict (or not indict) a police officer. The non-indictment of Pantaleo comes barely a week after the Nov. 24 grand jury decision of Officer Darren Wilson, who was also not indicted in the shooting death of Ferguson, Missouri teenager Michael Brown.

It’s a mystery why it’s so difficult for police officers to get an indictment. Perhaps it’s because officers by default are supposed to be trusted, or perhaps it’s because prosecutors and jurors alike are reluctant to frame someone whom they rely on for their general safety. So what will it take to see past these roadblocks? Will an indictment for a police officer ever be possible, especially in a case like Garner’s death, where all the evidence very clearly points against Pantaleo? Maybe it’s time to overhaul the system through which police officers are brought to trial.

The Daily Free Press wrote an editorial Tuesday on the use of body cameras for police and said having an objective film account of an incident would help ensure fairness in indictments. But the problem is, there was an objective film account taken by a bystander, and Pantaleo still was not indicted. Every concern about lack of evidence that the jury and the public had with the Brown case, this case disproves. Garner was not a criminal and was not violent with the police, but he is still dead at the hands of a police officer. Even though the idea of body cams is a good one, clearly it’s not enough.

It’s possible that a special prosecutor could be used in investigations of possible police brutality. A special prosecutor is a lawyer from outside the area of the incident who is appointed by the U.S. Congress. They are usually used to investigate government officials for misconduct while in office, such as in the case of a presidential impeachment.

Because the prosecutors currently used in grand jury proceedings are hired by the state, conflicts of interest could arise due to the fact that both prosecutors and police officers are serving the same communities. By default, police officers and prosecutors are on the same side.

And in the same vein, maybe we should consider moving the grand jury elsewhere, to where the people who are choosing whether or not to indict the officer are not directly affected by him or her. It’s unfair to expect a prosecutor or juror from New York to feel comfortable indicting a New York police officer.

After this extremely unsettling pattern of no indictments, it is clear that bigger changes need to be made.

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One Comment

  1. I interrupt this fictional tale with some facts…

    Sources in the mainstream media expressed outrage after a grand jury declined to indict a New York City policeman in the death of Eric Garner, but there are 11 significant facts that many of them have chosen to overlook:
    1. There is no doubt that Garner was resisting an arrest for illegally selling untaxed cigarettes. Former New York City Police Commissioner Bernard Kerik put it succinctly: “You cannot resist arrest. If Eric Garner did not resist arrest, the outcome of this case would have been very different,” he told Newsmax. “He wouldn’t be dead today.
    “Regardless of what the arrest was for, the officers don’t have the ability to say, ‘Well, this is a minor arrest, so we’re just going to ignore you.’”
    2. The video of the July 17 incident clearly shows Garner, an African-American, swatting away the arms of a white officer seeking to take him into custody, telling him: “Don’t touch me!”
    3. Garner, 43, had history of more than 30 arrests dating back to 1980, on charges including assault and grand larceny.
    4. At the time of his death, Garner was out on bail after being charged with illegally selling cigarettes, driving without a license, marijuana possession and false impersonation.
    5. The chokehold that Patrolman Daniel Pantaleo put on Garner was reported to have contributed to his death. But Garner, who was 6-foot-3 and weighed 350 pounds, suffered from a number of health problems, including heart disease, severe asthma, diabetes, obesity, and sleep apnea. Pantaleo’s attorney and police union officials argued that Garner’s poor health was the main cause of his death.
    6. Garner did not die at the scene of the confrontation. He suffered cardiac arrest in the ambulance taking him to the hospital and was pronounced dead about an hour later.
    7. Much has been made of the fact that the use of chokeholds by police is prohibited in New York City. But officers reportedly still use them. Between 2009 and mid-2014, the Civilian Complaint Review Board received 1,128 chokehold allegations.
    Patrick Lynch, president of the New York City Patrolmen’s Benevolent Association, said: “It was clear that the officer’s intention was to do nothing more than take Mr. Garner into custody as instructed, and that he used the takedown technique that he learned in the academy when Mr. Garner refused.”
    8. The grand jury began hearing the case on Sept. 29 and did not reach a decision until Wednesday, so there is much testimony that was presented that has not been made public.
    9. The 23-member grand jury included nine non-white jurors.
    10. In order to find Officer Pantaleo criminally negligent, the grand jury would have had to determine that he knew there was a “substantial risk” that Garner would have died due to the takedown.
    11. Less than a month after Garner’s death, Ramsey Orta, who shot the much-viewed videotape of the encounter, was indicted on weapons charges. Police alleged that Orta had slipped a .25-caliber handgun into a teenage accomplice’s waistband outside a New York hotel.