As a non-lawyer, I generally shy away from commenting on judicial proceedings, especially since all relevant evidence is usually not readily accessible. But I find it impossible to say nothing about the Staten Island grand jury verdict.

The non-indictment of the police officer whose chokehold killed Eric Garner naturally invites comparison with the Ferguson, Missouri case, but the comparison works only up to a point. No one can reasonably say that he knows just what happened in Ferguson—the eyewitness testimony and other evidence present a jumble of conflicts.   But, everyone who has seen the videotape (and who hasn’t?) does know what happened to Eric Garner.  An upset, but unarmed and completely non-threatening Garner was actually backing away when he was thrown to the ground and pinned down by four—four—police officers.   Something like a chokehold was applied while Garner cried out repeatedly, “I can’t breathe!” Garner very clearly never posed a danger to anyone.

Of course there are things that we don’t know even about the Garner case: we don’t know exactly what was going on in the mind of the police officer, Daniel Pantaleo, as he applied the lethal hold, we can’t tell at what point it became obvious that Garner was near death.  But there are almost always residual unknowns in criminal cases.  There is no reason to believe that Pantaleo deliberately murdered Garner, but is there any reason to doubt that he acted in reckless disregard for Garner’s life? I don’t know what the legal categories are—maybe negligent homicide or involuntary manslaughter?—but it is unimaginable that no crime was committed. If nothing Pantaleo did was illegal, then there is something very horribly wrong with the relevant law. Am I missing something? Is there any conceivable hypothesis that can be constructed that would completely exculpate Pantaleo? The whole thing is all the more unreal and outrageous when we consider that the alleged Garner crime that elicited the cops’ attack was selling cigarettes on the street.

I haven’t seen much discussion of the significant fact that the incident and the grand jury decision occurred in Staten Island.  Staten Island is an outlier among New York’s five boroughs, in a literal geographic sense as well as socio-politically.   Its population is composed heavily of law’n order white ethnics who don’t much like black people but do like cops. (Yes, I’m stereotyping generalizing.)  Staten Island is the only borough that regularly votes Republican, and its DA is a Republican.  I’m sorry, but Republicanism and racism do tend to go together these days. I don’t believe this grand jury decision could have occurred anywhere else in NYC.


  1. Daniel December 4, 2014 at 6:50 pm

    One of the main lessons I take from this is that DAs can’t really be trusted to vigorously pursue prosecutions against police. In both this case and the Ferguson one, it’s pretty clear that the prosecutors did not want indictments. Grand jury proceedings are usually very brief, with the grand jury exposed to only those facts most favorable to indictment. In both these cases, the proceedings took a very long time, and included testimony from the officers involved. To me, this suggests that both prosecutors thought they couldn’t get away without convening a grand jury, but because they didn’t want to pursue the cases, they didn’t conduct the proceedings so as to get an indictment. We don’t know exactly what happened in the Garner proceedings, but in the Ferguson ones, the prosecutor’s questions sound indistinguishable from what you’d expect from a defense attorney for Wilson.

    It’s not so surprising. Prosecutors rely on cooperation from police officers–they serve as witnesses, bring cases to them, etc. I’m sure the career of a prosecutor with a reputation for being tough on police would be a difficult one. I don’t know what the solution is–my wife suggested that it might make sense to have a regular procedure whereby police officers suspected of crimes can be tried by special prosecutors, rather than requiring them to be appointed on an ad hoc basis (which never happens). That sounds like as good an idea as any to me.

  2. tonygreco December 5, 2014 at 1:02 am


    I agree completely. And I certainly think that if the grand jury is to continue as a part of our criminal justice system (there are arguments that it shouldn’t), cases involving alleged police criminality should routinely be handled by special prosecutors.

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