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Even legal experts are astounded by the grand jury's decision not to indict a New York City police officer for the killing of Eric Garner.
Most of us don't know what went on in the courtroom where the grand jury deliberated whether or not to indict officer Daniel Pantaleo for the chokehold-induced death of Eric Garner. Still, the decision comes as a surprise to many who thought that the evidence overwhelmingly called for indictment. Given that the New York City Police Department has a policy against chokeholds, that a video exists clearly showing Pantaleo violating that policy, and that a coroner's report ruled Garner's death a homicide, the jury's decision doesn't seem to make sense.
"I am baffled and at a loss to understand this," says Susan Abraham, law professor at New York Law School. "This doesn’t have the conflicting eyewitness testimony they had in Ferguson." This also was not an instance where an officer was under threat, she adds: The facts are that Garner didn't resist, he clearly said he couldn't breathe when Pantaleo and four other officers restrained him, and he didn't reach for a weapon.
But the standard of proof required for a grand jury decision doesn't even require that much evidence. In fact, it's "the lowest standard of proof required in our system of justice," explains James Cohen, law professor at Fordham University and an expert in criminal procedure. The evidence in this case (and all grand jury trials) only had to meet the "probable cause" requirement—to prove that there were sufficient facts to prove that the accused may have committed a crime.
The grand jury also had options to choose from on what crime may have been committed. "The choice [of crime] that the grand jury had [to indict for] wasn't just murder or nothing," Cohen says. The jury could have been asked to consider charges of reckless or negligent homicide or manslaughter.
"There was more than enough evidence" to decide that there was probable cause that any of those crimes might have been committed, Cohen says. Still, the jury didn't indict. Why they didn't comes down to the jurors—and, more importantly, the prosecutor.
There seems to be different standard for police defendants, says Abraham; jurors are reluctant to indict them.
"Grand jurors, just like regular jurors, have enormous respect for police officers ... for the fact that they protect at least parts of the community from other people committing crime," Cohen adds. The fact that the jurors were from Staten Island (because the alleged crime was committed there), considered to be the most conservative borough in New York, could have also have influenced a decision not to indict an officer based in the community. (Although, conservatives have thus far been just as appalled by this decision as liberals).
The last possibility Cohen and Abraham point to is what some say was a reason the jury didn't indict in Ferguson, either: The prosecutor may have decided that he didn't want to obtain an indictment.
"The prosecutor really controls this," Cohen says. "whether he is explicit about it or not."
Cohen says that the old expression, "if the prosecutor wanted, the grand jury would indict a ham sandwich," is basically true. In this case, the prosecutor may not have wanted to sever his ties with the New York Police Department, whose cooperation is crucial to the work of his office, he says.
"Prosecutors really work hand-in-hand with the police," says Cohen. "The prosecutor is a very interested party in any case involving some claimed misconduct by police officers.
Going forward, the Garner family may file a civil suit against the police department for wrongful death, and they could be compensated generously. But accountability for Garner's death is still elusive. Officer Pantaleo might faceadministrative repercussions; at most, he might be fired.
The overarching questions from protestors and pundits remain: why don't police officers get punished for misconduct? Why is the justice system not working?
"In this society, it seems okay for white cops to kill black people, and we don't impose any penalty on them," Cohen says. "That's more than a little shocking."