The protests in New York City and across the nation over the decision by a grand jury not to issue an indictment in the death of Eric Garner follow at least in part from the incongruity between that conclusion and images of Garner’s arrest.
In video that in its varied forms has roughly 6.3 million views on YouTube, Garner tells police officers that he cannot breathe while Officer Daniel Pantaleo collars him. Whether it was a chokehold or, as Pantaleo contends, a takedown maneuver, the hold caused Garner’s death, according to the city’s medical examiner.
The calls for justice also follow, it seems, from the Garner grand jury’s decision and what we know about grand juries generally. That grand juries indict easily. That they do whatever the district attorney tells them to do. That a grand jury could “indict a ham sandwich,” as Sol Wachtler, the former chief judge of New York State, put it nearly 30 years ago.
Thus, the decision by the Garner grand jury not to indict Pantaleo mystifies many of those who have viewed the videos. By a margin of nearly three to one, Americans say the officer should have faced charges, according to a USA Today/Pew Research Center poll released Wednesday.
Of course, the American people don’t get a vote inside the grand jury room.
Still, the decision by the Garner grand jury raises the question of what legal standard guides grand jurors when deciding whether the evidence before them warrants an indictment.
Under New York law, a grand jury may indict a person when the evidence “is legally sufficient” to establish that the person committed the offense and provides reasonable cause to think that the person committed the crime.
In the Garner case, prosecutors instructed the grand jury about the law that governs a police officer’s using physical force when arresting someone. According to that law:
A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody, or in self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of physical force.
We know that grand jurors received this instruction thanks to an order published recently by Acting Judge Stephen Rooney of the trial court that oversaw the Garner grand jury. The grand jurors heard from a total of 50 witnesses and reviewed 60 exhibits, including medical records, records regarding police procedures and photographs of the scene.
What we don’t know – because prosecutors appear not to have asked the court to release transcripts from the Garner grand jury’s deliberations – is what other principles of law the grand jury was instructed on.
For example, we don’t know whether prosecutors instructed grand jurors about manslaughter in the second degree, which arises when someone recklessly causes the death of another person. For purposes of the law, a person acts recklessly when he consciously disregards a substantial and unjustifiable risk of death.
We also don’t know whether grand jurors received instruction on the legal standard for criminally negligent homicide, which arises when a defendant should have been aware of a substantial and unjustifiable risk of death.
The difference between the offenses lies in the defendant’s mental state.
If the grand jury received either or both of those instructions, we don’t know whether or to what extent jurors found the evidence to be legally insufficient, based on their decision not to indict.
By law, grand juries operate in secret. Among the reasons: the law aims to protect the reputations of people who may be accused of crimes but not indicted or convicted.
The Garner case – in which the officer’s identity is clear and many of the facts have been reported widely – compelled the court to order disclosure. As Rooney noted:
Somewhat uniquely in this matter, the maintenance of trust in our criminal justice system lies at the heart of these proceedings, with implications affecting the continuing vitality of our core beliefs in fairness, and impartiality, at a crucial moment in the nation’s history, where public confidence in the even-handed application of these core values among a diverse citizenry is being questioned. It is from this vantage point that a limited incursion into the sacrosanct principle of grand jury secrecy is deemed necessary to serve overarching public interest.
The Legal Aid Society, the New York Civil Liberties Union and others are asking Rooney to unseal the grand jury proceedings completely. “Only with substantially more information about the facts and evidence it considered, and the legal instructions it received, can the public begin to understand the grand jury’s decision,” Arthur Eisenberg and Daniel Cohen of the New York Civil Liberties Union wrote in court papers filed Wednesday.
One hopes Rooney grants the requests. Until we see more of the record, we cannot know fully what transpired over the course of the nine weeks the grand jury sat. Americans may need a conversation about race relations but we also need to know that justice was done in the case of Eric Garner.