The case of New York Police Department officer Daniel Pantaleo wasn’t supposed to be like Ferguson. There was a video showing how a simple stop for selling untaxed cigarettes turned into a chokehold — a move prohibited by the NYPD. The medical examiner ruled the incident a homicide. Eric Garner repeatedly shouted “I can’t breathe” just before he died.
There are many things we don’t yet know about the Staten Island grand jury proceeding, and we may never know. Prosecutor Daniel Donovan said Wednesday that New York law does not permit the same transparency surrounding grand jury proceedings as in Missouri, and that “disclosure of anything further may be a violation of New York law” unless Donovan is granted a special exception by court order. He said he applied for such an exception Wednesday. So we don’t know if Donovan appeared to advocate for the defendant in the way that McCulloch seemed to do.
But some things we do know suggest that the Staten Island grand jury, like the Ferguson one, was set up in ways that may have favored Wilson.
For one thing, jurors in these two cases heard evidence for more than two months, while the typical grand jury lasts a few days or less. And as Donovan himself explained in his statement Wednesday, the scope of that evidence was broad. He said the jury heard from “all witnesses with any material evidence to offer, as well as expert witnesses, and to consider documentary and photographic evidence, in order to ensure that a thorough, just and fair investigation was accomplished.” A thorough presentation is not unheard of. As defense lawyer and one-time prosecutor Asit Panwala explained to ThinkProgress, “grand jury is a thing that most people don’t really understand in the sense that the prosecutor is not supposed to be advocating one way or another.”
In fact, law professor Kaimipono Wenger argued we should have more “Ferguson-style grand juries.” If we did, “it would become physically impossible to incarcerate a million African-Americans.”
But we don’t. Prosecutors can often present 40 indictments in a single day (albeit perhaps on lesser charges than homicide). That’s because the prosecutor’s burden is merely to establish that probable cause exists such that jurors can decide whether to indict — not to try the case. As Justice Antonin Scalia said in a 1992 opinion describing grand juries, “It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor.”
For another thing, in both of these cases, the officers themselves testified for several hours, allowing them the uncommon opportunity to present their defense during a proceeding that is typically a vehicle simply for prosecutors to tell their side. Again, Justice Scalia: “neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.”
Lastly, both of these cases were presented by local prosecutors, who work regularly with the same police departments that employed Wilson and Pantaleo. There is an inherent bias in this scenario. Prosecutors are law enforcers, like police. In most every case they take, they rely on police to provide them with cases, make arrests, present evidence, and even testify at trial. If prosecutors can’t work with cops, they can’t convict anybody. And they don’t want to alienate those very same people, particularly because they often maintain personal relationships. As a result, when faced with a case charging the police, “prosecutors face enormous pressure from both police and fellow prosecutors not to go forward with such cases,” explains law professor David A. Harris in a law review article on police accountability.
“Pretty much every time there’s a high profile police killing of civilians there are calls for someone other than the district attorney to be handling a possible prosecution,” said the New York Civil Liberty Union’s Christopher Dunn. “And those of course are grounded in concerns about district attorneys working too closely with the police department to prosecute these cases effectively. But notwithstanding those regular calls, we continue to have a system here where it is a district attorney almost always handles these cases.”
In Missouri, McCulloch arguably put this bias on full display when he delivered lengthy and widely criticized remarks in which he presented extensive evidence in defense of Wilson and called media coverage of the case his greatest obstacle. Donovan is not permitted by the law to provide any similar remarks. But in his statement issued Wednesday, he seemingly anticipated this criticism of the prosecutor’s office by stressing just how little influence he had over the case. He said New York prosecutors don’t “attempt to influence” the grand jury’s decision, explaining that they do not make opening statements, closing statements, or arguments.
They do, however, decide what evidence to present and how to present it. And in this case they presented extensive evidence. Donovan had an explanation for this, too. He said that while some grand juries are required to make a decision within six days, “investigative grand juries” are given more time. But Jason Leventhal, a former district attorney who now represents clients suing the NYPD, told the Christian Science Monitor that the “length of the grand jury proceedings has given me pause,” noting a similar strategy in Ferguson.
These factors may not have been as definitive as the evidence presented, or the make-up of the grand jury, or even institutional biases. Staten Island has a high concentration of police officer residents. And the precinct where Eric Garner was killed has many of the most-sued police officers in New York.
One key difference between the two cases is that the Ferguson jury was faced with reconciling a range of eyewitness testimony, whereas Staten Island jurors were able to view the incident for themselves on video. But they still heard months of testimony. And they still didn’t indict.