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Sparking protests in several cities, a NYC grand jury declined to indict a police officer in the death of Eric Garner, who was held in an apparent chokehold. The decision fueled protests already being held due to the situation in Ferguson.
Eric Garner, pictured in a choke hold, died while being arrested by police in Staten Island.(Photo: New York Daily News, New York Daily News via Getty Images)
A New York City police officer's intentions at the moment he used a choke hold to arrest an unarmed black man weighed heavily in a Staten Island grand jury's decision not to indict the officer for the man's death, legal experts say.
"Intent. It's everything," former New York City prosecutor Zachary Johnson said. "In a case like this, there's just the fact of a homicide — a man was killed by another man. Not all homicide is illegal."
The decision not to indict officer Daniel Pantaleo, 29, for the death of Eric Garner, 43, a horticulturist at the city parks department and father of six, renewed nationwide protests against alleged police mistreatment of black citizens. They ignited after a grand jury in St. Louis declined to indict a Ferguson, Mo., police officer last week in the death of Michael Brown, 18, another unarmed black man.
The case against Pantaleo hinged on an autopsy report that ruled Garner's death a homicide, attributed to the choke hold in combination with Garner's obesity and asthma, and a videotape that captured the July 17 arrest. Pantaleo, who testified before the grand jury in November, has said he did not know of Garner's medical issues and did not intend to hurt him. Garner died at a hospital after Pantaleo and another officer tried to arrest him for allegedly selling untaxed cigarettes in the Thompkinsville area of Staten Island.
Detective investigators from Richmond County District Attorney Daniel Donovan's office conducted a four-month probe. The court convened a special grand jury of 23 citizens on Sept. 29 to focus solely on Garner's case, Donovan said in a statement Wednesday. Donovan said he assigned eight prosecutors to the case.
Grand jury proceedings in New York are secret, unlike Missouri where the St. Louis County prosecuting attorney made public hundreds of papers of transcripts and other documents from the grand jury proceedings in the Ferguson case. On Thursday, a New York judge granted Donovan's request to disclose limited information about the grand jury's proceeding, citing a need to maintain public trust in the criminal justice system.
The grand jury, which sat for nine weeks, heard from 50 witnesses, including 22 civilians who witnessed some part of the incident, the court order said. The remaining witnesses included police officers, emergency medical personnel and doctors, the order said. Grand jurors also saw four videos, medical records, photographs of the scene, and information about police training and policies, the order said.
"The Grand Jury was instructed on relevant principles of law," the order said, including laws "regarding a police officer's use of physical force in making an arrest." The court did not disclose which charges the grand jury considered.
A prosecutor would have presented a grand jury with a range of possible charges ranging from murder to manslaughter, legal experts say. A grand jury need find only probable cause to indict. But almost every option would require the grand jury to consider the officer's intent, said former federal prosecutor Laurie Levenson, a professor at Loyola Law School in Los Angeles.
"Mistakes by police officers get them fired. It's only willful or harmful intent that gets them charged," Levenson said. "The big issue here is not so much what happened. The big issue is what was going on in the officer's mind."
Johnson, now a criminal defense attorney in private practice in Manhattan, said the likely charges under consideration would have ranged from criminally negligent homicide to the more serious charge of manslaughter in the first degree, which carries a minimum five-year prison term.
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To charge a defendant with first-degree manslaughter, a grand jury must find probable cause that the officer intended to cause serious physical injury, Johnson said. Second degree manslaughter, a lesser charge, requires a finding that the death or injury was due to recklessness, in which a defendant acted with conscious disregard of substantial and unjustifiable risk. The law allows police officers to use reasonable force when arresting someone, he said.
"When it comes to criminal law, almost every criminal charge has an intent element," Johnson said. "If you can't prove that mental state, that guilty mind, that mens rea, as they call it in Latin, then you don't have a criminal case."
It's unlikely prosecutors would have asked a grand jury to consider a murder charge, Johnson said.
"Murder in the second degree is intentional killing," Johnson said. "A lot of people throw the word 'murder' around, but the officer would have had to have intended to kill him."
Had a grand jury charged Pantaleo, Levenson said, a prosecutor would face a daunting challenge to get a conviction. Prosecutors would need to find additional evidence beyond the autopsy and video that showed the officer had a history of bad behavior, such as excessive force or filing false reports, or had lied or tried to cover up the incident, she said.
"Things that look terrible on video don't translate into criminal indictments and they certainly don't translate to criminal convictions," she said. "It's got to be a situation where something other than the actual event shows that this officer intended to cross the line."
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