Refusal To Indict Added Another Case To The Shameful List of Incidents That Demonstrate The Failure In America To Provide Equal Justice, Says Legal Aid's Chief Attorney
FRIDAY, DECEMBER 05, 2014

Seymour James, Legal Aid's Attorney-in-Chief, told the New York Law Journal that the refusal to indict "added another case to the shameful list of incidents that demonstrate the failure in America to provide equal justice." The investigation surrounding Garner's death was different from the process that Legal Aid clients faced, he said.

"When a district attorney seeks an indictment against our clients, they present witnesses and ask questions with a plan as to what charges they want the grand jury to consider and they actively try to get the grand jury to vote their way," he said. "The evidence they present is often selected to strengthen their case and insure the case will go forward. Almost always, they get what they want. For our clients, it is as easy as indicting a ham sandwich."

The Association of Legal Aid Attorneys/UAW Local 2325—a union comprised of more than 1,000 Legal Aid Society attorneys—told the New York Law Journal that it joined the "cries of outrage, grief and anger" but was not surprised. "As the primary public defender for New Yorkers, we witness daily the outrageous deference shown to police officers by the prosecutors' offices in cases of fabricated evidence, brutality and disregard of our clients' constitutional rights."




The New York Law Journal
Limited Information Released After Grand Jury Spurns Charges
By Andrew Keshner
December 5, 2014

A state judge has released select information about the secret proceedings leading up to a Staten Island grand jury's controversial refusal to bring criminal charges against Officer Daniel Pantaleo for the chokehold death of Eric Garner.

A day after the grand jury's return of no true bill sparked widespread protests and sharp criticism for the New York Police Department and the Staten Island District Attorney's Office, Acting Staten Island Supreme Court Justice Stephen Rooney revealed that grand jurors heard from 50 witnesses, weighed 60 exhibits, including four videos, and were instructed on legal principles including an officer's use of physical force.

The Garner case—combined with the decision by a grand jury last week not to charge the white officer who shot and killed unarmed black 18-year-old Michael Brown in Ferguson, Mo. and other incidents—stirred a national conversation about race, police training and the grand jury process.

Like Missouri prosecutors before them, the Staten Island District Attorney's Office asked for the release of grand jury information, but did not ask the court to release transcripts or exhibits.

Rooney granted the application "as follows," apparently indicating prosecutors could have been asking for more disclosure.

"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 continued 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," Rooney wrote in Matter of the Application of The District Attorney of Richmond County, 80294/14. "It is from this vantage point that a limited incursion into the sacrosanct principles of grand jury secrecy is deemed necessary to serve overarching public interest."

The Legal Aid Society, which had represented Garner in a number of charged minor offenses prior to his death in July, is filing a motion to unseal the entirety of the grand jury proceedings.

Garner, 43, died after a scuffle that broke out July 17 as officers tried to arrest him for selling untaxed cigarettes on the street.

The last moments of his life were caught on video that showed Pantaleo holding the unarmed Garner in what has been described as chokehold as he repeatedly gasped, "I can't breathe."

Pataleo's lawyer and police union officials argued that the grand jury got it right, saying that the officer used an authorized takedown move—not a banned chokehold—against a man who was resisting arrest. And they said Garner's poor health was the main cause of his death.

To find Pantaleo criminally negligent, the grand jury would have had to determine he knew there was a "substantial risk" that Garner would die.

In the wake of the grand jury decision, federal prosecutors will conduct their own investigation of Garner's death.

Federal civil rights prosecutions in police misconduct cases are centered on 18 U.S.C. §242, which outlaws anyone who "under color of any law ... willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights."

Loretta Lynch, the U.S. Attorney for the Eastern District, nominated as U.S. Attorney General, said in a statement that her office and the Justice Department's Civil Rights Division will conduct the probe.

"The investigation will be fair and thorough, and it will be conducted as expeditiously as possible," she said.

Still, federal civil rights cases against police officers are exceedingly rare.

In the past two decades, only a few such cases have reached trial in New York—most notably the one involving Abner Louima, who was sodomized with a broom handle in a police station in 1997. Several other high-profile cases didn't come together, largely because federal prosecutors must meet a high standard of proof in showing that police deliberately deprived victims of their civil rights through excessive force, said Alan Vinegrad, who handled the Louima case as a federal prosecutor.

Federal intervention "doesn't happen often and it shouldn't happen often," said James Jacobs, a constitutional law professor at New York University Law School. "They should only step in when the local prosecution was a sham."

Activists have claimed that the grand jury investigation of Garner's death was indeed a sham. An amateur video showed Officer Daniel Pantaleo putting Garner in an apparent chokehold. The medical examiner ruled Garner's death a homicide and said the maneuver contributed to the death.

But Pantaleo's attorney, Stuart London, expressed confidence on Thursday that his client won't face federal prosecution.

"There's very specific guidelines that are not met in this case," London said. "This is a regular street encounter. It doesn't fall into the parameters."

In a recent Law Journal column, Christopher Dunn, associate legal director at the New York Civil Liberties Union, said federal criminal prosecutions of police "remain relatively rare." He noted the "paucity of federal civil rights prosecutions against police officers in part reflects the demanding legal standards governing such cases." (NYLJ, Dec. 4).

The New York Police Department is doing an internal investigation that could lead to administrative charges against Pantaleo, who remains on desk duty.

'Cries of Outrage'

On Tuesday, members of the legal community grappled with the decision against indictment and debated the merits of former New York State Chief Judge Sol Wachtler's famous 1985 comment that prosecutors had enough sway over grand jurors to "indict a ham sandwich."

Daniel Alonso, former Manhattan Chief Assistant District Attorney, declined to comment on the Garner case specifically. But when asked about the "ham sandwich" comment, Alonso called it "a cynical view."

"It comes from the fact that virtually every case presented to the grand jury results in indictment" because a lesser burden of proof is needed and because prosecutors choose to present what they deem as legitimate cases to the grand jury.

The Association of Legal Aid Attorneys/UAW Local 2325—a union comprised of more than 1,000 Legal Aid Society attorneys—said it joined the "cries of outrage, grief and anger" but was not surprised. "As the primary public defender for New Yorkers, we witness daily the outrageous deference shown to police officers by the prosecutors' offices in cases of fabricated evidence, brutality and disregard of our clients' constitutional rights."

In his own statement, Seymour James, Legal Aid's attorney-in-chief, said the refusal to indict "added another case to the shameful list of incidents that demonstrate the failure in America to provide equal justice."

The investigation surrounding Garner's death was different from the process that Legal Aid clients faced, he said.

"When a district attorney seeks an indictment against our clients, they present witnesses and ask questions with a plan as to what charges they want the grand jury to consider and they actively try to get the grand jury to vote their way," he said. "The evidence they present is often selected to strengthen their case and insure the case will go forward. Almost always, they get what they want. For our clients, it is as easy as indicting a ham sandwich."

James Culleton of Culleton & Marinaccio, who has represented police officers in shootings such as Amadou Diallo and Sean Bell, said whether police officers were seen as credible witnesses depended on who sat in the grand jury box.

Though he did not think the grand jury did anything wrong in the Garner case, he said he could understand why people questioned the ultimate decision. Still, he said he found it "hard to believe" that prosecutors in Garner's case would "shade" the evidence.

Culleton recalled when Queens prosecutors questioned a client of his in the grand jury proceedings leading up to an indictment in the Bell case. He said the presenting prosecutor "called the case down the middle ... There was no pushing one way or another."

The Diallo and Bell officers were acquitted. Culleton observed that federal standards of willfulness posed high hurdles in police cases that did not result in action on the state level. If prosecutors could not obtain convictions on mindsets of recklessness or negligence, "how can you convict on intentional conduct?"

John Patten has represented officers in shootings like the Diallo case, as well as a police assault on Haitian immigrant Louima. In the Garner case, Patten represented another of the officers who testified before the grand jury.

"My sense was there wasn't a witch hunt going on there," he said, later adding, "in this case, they were right down the middle."

Pantaleo testified before the grand jury and Patten said such testimony was "not unusual." In such a case, when attorneys decide their clients were acting in good faith, and "if [the officer's] quiet about it all, there's no indication where his head was."