The Widdershins

Not so grand juries…

Posted on: December 5, 2014

Good afternoon Widdershins. For those of you tuning in for some lighter fare on this fine Friday, I’ll have to beg your patience until tomorrow when I promise to post something more “weekendier”.

From years teaching leadership, next to family, the one universal value most commonly held by Americans is justice. The eric garner takedownslippery slide toward glossing over the killing of Eric Garner has dug a hole in the pit of my stomach as I’m sure it has yours. The window dressing paraded out this week in Staten Island was anything but justice for Eric Garner.

For me the tragedy goes beyond Mr. Garner’s death, but that alone stands sufficient for the understandable outpouring of emotion. What troubles me so deeply is the thinly veiled exercise in which the prosecutor engaged for his personal political future and special privilege. I need to exorcise my indignation and your forbearance is, as always, appreciated.

Last July 17th, Officer Daniel Pantaleo did not awaken with the intent to kill. For that matter, neither did Officer Darren Wilson in Ferguson, Missouri. There are other similarities.

Both are twenty-something males most likely testosterone-driven, hero-wannabes, who under the color of the government sanction are imbued with the right to carry firearms and charged with enforcing the law. Enforcing the law does not come with free spaces when they skirt the outer reaches of justice. Both the Brown and Garner instances contorted legal procedures into free spaces of sanctioned lawlessness through abuse of discretion unavailable to average citizens not a part of the “system”.

For instance, and I’m quoting here from a New York Times article about the events leading up to Garner‘s death:

The officers involved, part of a plainclothes unit, suspected Mr. Garner of selling loose cigarettes on the street near the Staten Island Ferry Terminal, a complaint among local business owners. (Emphasis my own.)

Officer Pantaleo and his pride of fellow officers, “suspected” Mr. Garner had committed the piddling crime of selling loosies. Technically, the incident was based upon a “reasonable suspicion” of a violation of the statute forbidding the sale of untaxed cigarettes. Reasonable suspicion is probable cause. So more than anything else, probable cause was the genesis in this turn of events resulting in Mr. Garner’s death. Probable cause as determined by this pack of police officers.

garner familyHere’s the great irony — probable cause is the exact same legal standard by which the grand jurors were asked if a crime had been committed in Mr. Garner’s death. This can’t be stressed enough — was it sufficient “probable cause” to place a black Eric Garner on the road to execution, but insufficient “probable cause” to watch on videotape, what amounts to, a predatory pride of officers rendering Mr. Garner lifeless.

The grand jury question was not, “Was there a crime committed,” but rather, “is there a ‘reasonable suspicion’ a crime was committed?” There was no pronouncement of guilt or innocence, no standard of proof beyond a reasonable doubt, no determination of fact, no certainty needed — there was only the question of whether there was probable cause to believe a crime could have been committed in order to issue an indictment in order to proceed to trial.

And what is confounding is that there was a panoply of alternatives ranging from homicide to the recklessness of negligence to the trivial misdemeanor of choking for the indictment. To subvert the no-brainer of reporting out an indictment, Dan Donovan, the prosecutor, went so far as to grant prosecutorial immunity to the other officers involved.

This grant of immunity was a closely guarded secret only revealed two days before the announcement of the non-indictment. Why? Because the grant of the whitewashing immunity was a not-too-subtle “tell” that the fix was in. There was no need for the testimony of the other officers because the whole incident was on videotape. What’s more — once the coroner ruled Mr. Garner’s death a homicide due to choking and chest compression — the other officers where just as culpable as Officer Pantaleo.

Unable to whitewash Pantaleo, an officer formerly charged with strip-searching two African-American men in public as well as a second, still pending, civil rights charge, Dan Donovan took the next best course, he prosecutorially exonerated the other officers who played roles in Mr. Garner’s death. Exonerated the officers who stood by for 6 minutes and 49 seconds without lifting a hand to aid Garner as he died on the sidewalk before them.

Without an exhaustive review of what a grand jury is, I’ll share with you what it isn’t. There is no “truth” from a grand jury because truth is only the legal pronouncement of facts that have been the subject of cross-examination in a trial. There is no real evidence in a grand jury because the exhibits are not subject to rulings by a judge based upon the Rules of Evidence. There is no guilt or innocence from a grand jury because that role is in the sole province of the trial court and a jury. The fidelity of a grand jury is inexorably intertwined with that of the prosecutor.

Without getting too philosophical, the social contract upon which modern society operates requires us to voluntarily cede I don't want to be nextpersonal liberty in order to securely live in a world governed by laws. Without our consent to be governed eventually there would be less freedom and more ethical degradation. Consequently in such a world, our collective future is less viable and dimmer when we remain silent about things that matter and contravene the social contract.

The life of Eric Garner matters as do the lives of similarly situated people of color and economic status. No matter what the self-serving Donovans or the McCullochs do in terms of shorting justice through their prosecutorial machinations, as long as people who care are moved to the streets, the injustice will not be forgotten.

This is an open thread.


15 Responses to "Not so grand juries…"

there was only the question of whether there was probable cause to believe a crime could have been committed in order to issue an indictment in order to proceed to trial.

That’s what has me so terribly confused in this entire thing. Yes, there was probably cause to believe a crime *could* have been committed. (in my opinion). To maybe put it a little more crudely, go ahead and indict and let ’em fight it out in a trial. To me, the cops already had the guy down. After he was subdued, I doubt the would have offered any resistance if they had gotten off of him to let him up.

Where the hell is everybody? Helllooooooo!!!!

Fredster, to place an even finer point on probable cause, in some criminal procedure cases, among other things allowable in the overall probable cause determination is “intuition” — meaning after a long career in policing, police officers are allowed to say in probable cause hearings, “they had a feeling.”

In this case, there wasn’t any question Garner was choked in reckless disregard for his well-being and safety. He ended up dead. There are the elements for an indictment.

According to some press reports this evening, Donovan, the prosecutor only submitted two higher crimes to the grand jury for indictment. What this means is that he wanted to make sure there was no indictment by withholding the lesser crimes from submission.

Unless there is some movement on the more problematic federal charges, the only way to remedy this miscarriage of justice is at the ballot box, but given that every fifth home in Staten Island has some connection with the police department, I wouldn’t hold my breath.

Prolix said: Garner was choked in reckless disregard for his well-being and safety. He ended up dead. There are the elements for an indictment.


@4: every fifth home in Staten Island has some connection with the police department

Oh good grief! Like that movie with Stallone set Jersey across from NYC. I think it was Copland or something.

Staten Island is really conservative which is sorta logically consistent since it is the southern-most borough.

Michael Grimm the Congress critter who is under indictment on 20 counts and was re-elected is from Staten Island. Grimm is the one who threatened to throw the reporter off the rotunda mezzanine in the Capitol after he broke him in half like a boy. I don’t even know what that means.

@7: It means that he is a Neanderthal with poor social skills and even worse impulse control.

@7: I had forgotten about the Brother Grimm. And chat is right about him.

I’m watching Oregon destroy Arizona (poor Rich Rod). This looks like the team that will probably play Bama and I hope, beat them.

Wow! Mr. Buffett of Omaha has decided to gift the Ready for Hillary group with a check for $25k, the most any individual can donate under the committee’s self-imposed cap.

I couldn’t get embed the link so it would open in a new tab. You’ll have to rt. or lft click it to get it to do that.

Excellent post as usual. I am shocked by the facts @ #4, the crap the prosecutor pulled and the amount of police connection on Staten Island.

i remember when you never saw a body on tv or in newspapers, it was considered wrong to show them, disrespectful and indecent. Now we are bombarded with video of men being killed by police brutality. Which brings me to a question:

Did anyone try to resuscitate the poor man? Did any of the people watching or filming say something, or try or offer to do cpr? Did anyone talk about it? The guy was really left lying there, being filmed, for 7 minutes? Jesus Christ. I am sickened.

Did any of the people watching or filming say something, or try or offer to do cpr

Nah. The ones who were filming with their camera-phones were concentrating on getting the best angles, etc. for the clip that they could then sell to the network that would pay them the most.

Oh my…my head is about to fall over onto the keyboard. I need to call it a night. G’nite/morning! 😉

Glad you are getting some Zzzz’s!

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