No One Knows Why the Eric Garner Grand Jury Is Taking So Long

Demonstrators this summer at a protest march for Eric Garner
Demonstrators this summer at a protest march for Eric Garner
Photo credit: gerard_flynn via Compfight cc

Reaction to Michael Brown's shooting in Ferguson, Missouri, on August 9 was immediate, and not in the way journalists usually use that word.

Reacting to news that the 18-year-old had been shot to death by a police officer in a residential neighborhood, in broad daylight, a crowd gathered literally within a few minutes.

The attention has hardly abated. Protests continue daily. It's now more than three months later, and the grand jury tasked with deciding whether or not to charge Police Officer Darren Wilson could release its decision as early as Friday.

After months of protests, dozens of arrests -- including at least 10 journalists -- occasional violence, and a widely criticized ham-handedness on the part of the Ferguson Police Department, the authorities are preparing for the worst. A state of emergency was declared earlier this week, a move that allows the Missouri National Guard to be called up to help quell any problems that might emerge. Activists are arriving in the area to plan their own response, and media coverage is again beginning to swell.

But New York experienced its own high-profile police-involved killing this summer, when Eric Garner died during an encounter with NYPD officers in Staten Island. It happened in July -- less than a month before Brown's death -- after Officer Daniel Pantaleo used an apparent chokehold to subdue Garner during an arrest for a petty offense, an encounter that was caught on film.

A medical examiner's report ruled Garner's death a homicide, and a grand jury was empaneled in September. Two months on, no charges have been announced, and Jonathan Moore, an attorney for Garner's family, says he's surprised the deliberations have lasted this long.

See Also: 'I Was Choked by the NYPD': New York's Chokehold Problem Isn't Going Away

He's surprised, Moore says, because grand juries don't decide on guilt, and the burden of proof for indictment is quite low. New York's Grand Juror's Handbook, a primer distributed by the court system, explains that the grand jury decides only "whether there is legally sufficient evidence of a crime and whether there is reasonable cause to believe that the accused person committed that crime."

"You have a very prompt decision from the medical examiner; you have the videotape. I mean, you hear him say, 'I can't breathe, I can't breathe.' " Moore says. "For the life of me, I can't figure out why they haven't decided to go ahead."

There's a saying, Moore points out, that "you can get a grand jury to indict a ham sandwich," because the burden of proof is nowhere near as rigorous as in an actual trial. In his view, the evidence that's already out there -- evidence the public has already seen -- should be enough to take the case to trial. And the fact that it's taken this long might suggest that prosecutors are laying out as much evidence as they possibly can, a strategy that would be unusual; typically, Moore says, prosecutors offer only enough to get to trial, and not enough to muddy the waters.

Garner's death never prompted the kind of sustained demonstrations that have been happening in Ferguson. But it was still a lightning rod for protesters and anti-police activists. A protest march in Staten Island in August drew tens of thousands of participants. The Civilian Complaint Review Board, tasked with reviewing complaints against NYPD officers, conducted a study on the department's use of chokeholds in response to Garner's death, finding widespread problems. And last week, a City Council member introduced legislation that would make chokeholds -- which are banned by departmental policy -- formally illegal.

Whatever evidence the grand jury hears is likely to remain permanently out of view. So Moore thinks it would be appropriate to take the case to trial in the interest of transparency, if nothing else.

"This is obviously a case of some public interest," Moore says, "and it shouldn't be decided in a secret proceeding by the grand jury."

Send news tips to jcampbell@villagevoice.com
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