Partial Testimony From Garner Grand Jury Is Released, Tells Us Nothing


The grand jury investigating the death of Eric Garner heard from 50 witnesses, 22 of them civilians, as it considered whether to charge NYPD Officer Daniel Pantaleo with a range of crimes including manslaughter.

The grand jury ultimately decided not to indict Pantaleo, a decision that has set off demonstrations across New York City and across the country.

See Also: Protesters Sweep Manhattan After Eric Garner Decision

In Ferguson, Missouri, the grand jury investigating the death of Michael Brown released a trove of testimony after deciding not to indict Darren Wilson, the police officer who fatally shot Brown. But that move was extremely rare. It’s unusual for any information at all to be released about grand jury proceedings, which are confidential by law. But a judge in Staten Island did release a basic outline of the grand jury’s work on Thursday, in response to a petition by Richmond County (Staten Island) District Attorney Daniel Donovan.

The limited details released by the court say only that of the 50 witnesses who testified, 22 were civilians, and the rest were police officers, emergency personnel, and doctors. The testimony they heard was delivered over the course of nine weeks, and 60 exhibits were entered into evidence, including four separate videos of the encounter, medical records, and police training documents.

The sheer amount of testimony presented to the grand jury might be an indication of what result the prosecutor had in mind.

As Bennett Gershman, professor of law at Pace University School of Law, told the Voice on November 26, a prosecutor looking for an indictment will typically present as little evidence as possible. The role of a grand jury is simply to decide whether probable cause exists to believe a crime has been committed, and whether a full trial should be ordered. A prosecutor who wants an indictment, Gershman says, is likely to present just enough evidence to show that there’s a question that needs answering.

See also: Garner’s Grand Jury Documents Will Likely Be Sealed Forever, Unlike Those in the Ferguson Case

With Garner’s death caught on tape in wrenching detail, Gershman, a former prosecutor, says, it could have been an easy task.

“This is a 20-minute case,” Gershman says. “You show a video and you’ve got a charge here.”

Since grand jury testimony is protected by law, it could only be released under court order, but questions remain there, too. While Donovan did apparently ask for some information to be released, his original application remains under seal, so it’s impossible to know what Donovan actually sought to make public.

A press release from Donovan’s office, sent shortly after the grand jury’s decision was announced on December 3, said only that the D.A. had sought “authorization to publicly release specific information in connection with this grand jury investigation.”

Gershman said the release is essentially meaningless without more context, and that the move seemed more like a public-relations flourish than a genuine attempt at transparency.

“What good does it do to tell you that there are 50 witnesses?” Gershman says. While the Ferguson documents showed what many felt was deferential treatment for Wilson, the release in the Garner case offers no such detail. “I would like to know how he [the prosecutor] handled Pantaleo,” Gershman adds. “I would like to know how he instructed the jury. Did he use kid gloves on him, as was the case in Ferguson? I think it’s very likely, but I would just be speculating.”

The New York Times on Thursday offered, through Pantaleo’s attorney, a glimpse of what the officer told the grand jury. Stuart London said his client had never intended to use a chokehold on Garner — a move that, while once widespread and regarded as safe and even humane, has been banned by the NYPD since at least 1993.

London said Pantaleo was attempting only to knock Garner off balance and get him to the ground so that he could be cuffed, and that when he heard Garner saying, “I can’t breathe” — a phrase that has become a rallying cry at demonstrations across the U.S. — he tried immediately to remove himself.

“That’s why [Pantaleo] attempted to get off as quick as he could,” London told the Times. “He thought that once EMT arrived, everything would be OK.”

The account, as the Times and Gershman point out, is completely at odds with what the now-famous video of Garner’s arrest shows.

“You can see those places [in Pantaleo’s recounting of events] where he clearly tried to avoid any suggestion that he engaged in a prohibited chokehold,” Gershman says. “But the video shows nothing like that.”

In 1994, when Anthony Baez died at the hands of an NYPD officer deploying a banned chokehold, a federal judge eventually sent Officer Francis Livoti to prison for seven and a half years. And now that the U.S. Department of Justice has announced that it will pursue a federal investigation in the case, Pantaleo may not be out of the woods just yet.

But in a press release sent Thursday, Donovan seemed to wash his hands of the Garner case, saying he would have no more public statements on the subject.

“I respect the Court’s exercise of its discretion, and will abide by the Court’s Order,” Donovan’s office wrote. “As such, I will have no further comment in connection with the grand jury proceedings relating to the matter of the Investigation into the Death of Eric Garner.”

Read the full court order below.

Garner Court Order