Every time I have to write one of these pieces to explain why justice seems to elude our community yet another time, I have fewer words to draw from. I can always breakdown the legal side of things, but simply explaining the technical aspects of a system that has repeatedly failed us seems woefully insufficient in the moment. There is something about the human eye test that has made me and so many others like me wonder whether we are being gaslit into believing that what everyone saw on that video wasn’t a chokehold and wasn’t a crime.
We know what we saw. And, because of it, we cannot breathe.
From a legal perspective, what happened? Before touching the evidence, it is important to consider the demographic makeup of Staten Island residents and how that might have impacted the outcome of this presentation. With a strong contingent of civil service workers—specifically FDNY, NYPD, and NYC Sanitation—and civil service families, it is possible that the “blue wall of silence” which often keeps cops from speaking out against wrongdoing they observe from other cops permeated the grand jury. The grand jury does not require a unanimous decision from jurors, but simply a majority. For those who may have sipped the kool-aid of the criminalization of black men in America and who believe the stereotypical narrative of Garner being a “big black man”, it is not beyond the realm of reason that they could have seen Panteleo’s response to the perceived threat as justified.
But the medical examiner ruled it a homicide. And, we saw the VIDEO. True and correct. The medical examiner’s determination of Garner’s death as a homicide does not itself imply criminal wrongdoing. What it means is that Garner was killed and did not die of his own hands. Whether someone was criminally liable is a different question altogether and one that this grand jury was convened to reach a determination about. To that point, it is presently unknown whether the Richmond County (Staten Island) DA’s office actually presented the video to the grand jury and, if so, what portion(s) of the video were presented and in what manner. Because the grand jury is a secret proceeding, it is highly unlikely we will ever find out definitively. Unlike Missouri and the grand jury presentation against Darren Wilson, New York has laws against the release of information related to grand jury proceedings absent a judicial order granted only after a showing of compelling cause.
Is it that hard to get an indictment? Usually it is not. The standard is essentially “more likely than not” that probable cause exists to show that a crime occurred. That is generally not a high standard to reach, and in terms of criminal burdens of proof, it is the lowest on the ladder (the highest being “beyond a reasonable doubt” which is the standard for a conviction at trial). It does, however, appear that for as easy as it is to indict a ham sandwich, the absolute opposite holds true for police officers. Part of this has to do with the amount of leeway granted to police in the execution of their duties. Many grand jurors will err on the side of trusting the judgment of an officer if that officer testifies in the grand jury (yes, Pantaleo testified) that they believed their life was in imminent danger.
Another failure to indict. Another federal investigation. Almost right on cue, in the hours following the news out of New York, Attorney General Eric Holder announced a federal probe was being launched into the case. This is on top of the ongoing internal NYPD investigation into the circumstances surrounding Garner’s death. Still, for as much as the feds involvement represents an objective and impartial eye looking at the evidence, does it really mean much?
Because of double jeopardy, the homicide charges that Richmond County District Attorney Dan Donovan put in front of the Staten Island grand jury will likely not be available to any federal prosecutors looking to take the case. The standard needed to bring federal civil rights charges against Daniel Panteleo is so high that it makes an indictment in that vein a very remote possibility. Beyond this, however, the cry of a federal investigation after a failure to indict or convict is a movie we’ve seen before in numerous scenarios and it never seems to result in further action against the killer. At this point, it almost feels like an attempt to pacify and keep the public response from being too violent. Zimmerman, Dunn, Wilson, and now Pantaleo. All killed unarmed men of color and, with the exception of Dunn, they will all spend less time in jail than many of the peaceful protestors who have cried out against an imbalanced criminal justice system. Something about this seems obviously and inherently unfair.
If there is any bright spot, and we are indeed desparate for any speckle as we all search for answers, New York Mayor Bill DeBlasio’s response to the announcement reflected an appropriate amount of empathy and seemed to show that he was in tune with the pulse of many of his constituents who were shocked and disappointed in the wake of the decision. Despite the obvious political constraints on his office, DeBlasio’s remarks went just shy of saying that he disagreed with the decision, and while he did not say so the typical rhetoric of “respecting the system and its decision” was generally absent from his speech. This was in ironic contrast to President Obama’s underwhelming remarks in response to the #Ferguson announcement of just over a week ago.
The old adage teaches us that justice is blind. In considering what we all witnessed with our own eyes on that video, to reach that decision she would have to be. I’m just hoping that she eventually stumbles her way to our community sometime soon
We’re still waiting. Hands up. We’re still waiting. And, we can’t breathe.
Charles F. Coleman Jr. is a civil rights attorney and legal analyst. He is also a former Kings County (Brooklyn) NY prosecutor. Follow him on Twitter @CFColemanJr.