I am sorry for the length of this post, but many people have asked me, both privately and on FB, why Officer Pantaleo was not indicted for homicide. Many people believe the District Attorney of Staten Island presented the case to the Grand Jury with a slant toward a no true bill (meaning no charges...no indictment). I honestly do not think so, because I believe the GJ had no other choice and reached the correct decision. So lets analyze the situation. Firstly, a Grand Jury is not a jury that finds guilt or innocence. A Grand Jury is a puppet for the District Attorney and its only function is to ascertain whether there is sufficient evidence to bring charges against a Defendant. There are 23 citizens who are summonsed by the District Attorneys Office to sit and hear cases. They usually sit for one month. Cases are presented to theses 23 people, usually in piecemeal because they are presented along with other cases, over the course of several days. 12 people of the 23 seated must vote that there is enough evidence to bring whatever charges they may seek. The District Attorney presents the evidence, and the Defense has an opportunity to present evidence if they so desire. There is no cross examination of the prosecutions witnesses allowed, although the District Attorney may cross examine defense witnesses. The system is heavily weighed against the defendant and most times the Grand Juries vote to bring charges against the Defendant. In this case the Defendant was Officer Pantaleo. If the Grand Jury decides to bring charges against the Defendant they vote an indictment or what is commonly called a true bill. If they vote not to bring charges it is called a no true bill. Grand Jury proceedings are secret and no one is allowed in the room except the District Attorney, the Grand Jurors and the Court Reporter. If the Defendant testifies, he is allowed in the room only during his testimony, as is his attorney, but the attorney is not allowed to ask any questions, object or say anything, but he may take notes. No one may know whether the Grand Jury voted to indict or not until a Judge signs a hand up and only then are the Grand Juries findings made public. No one, not even the Defendant, may see any transcripts of the Grand Jury testimony, until that witness testifies at a hearing or trial. They remain secretive until then. A judge, however, reads the Grand Jury minutes and decides whether or not the evidence elicited at the GJ was legally sufficient to sustain an indictment, which 99% of the time, it is so found. So now, with that background, lets look at what the Grand Jurys possible homicide charges were. The Grand Jury here could have indicted for Murder, First Degree, Murder, Second Degree, Manslaughter, First Degree, Manslaughter, Second Degree, or Criminally Negligent Homicide, the worst being Murder 1 which carries a possible life sentence, and least of which would be Criminally Negligent Homicide which carries a maximum of 4 years. Murder, First Degree requires intent under Penal Law Section 125.27. Clearly, no reasonable person would ever argue that the officer intended to kill Eric Garner. Then there is Depraved Indifference under Murder 2 under Penal Law Section 125.25, and again, no reasonable person would argue that putting someone in a choke hold, evidences a depraved indifference to human life and constitutes conduct which creates a grave risk of death. You can argue it does if you want, but no reasonable legal theory of such a position would ever be upheld. Then there is Manslaughter first under Penal Law Sections 125.20, which again, no reasonable person would ever find intent under these facts. Under Second Degree Manslaughter, Penal Law Section 125.15., recklessness is again required and again you dont have the kind of legal recklessness necessary to sustain manslaughter two. The only possible homicide charge here that could be reasonably argued would be criminally negligent homicide under Section 125.10, which requires not only negligence or even gross negligence but rather requires CRIMINAL NEGLIGENCE, which is very difficult to prove. There would have to be proof that the officer not only perceived the risk in such a way that he could foresee the death of Eric Garner when he placed him in the choke hold but there would have to be proof that even though the officer could foresee his death, he still engaged in the conduct, thereby causing the death of Eric Garner. Regardless of how brutal a choke hold you may think the officer utilized, can it reasonably be legally argued that the officer was (1) reasonably aware of the risk of Eric Garners possible death in placing him in a choke hold, AND (2) that the officer could reasonably foresee that Eric Garner would die if he placed him in the choke hold, AND further that even tho he perceived the risk and foresaw the death, that the office ignored the risk and engaged in the conduct, thereby causing the death of Eric Garner. Does anyone really believe there was probable cause to believe Officer Pantaleo was guilty of all of those elements required to bring criminally negligent homicide charges against him? And if you do, does anyone really think any of those charges could have been proven beyond a reasonable doubt at trial? Anger and Outrage does not a criminal conviction make. Regardless of your outrage or frustration, your anger or angst, these are not reasons to bring criminal charges against anyone, including police. Now, add to all of that the fact that Section 35.05 of the Penal Law says that conduct which is otherwise criminal is JUSTIFIED AND NOT CRIMINAL if the conduct is authorized by law or performed by a public servant in the reasonable exercise of his official powers, duties or functions. The Grand Jury was charged, as a matter of law, in much greater detail with all the above. Their findings of a no true bill were based on sound law and theory. Before we condemn them, we need to educate ourselves with ALL of the facts of the case and ALL of the law of our land. Regardless of some peoples outrage and anger, the Grand Jury did the right thing. On another note, I think we can all be proud New Yorkers in knowing that all of the protests in our city, unlike other cities, were peaceful. There was no looting, no violence and no destruction of property. New Yorkers are to be commended for their civility.
Posted on: Thu, 04 Dec 2014 23:03:25 +0000
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