Prosecutors have total control over grand juries — and the common joke in the legal profession is prosecutors could get a grand jury to indict a ham sandwich. So when people ask why there weren't charges filed against the New York City cop who killed Eric Garner by putting the unarmed 43-year-old black man in a deadly chokehold, one possible response is that the lead prosecutor — now-Rep. Dan Donovan (R-NY) — simply didn't want charges.
In an in-depth look at Garner's death, the New York Times's Al Baker, J. David Goodman, and Benjamin Mueller provide new details about the case, which show that prosecutors didn't aggressively pursue charges. The grand jury documents and proceedings are still being kept secret, as is typical for grand juries. But here's how Taisha Allen, who witnessed Garner's death and testified in front of the grand jury, retold the experience to the Times:
Several times during her testimony, which is kept secret under grand jury rules, Ms. Allen said prosecutors urged her to watch her words. When she said Mr. Garner did not appear to have a pulse, a prosecutor stepped in. "Don't say it like that," she recalled the prosecutor saying. "You're only assuming he didn't have a pulse."
A prosecutor also interjected when she told jurors how Mr. Garner was taken to the ground. "I said they put him in a chokehold," Ms. Allen recalled saying. "'Well, you can't say they put him in a chokehold,'" she said a prosecutor responded.
Let's be clear. Video shows Garner was placed in a chokehold, which is banned by New York City police rules. And the medical examiner found that the chokehold killed Garner. So these are prosecutors trying to twist a witness's words — despite actual evidence — to get the outcome they apparently desired.
This is just a small glimpse into how much control prosecutors can have over grand juries. Grand jury hearings are long — lasting hours each day, and sometimes multiple days per week for many weeks. During these exhaustive sessions, jurors are asked to examine a bunch of technical evidence when all or most of them may not even know the basics of the law they're trying to apply.
In this setting, the prosecutors are treated as the go-to experts in the room — taking the jurors' questions, and usually giving them the answers that best guide jurors to a conclusion that prosecutors want. And prosecutors have total control over what evidence is presented — which documents the jurors see, which witnesses speak, and so on.
This is why Baltimore City State's Attorney Marilyn Mosby quickly got a grand jury to indict the Baltimore police officers involved in Freddie Gray's death, and why Solicitor Scarlett Wilson got a grand jury to indict the North Charleston, South Carolina, ex-cop who shot and killed Walter Scott. They wanted charges, so they presented the evidence in a way that would lead to charges quickly.
On the other hand, the Staten Island district attorneys didn't seem to want charges in the case of Eric Garner, based on Allen's retelling to the Times. So they talked up Garner's health problems — that he was obese, and had acute asthma and a history of diabetes — and downplayed the use of the word "chokehold." That way, it looked like it was Garner's health problems that caused his death, not the officer's actions.
Why wouldn't a prosecutor want charges?
One reason prosecutors may not want to charge police for use of force is that prosecutor's jobs can depend on being very pro-police. When prosecutors are seeking to charge people for crimes, they need local police to look into the subjects of a case and invest their resources — from wiretaps to on-the-ground searches — into a full investigation. This is necessary not just for prosecutors to do their jobs correctly, but also for their political survival — prosecutors are often elected on law-and-order platforms that are bolstered by blockbuster indictments and convictions.
"In order for them to be effective and successful in doing that, they absolutely need the cooperation and to have a strong positive relationship with the police," Thomas Nolan of Merrimack College of Massachusetts said in December. "They do work in the courts … everyday with police officers. They forge professional relationships with them. Sometimes they have personal relationships with them."
This is why some criminal justice experts, such as Nolan, like the idea of bringing in independent prosecutors for police use of force cases — to, ideally, reduce the chances of a prosecutor having ties to police in the same way a local or state prosecutor would.
No video, no chokehold
The New York Times's story also reveals how if it weren't for the video evidence, it may have never come to light that police officers put Garner in a chokehold. Even the city medical examiner cited the video images as part of the evidence in the autopsy.
"We didn't know anything about a chokehold or hands to the neck until the video came out," a former senior police official with direct knowledge of the investigation told the Times. "We found out when everyone else did."
This is yet another way the grand jury could have been skewed. Even if the prosecutors wanted to get charges, they would have been relying on evidence gathered by the same police department whose officers killed Garner — and the police very well may try to hide proof of misconduct.
It doesn't work like this everywhere. In some jurisdictions, independent agencies investigate cases involving police officer misconduct to avoid any potential conflicts of interest. Not so in New York City.
So prosecutors can completely manipulate a grand jury because they have complete control over what evidence to present and how to present it. And in New York City, local police can also manipulate the investigation since they gather the evidence. It's hard to have much trust in this system.