by Matt Taibbi
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Fred Winship had also testified. The gray-bearded park regular was not young and healthy and cleaned up like James Knight and had been concerned about testifying. And his anxiety grew even greater, he says, when he found himself being prepped for his testimony by uniformed police officers.
“I’m being prepped, by officers, and they’re involved in the whole situation,” he says. “It’s officers investigating officers.”
Asked if he was intimidated, Fred says no at first. But then he shrugs. “Well, you know, you never know if something is going to come back on you,” he says. “I had to tread lightly, so to speak.”
When he got into the grand jury room, Fred was nervous to the point where he had trouble focusing. He can’t remember how many black jurors or white jurors there were, except that one of the jurors was definitely a black man. Fred remembers that because he kept focusing on him to try to keep himself calm. “I was intimidated, you know? So I was looking at the black guy.”
He blocked out the rest of the experience to the point where he doesn’t really remember the questions, except to say that he felt they weren’t asking the right ones. He left without any expectation that they would indict Pantaleo. “I felt like they were leaning in the direction of the police,” he says. “I can’t explain it.”
Twan “Pure” Scarlett says he was another witness who didn’t have much good to say about the experience. “They wasn’t asking too much about shit,” he says. “They was too busy laughing amongst themselves to ask.”
When asked what questions he did get, Pure just shrugs. “It was full of shit, that’s all I can say.”
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Because of the secrecy of the grand jury, some of its strange turns can only be seen in the negative space of the testimony that we do know about. For instance: the question of whether or not the prosecution argued that Officer Pantaleo used an illegal chokehold on Eric Garner.
Police chokeholds had been partially banned in New York City since 1985, when officers were instructed only to use them in a life-threatening situation. Then in 1993, after a twenty-one-year-old Queens man named Federico Pereira died of “traumatic asphyxia” after being choked by police, then commissioner Ray Kelly banned chokeholds with no exceptions.
Taisha Allen, who took the less-famous video of the aftermath of Garner’s death, actually had her testimony about whether Garner was put in a chokehold altered twice, if one believes news reports. According to The New York Times, police had whitewashed her original testimony that Pantaleo had used a chokehold in the initial UF-49 internal report written immediately after Garner’s death, quoting her instead as saying that police had brought Garner down “by his arms.”
Now, in the grand jury room, she was once again instructed to alter her testimony—and not just about the chokehold. She tried to say that Garner didn’t appear to have a pulse when he was left on the ground and they told her she couldn’t say that. She told the Times that when she then tried to tell jurors about the chokehold, a prosecutor interrupted her.
“You can’t say he put him in a chokehold,” she was told.
That Taisha might have been told not to say Garner didn’t have a pulse makes a little sense, since there was other evidence that he was alive after he left the street and was out of her sight, dying in an ambulance later on. Maybe prosecutors wanted to correct her on that score for consistency’s sake. Maybe there were other witnesses who’d taken Garner’s pulse who had other information.
But telling her she couldn’t use the term “chokehold” was confusing unless it, too, would’ve been contradicted by other testimony.
After Garner’s death, one of the few statements that came out of Officer Pantaleo’s camp was an insistence by his lawyer that Pantaleo had not used a chokehold, that any contact with Garner’s neck had been “incidental” and only part of a “takedown.” Lynch had said the same thing, explaining that Pantaleo was only doing what shorter officers were trained to do when apprehending taller suspects.
Later, police experts whose qualifications were of varying degrees of dubiousness would surface in the press explaining that what Pantaleo had used was not a chokehold at all but something other than what it looked like to most of the planet.
“Police sources” had told the New York Post within days of Garner’s death that it might have been a “submission hold,” a fully legal maneuver that included techniques “like the headlock.”
Had prosecutors called such experts to testify that Pantaleo had used a submission hold? If so, it would explain Taisha Allen being shushed when she tried to use the term “chokehold.”
That would be a strange thing for a prosecutor to do, however, especially when aspects of the case hinged on Pantaleo using a chokehold—for which there was evidence, including Allen’s original eyewitness testimony. A prosecutor honestly going after an indictment could have also drawn from experts on the issue, like for instance the commissioner himself, Bill Bratton, who had declared Pantaleo’s maneuver a banned chokehold on live TV on July 18. To call in the so-called experts who were denying that it was a chokehold would have needlessly undermined the prosecution’s own case for indictment.
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On Bay Street, many of the grand jury witnesses defied instructions not to speak about their testimony and consorted with one another about what went on. There were differing opinions. Some, like Pure, thought the whole thing was a setup and laughed at the idea that Pantaleo would ever go to trial. Fred Winship mostly agreed.
As the fall wore on, James Knight and John McCrae sat down at their usual spot on Bay Street from time to time and worked out what the charge might be, according to what they’d read in the news. McCrae felt sure the cop was going to court.
“I actually think they’re gonna do something,” McCrae said.
“Got to,” said James. “Four years, five years. Involuntary manslaughter. I’m not talking about no first-degree murder.”
“Gotta do something,” agreed McCrae, tapping his feet.
Weeks and weeks had passed. Then it was months. Garner had been killed in the middle of summer, and the grand jury had been called in August. Now fall was winding to a close and it was beginning to get very cold outside. The grand jury still had not made its decision. What was taking so long?
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On November 24, 2014, a grand jury in Ferguson, Missouri, reached a decision not to indict Officer Darren Wilson. St. Louis County prosecutor Bob McCulloch, Dan Donovan’s counterpart, announced that the grand jury had found “no probable cause” to indict for either first-degree murder or manslaughter.
McCulloch directly addressed witness accounts of Brown holding his hands up in surrender at the time of the shooting, an image that inspired the iconic nationwide “Hands Up, Don’t Shoot” protest meme. He said the grand jury’s decision meant that those witness accounts were “completely refuted by the physical evidence.”
McCulloch spoke for nearly an hour and complained bitterly about the media, protesters, and multiple other factors, sounding like a man who was irked that so many people had expected him to get an indictment, despite the fact that he, as the state’s prosecutor, was the one who was supposed to be disappointed.
While the death of Brown was a tragedy, he said, it was important not to act in response to a “public outcry or political expediency.”
These were strange quotes coming from the prosecutor who’d presented the case to the grand jury in the first place. If he didn’t think the case warranted an indictment, why had he tried for one? Was the whole thing a dog-and-pony show, designed to put an unpopular decision on the backs of anonymous grand jurors?
Residents in Ferguson pelted the local police station with bottles. In some neighborhoods there were reports of heavy automatic gunfire, and the situation was so volatile that airplanes were diverted away from the airspace over Ferguson.
President Obama was forced to make an ad-hoc, late-night statement. Appearing on TV just after 10:00 P.M., Obama
had seldom looked more uncomfortable. The nation’s first black president, desperately anxious to come across as a uniter and not an instigator, often seemed strained when he talked about race. And for good reason—he was in a nearly impossible situation.
The nagging suspicion among white voters was that Obama, beneath an outward façade of midwestern reasonableness and professorial logic, was a kind of double agent, a psyche in schism. Conservative media constantly presented him as the pre-Trump, left-wing version of a Manchurian president, raised in madrassas and weaned on socialism, who secretly hated white people, yearned to euthanize them, and took the White House with the sole aim of destroying traditional America.
The apotheosis of all of this was the preposterous birther controversy, pushed by then peripheral political curiosity and reality TV star Donald Trump. The Internet-driven furor over the president’s birth certificate led to huge numbers of Americans—41 percent in a 2016 poll—believing that Obama was not merely conflicted but not even an American. He wasn’t just black. He was illegitimate. An illegal president.
If anyone could communicate the frustration black Americans felt over Stop-and-Frisk and other neo-vagrancy laws that made black people feel like they could be arrested anytime, anywhere, it should have been Barack Obama. He’d made it all the way to the White House and was still considered to be literally trespassing by a huge plurality of the population.
But Obama chose not to go there. He didn’t disavow the anger felt by black America toward the police but also pleaded for restraint.
“In too many parts of this country, a deep distrust exists between law enforcement and communities of color,” he said. But “there’s never an excuse for violence,” he added.
Even this passive-voice acknowledgment of the existence of mistrust would later be turned around by critics and presented as evidence of hostility toward law enforcement.
Protests raged for another day or two, but by Thanksgiving Day, days after the grand jury decision, Ferguson was calming down. State and federal authorities seemed relieved.
But the Garner decision was looming. There was excellent reason to expect that a similar outcome from that grand jury would have much farther-reaching consequences.
The Wilson-Brown case, after all, had not been captured on video. But the whole country saw what happened to Eric Garner.
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On December 3, 2014, the Garner family was put on alert by Sharpton’s National Action Network that news of some kind was coming. From all over the city, Garner’s relatives came to the NAN offices in Harlem. Erica remembers sitting in the NAN offices, watching the TV, waiting for word. “Reporters kept coming in and out, seeing what was going on,” she says.
Just after two in the afternoon, the word came in: the grand jury had voted not to indict.
The family was outraged. They felt betrayed by Donovan, betrayed by the system, and were especially in no mood to hear a statement issued by Daniel Pantaleo’s lawyers about how the in-hiding officer was feeling “very bad about the death of Mr. Garner.”
At a press conference at the NAN offices in Harlem, reporters asked the family if they accepted Pantaleo’s apology. “Hell, no,” replied Esaw, in a response that went viral almost immediately. “The time for remorse for the death of my husband was when he was yelling to breathe.”
She went on about Pantaleo, seething: “He’s still feeding his kids, and my husband is six feet under and I’m looking for a way to feed my kids now.”
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It didn’t take long for questions to be raised about the behavior of the Garner grand jury. Legal experts all over the country, but particularly in New York, almost universally expressed shock that the video had not resulted in an indictment.
Columbia law professor Jeffrey Fagan, for example, told reporters that “the video speaks for itself” and “appears to show negligence.” However, he added, “if we learned anything from the Brown case, it’s the power of prosecutors to construct and manage a narrative in a way that can shape the outcome.”
Among the legal community in Staten Island, some local defense lawyers would have bet their lives against an eventual conviction. This was, after all, Staten Island. But most thought there would at least be an indictment.
One former Staten Island prosecutor watched the video over and over again. He doubted they would ever be able to prove intentional murder or even a lesser charge like criminally negligent homicide. But he thought it would go to court at least.
“I thought it would be a true bill, and then he’d be acquitted,” he says.
Another defense attorney cited the aforementioned Sean Bell case, in which an unarmed New York man had been shot at fifty times by three detectives in the parking lot outside the strip club where he was holding his bachelor party.
In that case, the grand jury indicted, but then the three cops waived their right to a jury trial and put their lives in the hands of a judge named Arthur J. Cooperman. Cooperman acquitted all three.
“They’ve got so many different ways to do it,” says the defense lawyer. “I thought it would be something like the Bell case. Indict Pantaleo, then it’s just him and a Staten Island judge. That’s what I expected. But no indictment at all, that was kind of hard to imagine, with the video and all.”
President Obama, who’d played things right down the middle in the Ferguson case, was far less equivocal now.
“When anybody in this country is not being treated equally under the law, that is a problem,” he said. “And it’s my job as president to help solve it.”
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By the time Erica Garner went home from the NAN offices that night, protests had broken out all over the city. Many were spontaneous and involved dozens or hundreds, but in some places thousands gathered. On the Lower East Side, thousands made their way from Foley Square to Sara D. Roosevelt Park, merged with others on Canal Street, then stormed west to block the West Side Highway. Farther north, protesters marched to Thirty-fourth Street, where some three hundred people lay down for eleven minutes in a “die-in,” which became the signature Garner-related protest. The protests spread to the point where crowds on the Williamsburg Bridge were blocking Erica’s cab ride home. She was awed by the sheer number of people and right in the middle of the bridge jumped out of the cab to take a look, against the objections of her cabbie.
She went into the crowd and began talking to people. “I said, ‘I’m Erica Garner. Thank you. I love you all so much.’ ”
She talked for a few minutes, then she remembered she had to get home. “They’d surrounded the car, and I asked them to clear up so I could go,” she remembers.
The crowd parted, and Erica’s cab drove straight across the bridge.
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The city was still in shock over the announcement when the following day, December 4, brought another stunning piece of news. A Staten Island judge named Stephen Rooney issued an order approving a sealed ex parte request from Dan Donovan to release “certain limited information regarding the conduct of grand jury proceedings.” Donovan had apparently at some point gone to the court and asked permission to release information about the Garner grand jury, with the aim of “assuring the public.”
Because secrecy is so elemental to the grand jury process, information on proceedings is sealed and can only be released under certain criteria. What it mostly boils down to is that anyone who wants to unseal grand jury minutes has to have a pretty damned good reason. In the words of the relevant statute, a “compelling and particularized need” to allow the public access to information has to be demonstrated.
Donovan had apparently argued to Judge Rooney that such a need existed at this moment, and Rooney agreed.
“Somewhat uniquely in this matter,” the judge wrote, “the maintenance of trust in our criminal justice system lies at the heart of these proceedings.”
He added that we were at a “crucial moment in the nation’s history, where public confidence in the evenhanded application of [our] co
re values among a diverse citizenry is being questioned.”
Translated loosely, Rooney was saying that tensions were high and that he, Rooney, needed to release some information about what had taken place in the grand jury proceedings in order to keep millions of people from losing their minds and New York from turning into another Ferguson.
He therefore allowed Donovan to tell the media certain facts:
The grand jury sat for a total of nine weeks.
The grand jury heard from a total of fifty witnesses, twenty-two of whom were civilians. The remainder had been police officers, emergency personnel, and doctors.
Sixty exhibits were admitted into evidence. They included “four videos, records regarding NYPD policies and procedures, photographs of the scene and records pertaining to NYPD training.”
By the afternoon of December 4, the whole country heard the new details Donovan had asked Judge Rooney to release to the public. In the media, this information was mostly presented as proof that Donovan’s investigation had been thorough and fair.
But a few lawyers across New York City were quietly coming to a somewhat different conclusion.
They looked at the summary of the witnesses and exhibits and wondered: What kind of case had Donovan put on, exactly? Why all of those police witnesses? Why so much evidence about training procedures? Had Donovan called witnesses for the prosecution and the defense? If so, why?
Donovan was ostensibly after an indictment, and here he had a homicide, committed in broad daylight, captured on video. Even if the argument was for criminally negligent homicide—accusing Pantaleo of the overzealous use of a banned procedure—the case was not terribly complicated. Hell, the city’s police commissioner had called it a chokehold on live television.
Yet Donovan had put on a case that reminded most criminal lawyers of a white-collar case, or a case involving government corruption, where jurors had to be led through an exhaustive evidentiary trail to see the crime.