The unpopular decisions by grand juries in Ferguson, Missouri and Staten Island, New York not to indict cops who killed black males have raised questions about whether prosecutors in those cases even wanted indictments or pushed hard enough for them.
Grand jury proceedings give prosecutors wide latitude to make their case to a jury that generally consists of either 16 or 23 people, 12 of whom must vote to indict. Prosecutors almost always get indictments — with the notable exception of cases involving cops, as FiveThirtyEight pointed out.
In jury trials, judges have to approve evidence that the jury sees. But grand jury proceedings let prosecutors choose the evidence and witnesses in order to present the most compelling case possible to indict the defendant.
The local prosecutors in both Ferguson and Staten Island have been accused of overwhelming the grand juries with evidence and failing to present streamlined narratives that would have convinced the grand juries to indict.
The grand jury in Ferguson heard more than 70 hours of testimony when deciding whether to indict Darren Wilson, the cop who shot an unarmed 18-year-old named Michael Brown, as USA Today reported. The evidence that St. Louis Prosecuting Attorney Robert McCulloch presented included eyewitness statements that contradicted one another and complex forensic evidence.
University of Missouri law professor Ben Trachtenberg told USA Today that it was “certainly unusual” for a prosecutor to put out so much evidence to a grand jury.
“It certainly looks like he put on a much greater amount of evidence than we’re used to,” he told USA Today. Trachtenberg added, “In many cases, the grand jury can see evidence in a few minutes and take a vote.”
The grand jury case involving the death of a Staten Island man named Eric Garner also took more than a few minutes.
During a nine-week period, that grand jury listened to 50 witnesses, saw 60 exhibits of evidence, and reviewed medical records and autopsy reports presented by District Attorney Dan Donovan of Staten Island, according to NPR. That grand jury also saw video of police officer Daniel Pantaleo putting Garner in the apparent chokehold that contributed to his death.
While that video might seem damning, the grand jury also got to hear from Pantaleo himself, who said he never meant to hurt Garner. Cops like Pantaleo tend to make credible witnesses, attorney Paul P. Martin told The New York Times.
Pantaleo had an advantage many other defendants don’t. Most defendants don’t even know grand jury proceedings are being brought against them, nor are they invited to testify in their own defence, former prosecutor Lalit Kundani wrote in the Huffington Post.
If it seems like the local prosecutors in this case didn’t do the best job they could, there is a possible explanation for their motivations. Prosecutors have to work with cops all the time, so they might be reluctant to anger the force by indicting an officer, as USA Today pointed out.
The cynical point of view is that Donovan was playing to his base. Staten Island is the whitest and most conservative borough in New York. It’s also home for many cops. Maybe Donovan figured he would take heat however the grand jury came out, but the people who would be protesting in the street in the event of no indictment did not include most of his electorate.
But there is a more benign explanation. Maybe Donovan just appreciates that cops have one of the most difficult jobs in the world, and so, he cuts them some slack. It’s a very human reaction.
Regardless of Donovan’s motivation, Butler argued, the appointment of a special prosecutor in criminal cases against cops would ensure the natural biases of local DAs don’t influence those cases.
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