California Governor Passes Ban On Use Of Grand Juries In Officer-Involved Killings

from the unindictable-ham-sandwiches-forced-to-brave-actual-due-process dept

Grand juries have proven capable of handing down nearly any indictment requested by prosecutors… if it's just a citizen on the receiving end. What's normally a rubber-stamping of charge recommendations tends to fall apart when a police officer is the potential defendant. With rare exceptions, actions that would have seen the average citizen charged with a crime are dismissed by grand juries -- whose only true consistency appears to be compliance. If a prosecutor doesn't want someone charged, a grand jury can just as easily be led in that direction as well.

California governor Jerry Brown is looking to even the odds. While the best strategy would be to dump the grand jury system altogether, Brown is at least opting for the next best thing.

Gov. Jerry Brown signed legislation Tuesday making California the first state in the nation to ban the use of grand juries to decide whether police officers should face criminal charges when they kill people in the line of duty.

In this move, there's a tacit admission that grand juries will buy whatever a cop-friendly prosecutor chooses to sell them. Beyond that, there's an open admission that grand jury proceedings are about as opaque as the legal process can get.

"What the governor's decision says is, he gets it -- the people don't want secrecy when it comes to officer-involved shootings," said retired judge and former San Jose independent police auditor LaDoris Cordell, the first African-American appointed as a judge in Northern California and a key supporter of the bill. "We're not trying to get more officers indicted. We're saying, 'Whatever you decide, do it in the open.'"

This should be the case in every grand jury presentment, not just those pertaining to police officers. And there's a lot of area left uncovered by the limitation of this ban to only the times when an officer manages to kill someone. But it's better than the current situation, which is generally a citizen's jailhouse railroad and an officer's slightly-delayed vehicle of absolution.

And, of course, prosecutors and police unions are against it.

[T]he California District Attorneys Association and the California Police Chiefs Association opposed the ban, saying the grand jury should be preserved as an option. Imposing a blanket prohibition would discriminate against police officers on the basis of their occupation, they argued.

As opposed to being discriminated for on the basis of their occupation? I don't think many people feel a grand jury has anything to do with due process. And that goes both ways. I'm sure cops would rather face a grand jury than a real "jury of their peers." The odds of walking away without charges is greatly increased in the former situation.

The two agencies unwilling to see their own thrown to the wolves face the harrowing nightmare that is due process have a suggestion: let's not scrap the cop-friendly grand jury system. Instead, let's put all the sunlight we can on cases where officers have been declared to have Done Nothing Wrong.

The association suggested that the Legislature could increase transparency by allowing grand jury transcripts to be released in cases for which no one was indicted.

The only thing transparent about these entities is their self-interest. The only way something like this could be framed as a "concession" is if the person delivering it is completely devoid of self-awareness and/or a conscience. While it would allow for some Monday morning quarterbacking of the grand jury's decision, it doesn't do anything to stop the underlying problem: that cops are routinely treated very differently than citizens by grand juries.

Mark Zahner of the District Attorneys Association, appears to have divested himself of his self-awareness and conscience years ago.

"It's absolutely ludicrous to espouse or believe that police officers get treated any differently than anyone else."

It's absolutely ludicrous to espouse or believe that police officers get treated any differently than anyone else.

Mark Zahner: absolutely ludicrous.

Filed Under: california, grand juries, jerry brown, killings, murder, police, preferential treatment

The Homicide No One Committed: Eric Garner's Death At The Hands Of An NYPD Officer No-Billed By Grand Jury

from the inequitable-treatment-for-all! dept

Another citizen dies at the hand of a police officer and another grand-jury-in-name-only can't be bothered to return an indictment. I won't rehash the stats, but the grand jury process exists for one purpose: returning indictments. And now a system that almost always acts as the prosecutor's rubber stamp has failed to do so. Of course, in both cases, the accused were law enforcement officers and that changes everything.

There are some similarities between the Eric Garner case and the Michael Brown case, and they are significant. In both cases, the men were large, black and unarmed. In both cases, a minor crime was allegedly involved -- petty theft in Brown's case and (very allegedly -- this narrative appeared well after the initial reports) the sale of untaxed single cigarettes ("loosies") in Garner's.

The cases diverge, as well. Brown was shot. Garner was choked. In Brown's case, there were multiple eyewitnesses, but they offered conflicting and shifting accounts of what happened. In Garner's case, there were multiple unblinking witnesses -- cellphone cameras -- that captured the entire incident.

In both cases, the grand juries spent weeks examining the evidence. Cases involving those outside of the law enforcement community are examined in a matter of minutes, if not seconds. The grand jury doesn't need a preponderance of evidence to return an indictment in 99.9% of its cases. All it needs is a prosecutor to tell it that probable cause exists and what charges it should bring. A minimum of evidence is provided for its consideration and, in almost every case, the grand jury applies the rubber stamp and the wheels of the "justice" system continue to roll.

Officer Pantaleo faced a greater challenge than Officer Wilson, though. There was videotaped evidence of his every move during the incident. At multiple points, his testimony directly contradicted what the recordings showed.

He acknowledged that he heard Mr. Garner saying, “I can’t breathe, I can’t breathe,” and insisted that he tried to disengage as quickly as he could…

Watch the video for yourself and see if Pantaleo's statements match his actions.

Pantaleo may have released the chokehold, but he didn't "disengage." Instead, he moved toward the top of Garner's body and held his face down on the pavement. These two moves, one forbidden and one possibly unnecessary, were all that was needed to kill Eric Garner.

I don't use the word "kill" lightly. That's quoting the findings of the medical examiner. "Compression of the neck and chest." "Homicide." That's from the official autopsy. Garner was killed by Officer Pantaleo.

Pantaleo defended his chokehold further by stating that Garner's audible complaints that he couldn't breathe were evidence that he could actually breathe. Fair enough, I suppose, but what Garner was saying was that he was having great difficulty breathing, using what little oxygen he had available to inform the officer of this fact. Just because he didn't phrase it more accurately doesn't change the facts. Garner had trouble breathing, thanks to Pantaleo's actions, right up until he couldn't breathe anymore.

According to his lawyer, Pantaleo justified his chokehold further -- first by stating his fear for his and the other officers' safety and second, by claiming he detached himself as quickly as he could and cleared the path for paramedics to provide assistance. Again, the video contradicts his testimony.

“That’s why he attempted to get off as quick as he could,” Mr. London said. “He thought that once E.M.T. arrived, everything would be O.K.”

The recordings show Pantaleo restraining Garner well past the point of any resistance before heading to the periphery and waving to the cameras. There's a long wait between Pantaleo's disengagement and the paramedics' arrival, during which time a variety of cops appear to believe (despite the physical evidence they're manhandling) that Eric Garner is simply unconscious -- and attempt to undo his death by shouting at him and rolling his lifeless body back and forth

This death is linked to Ferguson mostly in terms of chronology. Garner's death at the hands of a police officer bears more resemblance to the extended restraint and excessive force that brought about the deaths of Kelly Thomas and David Silva. The autopsies contain certain similarities -- like the listing of preexisting health conditions that may have contributed to their deaths. Of course, it's very likely that all three men would still be alive if not for their "interactions" with law enforcement, but medical examiners aren't really interested in pointing this out.

But Garner's was different in this respect: it was determined to be a homicide. But the grand jury viewed all the evidence provided to them by prosecutors uninterested in prosecuting and somehow managed to avoid bringing any charges at all. As Scott Greenfield states in his excellent writeup on the subject, this presents a bit of a problem. Unlike Missouri, where charges can still be pursued without a grand jury indictment, in New York it's a grand jury or nothing.

The District Attorney of Richmond County, New York, has, by the intentional sabotage of his own grand jury presentment, created the legal conundrum of a homicide without a perpetrator. It cannot be, yet it is, because he chose to make it so.

Pantaleo now resides in this impossible state. Possibly not for long, as the federal government is launching a civil rights inquiry, but for the time being, he is the recipient of one of the justice system's many "miracles." While it's true that a medical examiner's declaration of "homicide" doesn't actually denote a criminal act has taken place, it does signify that the death was neither accidental nor natural. There was a perpetrator involved and in a normal grand jury setting, this would easily have resulted in an indictment. The jury trial following the indictment would have sorted out the particulars of the death, and perhaps Pantaleo would have walked free nonetheless, but because the grand jury process resulted in "no true bill," Garner's death remains in limbo -- a homicide with no perpetrator to hold accountable or to clear of culpability.

The NYPD is readying its body cam pilot program, but that seemingly offers little in the way of reassurance in light of this outcome. We have just seen an officer who choked a man to death walk away a free man, despite three separate recordings of the incident. What good are cameras if the system continues to grant abusive officers this much leeway? What difference does damning footage make when grand juries believe cops' statements about "fear for their safety" more than their own eyes? These questions can't be answered, at least not with any degree of certainty. And they're uncomfortable questions, both for those who fear that excessive force and misconduct will remain a constant no matter what corrective measures are put in place, as well as for those who generally come down on the side of law enforcement. For those wishing to hold police accountable, each incident caught is more evidence of systemic problems. For those siding with the police, it's just one more indefensible position for them to defend.

One thing is certain, this case would never have received as much attention if cameras hadn't been present. We may not like the outcome, but the process that brought it this far was pushed along by the existence of multiple recordings.

I'm not of the belief that this wholly negates the benefits of body cameras. What it does serious damage to is the notion that they can be tools of greater accountability. The system skews heavily in favor of officers facing charges and hours of footage detailing abuse and misconduct won't change that, at least not on its own. But the gathering of evidence is important, nonetheless. So is the deterrent effect, in which the knowledge of being filmed alters behavior -- both for police officers and the people they interact with.

But using this outcome to declare police body cameras useless accomplishes nothing. We've already seen what happens without them. The alternative is to allow things to proceed as they have so far, and no one's happy with the status quo. The court of public opinion can't return indictments, but it can provoke needed changes within the system -- and that's a lot easier to do when there's footage backing up the claims. It won't be an overnight process, but it can be done.

Filed Under: eric garner, grand juries, grand jury, homicide, nypd

Free Speech Apparently Less Important Than US Attorney & Courts Silencing 'Annoying' Woman

from the free-speech-ain't-free dept

In November, we wrote about the bizarre and troubling case of a court sealing an amicus brief from the Reason Foundation and the Institute for Justice, which raised important First Amendment questions about a federal grand jury subpoena that seemed designed solely to stifle the speech of a woman, Siobhan Reynolds, who was protesting federal prosecutions of some doctors, whom she felt were wrongly accused. It seemed bizarre that a court would seal an amicus brief about free speech -- and a reporter, who was allowed to see the brief and the court's order to seal it, says that one of the reasons for sealing the brief was that it would help get attention to the cause in question. Yes, the court felt the brief (which was entirely based on public info) should be sealed because it might call attention to public information.

Unfortunately, since then, things only got worse. Radley Balko has the full details on what the case was all about, and it seems like a clear case of the government abusing its powers to stifle the speech of someone they found to be annoying. And, unfortunately, it's worked. The Supreme Court refused to hear the case and so the harassment succeeded. You should read the full details, but the short version is that Reynolds was a very vocal activist on the issue of pain relief. When Assistant US Attorney Tanya Treadway indicted a doctor and his wife, supposedly for over-prescribing painkillers, Reynolds organized protests which apparently succeeded in getting a fair amount of attention. Treadway's response was to do whatever possible to silence Reynolds:

The savvy and unusual countercampaign didn't sit well with Treadway. She first tried to get a gag order preventing Reynolds from talking about the case in public. Judge Belot said no. Several of Schneider's patients say they were then visited by federal agents, who forced their way into their homes and took documents (including a letter Schneider had sent one of them from prison). Treadway next asked the judge to move the case out of town, arguing that Reynolds' advocacy had tainted the jury pool (never mind Treadway's own press conference). Belot denied the change of venue request, too.

Treadway then launched a grand jury investigation of Reynolds, presumably for obstruction of justice, though she told Reynolds' attorney that she would neither confirm nor deny that an investigation was under way. She issued Reynolds a sweeping subpoena demanding all of her records for every case in which she has ever advocated on behalf of a doctor or patient--every e-mail, letter, and phone record, as well as Facebook wall posts and status updates. Complying cost Reynolds tens of thousands of dollars and hundreds of hours of labor. With help from the ACLU, Reynolds sued to have the subpoena quashed. She lost. A second judge, Julie A. Robinson, hit her with a $200 fine for contempt each day she didn't comply. Robinson also declined Reynolds' request to make the subpoena and related proceedings public, effectively imposing a seal on the subpoena, Reynolds' challenge to it, and any materials related to either.

In the meantime, the Schneiders were convicted in federal court of drug trafficking. During their sentencing, Federal District Court judge Monti Belot called Reynolds "stupid" and "deranged," and referred to the Pain Relief Network as a "Bozo the Clown outfit."

Now, the thing is, no matter what you think of Reynolds or her actions, she does have free speech rights -- or, at least, she's supposed to. She appealed both the subpoena and the sealing, which the appeals court rejected -- and now the Supreme Court has rejected hearing the case as well, meaning that the subpoena, which seems only designed to bully, stands and all the details are sealed (though, you can find some things -- such as the "sealed" Reason/IJI subpoena on Scribd if you look hard enough).

What's scary about this is that it appears US officials are abusing the grand jury process, the court system, and the ability to seal details of a case for the purpose of silencing someone they find annoying, in large part because she was successful in getting people to protest some US government actions. This is the type of stuff our government isn't supposed to do and it's really depressing to hear of such an abuse of power by the US government.

Filed Under: free speech, grand juries, siobhan reynolds, tanya treadway, us attorney