DA’s office could have secured indictment in Eric Garner case: Fordham professor

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NEW YORK (PIX11) - Professor James Cohen, an expert on criminal procedure at the Fordham University School of Law, said Thursday if Staten Island District Attorney, Daniel Donovan, really felt strongly about securing an indictment in the chokehold-induced death of Eric Garner,  he could have gotten one.

“If Mr. Donovan wanted an indictment in this case, he would have obtained it,” Cohen remarked to PIX 11, during an interview at Fordham’s Manhattan campus, “because a grand jury will indict a ham sandwich, if they’re asked to do so by a prosecutor.  He did not want to see an indictment for criminal conduct in this case,” Cohen theorized, “because the district attorney works very closely with police, and if the D.A. gets a reputation for being hostile to police officers, the police will minimally cooperate with him.”

Earlier this week, a veteran, Staten island, criminal defense attorney—Patrick Parrotta—said Donovan’s office would not steer a grand jury one way or the other.

“Their oath is not to get convictions.  It’s to investigate crimes.”

The District Attorney has not commented publicly, since the announcement came Wednesday that a grand jury sitting for nine weeks had voted not to indict NYPD Officer, Daniel Pantaleo, for his fatal encounter with 43-year old Eric Garner, a large, asthmatic, Staten Island man who resisted arrest—when officers tried to bust him for selling untaxed cigarettes on July 17th.

The Medical Examiner ruled the death a homicide, with a choke-hold and chest compression contributing to the fatality.

Officer Pantaleo had testified before the grand jury on November 21st, providing context for what happened that day—through his eyes—and insisting he had only *tried to perform a “takedown” of Mr. Garner, part of his police training.  Chokeholds were banned twenty years ago by the NYPD.

“The evidence in this case submitted to the grand jury was easily sufficient to justify an indictment for criminally negligent homicide or recklessness,” Professor Cohen said.

Cohen noted that even if the officer had been indicted and convicted on these lesser felonies, he would not have necessarily faced jail time.  Certain felonies allow for probation, if the defendant has no, prior criminal history.

Cohen spoke to PIX 11 News, shortly after Staten Island Judge Stephen Rooney released a decision on the District Attorney’s request for “limited public disclosure” of what happened in the case.

What was released wasn’t much—and most had already been reported by the media.

The grand jury sat for nine weeks, and there were 50 witnesses.  22 of the witnesses were civilian.  The 28 others were police, emergency medical professionals, or doctors.

The prosecutor’s office presented 60 exhibits, including four video, records on NYPD procedures and training, Eric Garner’s medical records, autopsy photos, and an explanation of Penal Law 35.30—

which talks about a police officer’s use of physical force while making an arrest.

It was reported earlier this week that the 23-member grand jury consisted of 14 whites—and 9 non-whites.  This information was not contained in Thursday’s disclosures.

Professor Cohen said of the judge’s release, “It doesn’t say anything!  It’s not the content of the grand jury proceedings, you don’t get any witness testimony, you don’t have the content of any of the exhibits.”

It should be noted that under New York State law, grand jury proceedings are supposed to be secret—and stay secret.  Grand jurors are not supposed to ever disclose what takes place inside the jury room.

Many comparisons have been made this week between the Staten Island case—and the release of more than 200 documents in Ferguson, Missouri last week--after a grand jury decision that found “no true bill” for an indictment of Officer Darren Wilson, in the shooting death of Michael Brown.   The Ferguson decision sparked riots, fires, looting and destruction in Missouri, along with protests around the country.

The protests that followed the Staten Island decision were relatively peaceful—but disruptive of traffic and major thoroughfares.