Court Asked to Intervene on Garner Grand Jury

BROOKLYN, N.Y. (CN) - A group upset at a grand jury's failure to indict the police officer who killed an unarmed Eric Garner has asked a judge to intervene.

Video footage shot by a bystander recorded Garner gasping repeatedly, "I can't breathe," on July 17, 2014, as New York Police Department officer Daniel Pantaleo held him in a fatal chokehold.

Pantaleo had been part of a group of several police officers who approached Garner as the unarmed 43-year-old sold loose cigarettes near the Staten Island Ferry.

Though a medical examiner designated Garner's death a homicide, a grand jury declined to indict Pantaleo, further fueling the wave of unrest across the city and nation over excessive force in minority communities.

The Staten Island branch of the National Association for the Advancement of Colored People meanwhile filed complaint with a state grievance committee against the prosecutor who instructed the grand jury on Garner's death.

Central to the NAACP's claim was that Daniel Donovan, who then held the office of Staten Island district attorney, had violated rules of professional conduct while handling the Garner case.

The grievance committee shot the group down in January, however, finding that it was not the "appropriate forum" to address such claims.

On Wednesday, the group filed a petition with the Kings County Supreme Court to review the grievance committee's finding.

Though the NAACP filed a similar petition in March, it withdrew the filing in April.

Tuesday's petition also seeks review of a March 17 letter that the committee sent the NAACP.

Earlier this summer, New York Gov. Andrew Cuomo spurred into action on New York Attorney General Eric Schneiderman's call to be made special prosecutor for police killings of unarmed civilians.

Though the NAACP asked Schneiderman to conduct an investigation into Garner's death in that capacity, the NAACP says Schneiderman's office declined the request last month.

Cuomo's June 23 executive order applies "only prospectively to incidents that occur" going forward from that date, according to the letter the NAACP received, as quoted in a memorandum in support of Wednesday's petition.

The NAACP wants the court to rule that the state grievance committee is indeed the appropriate forum with jurisdiction to address its complaint against Donovan.

"The unfortunate reality is that many of the African American male members of the Staten Island NAACP branch and many of the thousands of black and brown males and other males of color who are citizens and residents of Staten Island and of the State of New York are ... more likely than their white counterparts to be engaged by New York City Police Officers and/or other local law enforcement officers throughout the State of New York," NAACP attorney James Meyerson wrote in a 97-page memorandum filed along with Tuesday's petition.

Donovan was "inherently self serving," and should have disqualified himself from his duties to avoid "engaging in conduct which undermined the integrity of the administration of the criminal justice system for which he was in charge on the behalf of 'the people' of the State of New York and of Richmond County/Staten Island," Meyerson wrote.

The grievance had asserted that the district attorney's "relationship with local police officers and the prosecutor's trust in those local police officers and bond with them [makes it] impossible for the local prosecutor to investigate and to prosecute local police officers for criminal conduct in a case where the police officers have killed an unarmed individual," Meyerson said.

"When all is said and done, duly elected district attorneys have, as their clients, 'the people' in whose name a district attorney, as an attorney, prosecutes individuals for alleged crimes; and the district attorney does so on behalf of 'the people' and for the security of 'the people' - all the people of the State of New York, the City of New York, the County of Richmond including but not limited to the people who are the victims of the alleged crimes." (Emphasis in original.)

The NAACP suggested that the DA's office and the NYPD were in bed together.

"Suppose that, rather than being New York City Police officers, Pantaleo and the other individuals involved in the incident were ordinary, non New York City police officer citizens one of whom - specifically Pantaleo, was Richmond County District Attorney Daniel Donovan's cousin." (Emphasis in original.)

The NAACP's filings called NYPD officers "cousins, if not brothers and sisters" of the DA's office.

Donovan's failure to remove himself "infected the entire Eric Garner grand jury process," the NAACP said.

"To exempt him," the NAACP said, would give a "virtual freehand" to district attorneys across America to do anything they wanted "to the detriment of the public interest," Meyerson wrote.

"Such cannot be the case," he said.

"Certainly, the United States Supreme Court did not envision that the prosecutor would have no oversight and could do whatever the prosecutor wanted to do, no matter how inappropriate, without oversight and a procedure that would provide review, on the merits of the actions taken by a prosecutor, pursuant to and by an independent enforcement body employing specific rules governing the conduct of attorneys," Meyerson said.

"The continuing legacy of the system of slavery - racial inequality - is no more clearly manifested in today's America than in the administration and implementation of the nation's criminal justice systems which disproportionately implicate the lives of black and brown people in our nation," Meyer said in an "after-thought" in his 97-page supplemental filing.

Donovan is now a member of Congress, having won a May special election to represent Staten Island and the southern tip of Brooklyn in the U.S. House of Representatives.

The previous holder of that office, Michael Grimm, faces an eight-month prison sentence for underreporting taxes at his former health food restaurant in Manhattan.

With Grimm scheduled to undergo surgery, U.S. District Judge Pamela Chen gave him an extra few weeks Tuesday to delay his self-release. He is expected to surrender no later than Sept. 22.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit