Eric Garner’s Killer Will Probably Never Be Indicted

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And Loretta Lynch’s inaction will have played at least as big a role as Jeff Sessions’ stringent support of police.

By Jack Denton

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Loretta Lynch. (Photo: Alex Wong/Getty Images)

With Barack Obama mere hours away from leaving the presidency, at least one portion of his administration has been unable to partake in the teary goodbyes and warm retrospectives that have surrounded his departure. In Brooklyn, federal prosecutors from the Department of Justice’s Civil Rights Division are quietly fighting against the clock to try to obtain a grand jury indictment of Daniel Pantaleo, the New York City Police Department officer whose chokehold led to the 2014 death of Eric Garner, the New York Post reports.

The federal prosecutors, who spent Wednesday and Thursday presenting witness testimony, appear to be rushing to try to get Pantaleo indicted Friday morning before President-elect Donald Trump assumes office and Senator Jeff Sessions becomes the new attorney general (presuming his confirmation). Sessions is viewed as unlikely to pursue accountability for Garner’s death if an indictment does not occur before current Attorney General Loretta Lynch leaves the Department of Justice (DOJ). In the prepared remarks Sessions gave last week during his confirmation hearing, he frowned at police accountability and expressed enthusiastic support for officers. “Law enforcement as a whole has been unfairly maligned and blamed for the actions of a few bad actors and for allegations about police that were not true,” he said.

Pantaleo’s lawyer told the New York Post yesterday that the officer had not yet been subpoenaed for the grand jury, or even notified that it was taking place. Additionally, the Washington Postreported last week that sources close to the case say that it will be passed on to the incoming administration. It seems dubious that Pantaleo will be successfully indicted before the Trump presidency begins, and thus unlikely that he will ever face accountability.

However, if Pantaleo is never indicted, it won’t just be because of an unwilling Sessions-led DOJ; months of waffling by Lynch and infighting at the DOJ over the handling of the case have prevented a trial from ever coming to fruition.

After Garner was killed during an arrest for selling loose cigarettes in July of 2014, the DOJ initially left the case up to the State of New York. That December, however, a Staten Island grand jury failed to indict Pantaleo. In response, thousands marched through New York City in protest. Almost immediately, the DOJ opened a federal civil rights inquiry. The New York Timesreported that Eric Holder, who was attorney general at the time of Garner’s death, told his staff there was clear evidence that Garner’s death warranted federal charges, even if prosecutors might lose in court.

For more than a year following that announcement, Federal Bureau of Investigation investigators and the DOJ sought to determine whether Pantaleo had violated Garner’s civil rights during the arrest. During that time, Garner’s family settled a civil lawsuit with New York City for $5.9 million. Finally, in February of 2016, a federal grand jury was empaneled in Brooklyn, and prosecutors from the Southern District of New York (the local arm of the DOJ) began to present evidence. The grand jury process slowed and was never completed, however, as federal prosecutors and FBI agents clashed with the DOJ’s civil rights division over whether there was clear enough evidence for the case.

For the majority of 2016, no progress was made with the federal Pantaleo case, and Lynch retained her traditionally hands-off style of leading the DOJ. In October of 2016, Lynch finally broke from her slumbers of contemplation, and replaced the prosecutors from the Southern District of New York (her former office) with prosecutors from the DOJ’s Washington offices and replaced FBI agents with ones from outside New York. The New York Timesreported that Lynch had “been considering for months how to proceed.”

It remains unclear why the Pantaleo grand jury was not empaneled until this week, since Lynch’s reshuffling of the staff took place almost three months ago. Lynch’s DOJ may have been expecting a Hillary Clinton presidency, and thus felt no urgency to resolve the case. Regardless, the department’s flat-footedness in respect to a Trump presidency would have been moot had Lynch asserted her will over its handling of the case earlier, and more firmly.

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