T O PARAPHRASE an old saying, a grand jury would have indicted a ham sandwich in the July 17 chokehold death of Eric Garner in New York's Staten Island.
But a ham sandwich was not accused of grabbing Garner from behind, squeezing his neck and taking him to the ground as he used his last words to repeat, "I can't breathe."
New York City Police Officer Daniel Pantaleo was accused of that act, and the fact that a grand jury yesterday declined to indict him came as no surprise to seasoned Philadelphia lawyers.
Grand-jury proceedings are conducted in secret and are solely controlled by prosecutors who typically have close working relationships with cops, the lawyers noted.
So, when a cop is the subject of a grand-jury inquiry, it is not inconceivable that a prosecutor would present evidence and call witnesses that steer the grand jury to reject indicting an officer, the lawyers said.
"When the prosecutor presents a case to a grand jury, 99.99 percent of the time they are going to get an indictment, unless there is some bias in the way the evidence is presented to the grand jury," said Center City criminal-defense lawyer James Funt.
For that reason, Funt said, a grand jury should not be used to determine whether an accused police officer should be arrested.
In Philadelphia, District Attorney Seth Williams has handed the decision of whether to indict cops to a grand jury in several high-profile cases. Those include the ongoing case of fired homicide Detective Ronald Dove, who is accused of failing to cooperate with detectives who are investigating his involvement in three homicide cases.
Center City criminal-defense lawyer A. Charles Peruto Jr. was blunt about his thoughts on the grand-jury process.
"What could be more un-American than a proceeding that is done in secret?" Peruto asked. "What could be more un-American than not being able to disclose what you were asked in the grand jury?"
"It is a tool of the prosecutor. It is 100 percent controlled by the prosecutor. There is no input from anyone else - not barely a judge, and certainly not from the defense," Peruto added.
Civil-rights lawyer L. Kenneth Chotiner said the public has reason to be concerned about the transparency of the grand-jury process. But he did not suggest that any abuses took place in the New York case or in the Ferguson, Mo., case that resulted in a grand jury last week declining to indict a white cop for fatally shooting an unarmed black teen.
"It is concerning that everything is in the hands of the prosecutor," Chotiner said.
"We all know that if it were an ordinary citizen and you choke somebody and you kill them, you're being charged. But it just seems with police officers there's a different way of handling it, and one way is to provide a certain bit of political cover between the prosecutor and the decision as to whether or not to charge," Chotiner added.
Garner, 43, was confronted on a Staten Island sidewalk by Pantaleo and other officers who accused him of illegally selling cigarettes.
A cellphone video of the incident showed the 350-pound father of six vigorously arguing his innocence, asking to be left alone and resisting arrest without violence by backing up and holding his hands up, as if to show that he was not armed.
Pantaleo is then seen grabbing Garner in a chokehold move that is banned by the New York City Police Department, and taking him down as other officers swarm in.
Despite the video evidence, Staten Island District Attorney Daniel Donovan said the grand jury found "no reasonable cause" to bring charges.
"I am actually astonished based on the evidence of the videotape, and the medical examiner, that this grand jury at this time wouldn't indict for anything," Garner's family attorney, Jonathan Moore, told the Associated Press.
The medical examiner ruled that Garner's death was a homicide, with the chokehold a contributing factor.