Lynch’s heavy lift
By handing off the case to a new team of prosecutors 22 months in, U.S. Attorney General Loretta Lynch has just signaled that the federal case against NYPD Officer Daniel Pantaleo in the chokehold death of Eric Garner is flailing, perhaps fatally. Lynch’s decision to wrest responsibility for possible prosecution from the veteran New Yorkbased team of federal career prosecutors who had reportedly concluded they had insufficient evidence to win in court, and to hand it over to a new DC-based Justice Department team, bodes ominously for those who had vested hope in the feds for a measure of justice the local district attorney did not deliver.
For the sake of Garner’s grieving family, and for the sake of public trust in the self-correcting powers of law enforcement, the civil-rights inquiry must now plow ahead with proper precaution and an understanding that even indictment would far from guarantee result.
Lynch owes it to New York City to speak forthrightly, uncontaminated by politics or false hope, about where the evidence and the law lead.
As the world saw on chilling video shot by a bystander, Pantaleo applied pressure to Garner’s neck and threw him to a Staten Island sidewalk in a July 2014 arrest gone tragically wrong.
Captured too on the video were Garner’s last gasps on the asphalt and his chilling repeated final words: “I can’t breathe.”
Though the city medical examiner ruled the death a homicide, a Staten Island grand jury declined to indict Pantaleo on criminal charges. A $5.9 million settlement with city Controller Scott Stringer to head off a civil trial came as no substitute to a finding by a jury of legal responsibility for Garner’s death.
Under federal law, Lynch confronts the monumental challenge of proving that when Pantaleo confronted Garner, he did so with the intent of depriving Garner of his civil rights. Pantaleo testified to the Staten Island grand jury he never intended harm, his lawyer has said.
Prosecutors would have to prove additionally that the force Pantaleo exercised against Garner was in fact unreasonable.
The extremely high legal burden in proving civil rights violations by law enforcement officers leaves DOJ declining to prosecute all but a small fraction of the complaints it receives.
With Pantaleo, that task is now likely made harder still with news of an intra-agency schism that could potentially allow defense attorneys to surface evidence that prosecutors knew about weaknesses in their case.
If the new team of prosecutors cannot build what they in good faith believe to be a winning prosecution, they must ultimately stand down.
Lynch is right to give the case what appears to be a final, fighting chance under a set of fresh prosecutorial eyes. Her ultimate decision must be based on a good-faith judgment of whether they can leap over a high legal bar.