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Unlike Ferguson, Staten Island Grand Jury Testimony Isn't Made Public

STEVE INSKEEP, HOST:

So we don't know what happened in the grand jury room, but we can explore the grand jury process with former Federal Prosecutor Roger Fairfax.

Is there a conflict of interest here because prosecutors work so closely with police officers? And the prosecutor of course is the person who's in charge of the grand jury.

ROGER FAIRFAX: Well, I think it's fair to say that both the Ferguson case and the Staten Island case highlight the value in having an outside entity conducting investigation and prosecution in cases like these. Prosecutors, because of their close working relationship with police officers, sometimes are not sufficiently at arm's length to conduct an unbiased investigation. And they undoubtedly worry about alienating their colleagues of law enforcement.

INSKEEP: Let me ask about one other thing that was said by the head of the police union. We heard mention of it in the report just now. He said Officer Pantaleo did not mean to kill anyone. He also said something else. He alleged that Pantaleo used a technique that he learned in the police academy. We don't know if that's strictly true, but it's what the police union head said. Are those things legally relevant?

FAIRFAX: Well, since the early 1990s chokeholds have been against NYPD policy. And the patrol guide - the NYPD patrol guide states, and I quote, "members of the New York City Police Department will not use chokeholds."

INSKEEP: Right, but my question is he seems to - or at least the police union seems to claim that Pantaleo thinks he was doing whatever he was trained to do. If in fact that was the case, would that get him off?

FAIRFAX: Certainly that might have been something important to grand jurors in their consideration. Some have speculated that manslaughter charges were among the charges presented. One form of manslaughter in New York State requires the intent to cause serious physical injury to another person. Another form of manslaughter, a lesser form, requires that the person recklessly caused the death of another person.

INSKEEP: Would it be any easier under federal law to pursue a case like this?

FAIRFAX: Well, there could be a federal prosecution if the Justice Department investigation that Attorney General Holder discussed yesterday leads to that. It's customary in New York for the feds to wait until the state criminal process has run its course. There's a federal statute which makes it a federal crime to deprive someone of their federal civil rights while acting under a color of law, and this is not new. In fact the Justice Department earned a great deal of the prestige it enjoys today during the 1960s when federal law enforcement agents and federal prosecutors were dispatched to various Southern states to seek federal convictions when the state criminal justice actors were unable or unwilling to hold accountable those engaged in civil rights deprivations. The same statute was used to prosecute and convict two of the officers involved in the Rodney King case. Interestingly if the federal prosecutors pursue the case, the federal grand jury will be drawn from some of the same geographic regions as in the Eric Garner state case. However, the federal grand jury has a much larger (inaudible) area. Not only Staten Island, but also Brooklyn, Queens and parts of Long Island as well.

INSKEEP: In other words, you're saying they would be drawn from a more racially diverse area than Staten Island has been.

FAIRFAX: Possibly.

INSKEEP: Roger Fairfax, thanks very much.

FAIRFAX: Thank you.

INSKEEP: He's a former prosecutor who now teaches law at George Washington University. Transcript provided by NPR, Copyright NPR.