A Trial Out of Kafka: Garner-Case Verdict Must Remain Secret

The disciplinary trial of Police Officer Daniel Pantaleo on administrative charges that he precipitated Eric Garner’s death by using a department-prohibited chokehold, underway since May 13, is proceeding like any other case: Witnesses and experts testify, evidence is introduced, cross-examinations are carried out, objections are raised, a judge gavels for order, all within an ostensibly public forum at Police Headquarters.

Conducted under the auspices of the city’s Civilian Complaint Review Board, an all-civilian panel, and prosecuted by that panel’s lawyers, it is being overseen by an Administrative Law Judge from the NYPD.

NYC Confidential

But the proceeding’s denouement, when it does come, will be anything but public.

Because of a provision within state Civil Rights Law, Section 50-a, that shields the disciplinary records of police officers from public view, the administrative judge, NYPD Deputy Commissioner of Trials Rosemarie Maldonado, cannot publicly release either her determination of Mr. Pantaleo’s guilt or innocence or the report outlining what led to her conclusion. Nor will the public be told, if he is found guilty, of Mr. Pantaleo’s punishment, which will be decided by Commissioner James P. O’Neill.

There is of course the probability that the decision and penalty—if any—will be leaked. But other than Mr. Pantaleo and his lawyers agreeing to release the decision and  outcome, the verdict in one of the most-anticipated trials in recent city history must by law be kept confidential.

All of which approximates a performance by the Theatre of the Absurd.

‘Outrageous’

“It’s like a parallel universe,” Joo-Hyun Kang, the director of the city-based activist organization Communities United for Police Reform, said of Officer Pantaleo’s trial, which is being held in a room that can seat about 65 people. Which means that as many as several dozen people, whether from the Garner family, advocates, the press, or departmental colleagues of Mr. Pantaleo are on any given day prevented from attending. Such is the reach of 50-a that trial transcripts are not publicly available, “which in itself is outrageous,” Ms. Kang said.

The NYPD’s increased citation of 50-a in recent years as a reason to not release records, documents and decisions, as well as subsequent court rulings that have strengthened the law’s non-disclosure provisions, has in effect built a moat around the department, she said, a development that’s come fully into focus during this trial.   

Expanded interpretation of 50-a in the last few years, Ms. Kang said, “serves as a shield to protect and hide police misconduct and discipline from the public.”

Although Ms. Maldonado’s decision and even Mr. Pantaleo’s ultimate punishment are likely to be disclosed, however surreptitiously, the key document in the case—the Deputy Commissioner of Trials’ report—will essentially disappear.

And that record, Ms. Kang said, is “just as important” to the Garner family and to the public as the outcomes, “because that will include her findings...based on evidence and the overall trial and her understanding of the case.”

Fundamental Change

In December, the state Court of Appeals, citing Section 50-a, ruled against the New York Civil Liberties Union, which had sought opinions from the Deputy Commissioner of Trials in cases where charges against officers had been substantiated, and also the nature of the discipline imposed against those officers.

In a subsequent opinion piece published in City and State, Assemblyman Dan Quart, a Manhattan Democrat and former criminal-trial attorney, and Cynthia Conti-Cook, a staff attorney with the Legal Aid Society, argued that the ruling gave “little weight to the public interest,” and ultimately worked to undermine the public’s trust in policing and the justice system, particularly within communities that have uneasy relationships with police.

Mr. Quart, who has called for changes to 50-a, earlier this year said the law has allowed a “broken,” “Byzantine” and “opaque” disciplinary system to take hold within the NYPD.

Disciplinary records, he said during a March rally at City Hall, that should be subject to public scrutiny are instead shielded from view. “That certainly is absurd,” he said in an interview last week.

While the CCRB is a city agency whose parameters are set by the City Charter, repealing at least portions of 50-a would have a domino effect, he said.

“By repealing it, it would fundamentally change the Police Department’s disciplinary process and trials that take place at CCRB,” Mr. Quart said.

For now, though, many of the police records tied to the death of Mr. Garner can’t even be referenced during open court, he said.

Mockery of the Process

Ms. Conti-Cook, an outspoken critic of 50-a, said the law makes a mockery of what should be an entirely public process given the power of police over residents.

“It absolutely undermines trust and confidence in the police,” she said, adding that it also undercuts confidence in those elected officials who carve the laws.

“The idea of being a licensed professional is if you mess up in a serious way, your license will be revoked, that there will be some public accountability process for penalizing you...The kind of trust that the public gives to the state to do that licensing is the same kind of trust the public gives the state to give a cop a badge and a gun,” Ms. Conti-Cook said. “And if we can’t trust the state, and we don’t have access to information that would support that trust because of 50-a, how will we know if they are capable of holding officers accountable for serious uses of force?”

She emphasized that Officer Pantaleo was facing administrative charges and not criminal charges.  The most he can be punished through this process is loss of his job, or perhaps his pension.

“There has to be some equilibrium between the transparency that all of our public employees face when they are administratively punished and the penalties that our most empowered, weaponized public employees face, which is the police,” she said.

Lynch: Claims a Ruse

The Police Benevolent Association’s president, Patrick J. Lynch, who has been vehemently opposed to changes in the law, said Officer Pantaleo’s trial demonstrates that those advocating for a weakening of 50-a are not so much interested in increased transparency as they are in further maligning police.

“The media and various interested parties have been given the opportunity to hear for the first time the full and complete evidence in the case, and yet the prevailing narrative has not changed,” he said in a statement. “Evidence that complicated or challenged that narrative has been ignored or downplayed, while any out-of-context quote that could be used to vilify the individual police officers involved has been played up in front-page headlines. Those who are pushing for unfettered access to police discipline records are not on a quest for truth. They are not looking to enhance accountability or improve the police discipline process. They are either trying to generate clicks and sell newspapers, or they are furthering their ultimate goal of completely delegitimizing law enforcement."

Momentum to Amend

But Officer Pantaleo’s trial and its attendant opacity have lent momentum to efforts to curtail 50-a, Ms. Conti-Cook said.

The trial, she said, “really has reminded legislators and New Yorkers how absurd and how unjust it is that [Eric Garner’s mother] Ms. Gwen Carr, five years after his death, is not going to have any kind of accountability, justice or transparency about what happens to Pantaleo.”

Amending 50-a, but not outright repeal, also has support from a perhaps unexpected source: Commissioner O’Neill.

Following the February release of a report by a panel of law experts that, in part, concluded that the department’s use of 50-a “keeps the public in the dark about police discipline, breeds mistrust, and reduces accountability,” Mr. O’Neill said that he supported the law’s “reform.”

The department, he said, had a responsibility to open up its disciplinary process by releasing names, charges, documents and dispositions. “As with everything,” he said at the time, “trust is key here and it hinges on accountability and transparency.”

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