During his hour of cross-examination May 15 of Floriana Persechino, the city Medical Examiner who concluded that Police Officer Daniel Pantaleo used a chokehold that was a contributing factor in Eric Garner’s death, the cop’s attorney, Stuart London, sought to establish two points: that Mr. Garner was in such poor health that any stressful confrontation could have been fatal, and that if he hadn’t resisted arrest, he might still be alive.
He was still pressing the latter issue on his final question of re-cross, asking Dr. Persechino, “If he had just accepted a summons for [selling] untaxed cigarettes, none of this would have—”
“Objection!” shouted Suzanne O’Hare, the Civilian Complaint Review Board attorney prosecuting the case in the NYPD Trial Room. She was upheld by Rosemarie Maldonado, the NYPD’s Chief Judge, and that was it for the third day of the case that will decide Officer Pantaleo’s future.
The essence of Mr. London’s cross had been that Mr. Garner, who at the time of his death on July 17, 2014 weighed 395 pounds and also carried around diabetes, asthma and an enlarged heart, had been victimized by his own poor judgment.
Plenty of Company on That Score
The hole in that argument, valid as it might be when examined in isolation, was that so many people in law enforcement who have been involved in the case also showed themselves lacking in that quality in dealing with Mr. Garner and the fallout from his death on a Staten Island street.
The obvious culprit is Officer Pantaleo, who given his eight years in the department at the time might have been expected to show better judgment when Mr. Garner brushed away his hand that had tried to cuff him than to escalate the confrontation, initially by attempting to use a seat-belt hold that is taught in the Police Academy but then, when his antagonist proved too beefy to be brought under control that way, resorted to a choke-hold.
Expand the circle to the other cops who, after Mr. Garner was yanked to the ground, sought to immobilize him by sitting on him while Mr. Pantaleo pressed his face into the pavement, yet after Mr. Garner’s repeated cries of “I can’t breathe,” seemed oblivious, once he was cuffed and unconscious, to the possibility that he was in serious physical distress. And a private ambulance crew that responded to the scene about 10 minutes after he went down displayed a similar lack of urgency, with one female Emergency Medical Technician acting as if Mr. Garner was pretending to be unconscious, telling him with some impatience, “We’re here to help.”
Go higher in the NYPD command and you have someone giving the order to make arrests for selling loosies, based on complaints by local merchants that this was cutting into their cigarette sales of entire packs. When Officer Justin Damico approached to make the arrest along with Officer Pantaleo, Mr. Garner vigorously protested, “I’m just minding my business…I didn’t sell anything.”
At least two people, including Ramsey Orta, who shot the video of the fatal confrontation, can be heard telling the cops that rather than plying the trade that had previously gotten him arrested more than 30 times, Mr. Garner had broken up a fight between two other men shortly before the officers approached him.
The NYPD is normally good enough about getting out information and video when it will help it defuse controversial incidents that its failure to clarify whether the arrest was being made for an illegal sale a short time before or concerned an incident a day or two earlier looks damning. However annoying the selling of loose cigarettes may have been to local businessmen with actual storefronts, most citizens—and most cops—would likely view it as a chicken-poop crime. And so collaring someone for that sort of thing left over from a previous day would make the case that the Broken Windows Theory of policing that then-Police Commissioner Bill Bratton subscribed to had been pushed into the realm of Mickey Mouse, only with a tragic ending.
Case for Consumer Affairs
At the time, Gene O’Donnell, an ex-cop turned college professor who’s never shy about defending street cops who wind up in untenable situations, questioned why the merchants’ complaints hadn’t been handed off to the Department of Consumer Affairs, which normally would enforce the law against selling untaxed cigarettes. The answer appears to be because the loosie crackdown had been ordered by then-Chief of Department Philip Banks, whose elevation to the NYPD’s highest uniformed post by ex-Commissioner Ray Kelly was spurred by political considerations rather than achievements.
By the time he retired four months later rather than accept Mr. Bratton’s offer of a lateral transfer to the civilian position of First Deputy Commissioner, Mr. Banks had compiled an unnerving collection of relationships with people who have since been convicted of Federal corruption charges, from then-Correction Officers’ union President Norman Seabrook to bribery specialists Jona Rechnitz and Jeremy Reichberg to the restaurateur and Ponzi-scheme dabbler Hamlet Peralta. Somehow he escaped indictment, even after the smaller fish had motive to try to trade him in for leniency, but for all the bad company he kept, the order to arrest petty criminals like Eric Garner was perhaps his signature abandonment of common sense.
Slide over from there to the Staten Island District Attorney’s Office. The circumstances of Mr. Garner’s death had created an uproar in the city, and would have even if there hadn’t been several other questionable deaths nationally of unarmed black men in struggles with white cops around the same time.
Arnie Kriss, a veteran prosecutor who during Ed Koch’s first term as Mayor served as the NYPD’s Deputy Commissioner for Trials, said at the time and repeated in a May 15 interview that obtaining an indictment of Officer Pantaleo should have been “a no-brainer” based solely on the video that had quickly gone viral. That didn’t assure a criminal conviction, Mr. Kriss said then, but the lower standard needed to gain an indictment should have made one inevitable.
Yet on Dec. 3, 2014, the DA’s Office reported that the grand jury it impaneled decided not to indict the cop.
Did Politics Sway Donovan?
There’s at least a chance that another indictment, this one of then-Congressman Michael Grimm, had complicated matters for Mr. Donovan.
Mr. Grimm a month earlier had been elected to his third term despite having been charged by Federal prosecutors with tax evasion in connection with the operation of his Manhattan restaurant, Healthalicious, that included underreporting its earnings, paying employees off the books to reduce the restaurant’s state and Federal tax obligations and filing fraudulent returns, and knowingly employing undocumented immigrants. There had been growing speculation about whether he could effectively serve his constituents, loyal as they had remained even after he threatened to throw NY1 reporter Michael Scotto off a balcony if he ever again asked him about the investigation.
Less than three weeks after the grand jury opted not to indict Officer Pantaleo, Congressman Grimm pleaded guilty to a single tax-fraud count. A few days later, he resigned from Congress; at that point Mr. Donovan was already the Republican front-runner to replace him, and he won a special election the following spring.
There’s never been any concrete evidence that the DA or his staff did not present the case as vigorously as prosecutors would in such a high-profile case. But given the sentiments among many white residents in the city’s most conservative borough, Mr. Donovan would have risked a political backlash had he indicted Officer Pantaleo, one that could have compromised his chances of getting the GOP nomination or winning the special election.
It’s telling that during last year’s general election (after Mr. Grimm served his jail time and then launched an unsuccessful comeback in the Republican primary), Max Rose never raised Mr. Donovan’s handling of the Garner case against the former DA, suggesting he had done polling that showed he was more likely to win—as he did last November—if he left it alone.
De Blasio’s Dubious Moves
No list of those exercising questionable judgment in connection with the case would be complete without Mayor de Blasio’s name on it. On the evening that the grand jury’s decision was announced, he spoke to a black congregation in Staten Island that was understandably upset that no criminal charges were brought against Officer Pantaleo.
Rather than criticize either the ruling or Officer Pantaleo’s actions or the other cops’ lack of urgency about summoning medical help for Mr. Garner, the Mayor offered a personal account of how he and his wife Chirlane had spoken to their then-17-year-old son Dante about “the dangers he may face—we’ve had to literally train him, as families have all over this city for decades, in how to take special care in any encounter he has with the police officers who are there to protect him…There are so many families in this city that feel this every night: is my child safe?”
He was trying for empathy, rather than giving them something more substantive, such as a guarantee that Mr. Pantaleo at the end of the process would no longer be a cop—something Mayor Rudy Giuliani did in a 1998 press conference regarding a cop and two firefighters who during a parade in their Queens neighborhood created a mocking re-enactment of the dragging death of a black man by white racists in Texas. But Mr. de Blasio’s remarks brought an angry response from Police Benevolent Association President Pat Lynch, who said the next day, “He spoke about [how] we have to teach our children… that they have to be afraid of NYC police officers, and that’s not true…What police officers felt yesterday after that press conference is that they were thrown under the bus.”
The union’s fury with the Mayor was compounded when, 17 days after he made his remarks, two officers were murdered while sitting in their patrol car by a man from Baltimore with an extensive criminal record and a history of mental problems who stated on social media prior to killing himself that he intended the assassinations to be revenge for the police-involved deaths of Mr. Garner and Michael Brown in Ferguson, Mo.
One oddity is that Mr. de Blasio has never excoriated Mr. Panteleo in the way that he did Sgt. Hugh Barry for fatally shooting Deborah Danner in October 2016 after the woman with a history of schizophrenia lunged at him while swinging a baseball bat. He called that an example of what happens “when an individual does not follow their training, does not follow their instructions.”
A Cheap Shot
Given that Sergeant Barry had taken the time to try to persuade Ms. Danner to drop a scissors she had been brandishing and got her to do so just before she abruptly grabbed the bat, this was a harsh oversimplification of what had occurred. It also was a case in which, in contrast to Officer Pantaleo at the time he wrapped his arm around Mr. Garner’s neck, the cop involved faced imminent serious harm if he hadn’t used deadly force.
The Mayor and then-Police Commissioner Bratton, as reporters began digging into Mr. Pantaleo’s disciplinary record after portions of it were leaked by a CCRB employee, suddenly announced in 2016 that for the previous 40 years, the NYPD had been violating Section 50-a of the state Civil Rights Law by giving the media information about internal disciplinary cases. A challenge to such disclosure had been rejected by Manhattan Supreme Court Justice Alice Schlesinger, but the administration opted to appeal it and got her ruling overturned.
It was a curious move given that both the Mayor and his Police Commissioner had spoken of the need to build greater trust between the department and minority communities. Then again, those disciplinary cases offered information that sometimes reflected as poorly on those at the top of the NYPD as it did on the cops who were the defendants.
One example involved a lawsuit filed against the department on behalf of two men who alleged that they were stopped by Officer Pantaleo and the Sergeant with whom he was riding and strip-searched on a Staten Island street, with one of the two cops then flicking their genitals in what was purported to be a check of whether they had hidden drugs there. The case was settled for $30,000—more than what you’d expect if the claim was frivolous, particularly because the plaintiffs each had criminal records—but not so much that it was certain that city lawyers had concluded they could face far-greater liability, monetarily and from a public-relations standpoint, if the case had gone to trial.
Indications were that the internal penalty for Mr. Pantaleo had been minor. This raised the question as to why someone higher up in the chain of command had concluded that a few lost vacation days would be enough to alter his behavior. A cop who had either been the flicker or watched as his fellow officer conducted that highly improper search and didn’t report it to superiors might not be psychologically fit for patrol work.
Soft on Chokeholds
Questions arose following the Garner killing about the lack of punishment cops received for using chokeholds. The New York Times found that in nine cases over the final five years of Ray Kelly’s tenure as Mayor Michael Bloomberg’s Police Commissioner, the CCRB had substantiated nine claims that officers had used the hold that the department banned in 1993, when Mr. Kelly was in his first go-around as Commissioner for Mayor David Dinkins, but only one of them was penalized—and that was with the loss of a few vacation days. Might that soft-on-chokeholds approach have lulled cops like Officer Pantaleo into believing the ban wasn’t something they had to take seriously?
Mr. Bratton was similarly lax in his two-plus years as Mr. de Blasio’s Commissioner, even though he had been on the job under Mr. Giuliani at the time of an even-more egregious case involving the strangulation of Anthony Baez in December 1994 by Police Officer Frank Livoti, a cop with a history of brutality who was still on patrol only because of his clout as a PBA delegate and had ingratiated himself with the Bronx Borough Commander, Lou Anemone, who defended him after Mr. Baez’s death as the kind of “active cop” you needed in high-crime precincts.
The tragic element of Santayana’s line about those who fail to learn from history being doomed to repeat it was on display in the NYPD Trial Room, where Mr. Garner’s mother, Gwen Carr, was seated alongside Iris Baez, Anthony’s mother, as Mr. London tried to counter the testimony from Dr. Persechino.
“Would it be a fair comment, doctor, to say that Eric Garner did not die of a chokehold?” he asked.
She replied, “He did not die of the chokehold in and of itself.”
“He never lost consciousness when my client’s arm was around his neck, correct?” Mr. London said. He got her to acknowledge that Mr. Garner’s heart was significantly enlarged, which he said “puts him in a compromised position when any kind of stress” is introduced.
He noted that Mr. Garner was already sweating on the hot July day when he insisted to Officer Damico that he had not been selling loosies and would not submit to arrest. “Is that putting additional strain on his already-compromised cardio-respiratory system?” he asked, then added, “None of that would have been set in motion had he not resisted arrest.”
‘Chokehold With Forearm’
Sparring with her about the chokehold that he has long claimed his client never used, Mr. London asked whether it was “an arm-bar chokehold.”
“This was a chokehold with the forearm,” Dr. Persechino replied. Moments later, she said, “The forearm is consistent with the broadband of hemorrhage in Garner’s neck.” She went on to tell the lawyer that it was the first case in which she had certified a chokehold as a factor in a death because “this is the first autopsy from which I had video of the chokehold.”
But she also acknowledged the crucial role of cops pinning Mr. Garner to the ground with their bodies while getting him handcuffed—with Officer Pantaleo mashing his face into the pavement once he brought him down—had played in leading to the heart attack he suffered while being finally transported to the hospital.
“The prone position in a morbidly obese individual is a problem,” Dr. Persechino testified. “His organs are all now pressing upward against the diaphragm.”
Even before her testimony, Mr. London had faced an uphill legal battle on behalf of Officer Pantaleo after Deputy Inspector Richard Dee, the Commanding Officer of the Police Academy, said a day earlier that Mr. Orta’s video of the incident depicted the cop engaged in what he said “meets the definition of a chokehold.” That opinion, and the initial pronouncement of Mr. Bratton along those same lines nearly five years ago before he retreated under criticism, figure to outweigh Mr. London’s argument that it remained a seat-belt hold all the way to the ground.
Outside Police Headquarters, Mr. Garner’s mother said, “There are other officers involved in my son’s death…who lied on official reports. Mayor de Blasio has been blocking this case for five years…Stop playing games with us.”
Charges to Justify Firing
Mr. Kriss said in a phone interview later that afternoon that Ms. Maldonado’s ruling a week earlier that because the CCRB had not filed charges against Officer Pantaleo within 18 months of the incident, he would have to be convicted of a crime rather than merely an administrative violation to face discipline should not be an obstacle.
There were four possible charges, some of them misdemeanors, of which he could be convicted, he said: Assault in the Third Degree, Manslaughter, Criminally Negligent Homicide, and Reckless Endangerment “for failure to render medical attention” after Mr. Garner was subdued. (At the time of the incident, Professor O’Donnell, usually a critic of the way the department lets street cops take the fall in high-profile cases, called the lack of urgency displayed by every cop at the scene “unforgivable. After your adversary is down, you have to switch into life-saving mode.”)
Mr. Kriss said, “From the beginning, there’s been bumps in the road in terms of the department’s handling of the case. What did the cops observe to create probable cause to make an arrest?…It’s still a great department, but they make mistakes. And the city pays.”
But, he continued, the reason justice has been denied for so long is the failure of the Staten Island DA’s Office to persuade the grand jury nearly 4 ½ years ago. “This is a case that should have been indicted and tried and then, if the verdict had been not guilty, it would have gone back to the department, with the ultimate penalty being firing,” Mr. Kriss said.
He concluded, “If it is proven that Pantaleo willfully took a life, in an employer/employee situation, the Police Department would have to act.”
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