Regardless of his intent, Police Officer Daniel Pantaleo engaged in criminal conduct when he failed to release Eric Garner, first from a chokehold and then while restraining him on ground as the Staten Island man 11 times moaned that he couldn't breathe before he died, a prosecutor with the Civilian Complaint Review Board said during her closing arguments on June 6, the seventh and last day of the officer’s administrative trial.
For that, CCRB Deputy Chief Prosecutor Suzanne O’Hare said, Officer Pantaleo should be fired without benefit of his pension.
“Police Officer Pantaleo forfeited his right and privilege to be a member of the New York Police Department,” she said during her lengthy summation.
‘Lies and Misstatements’
But Stuart London, one of the officer’s two lawyers, said it was Mr. Garner’s underlying health issues—obesity, an enlarged heart and asthma among them—that led to his death on July 17, 2014, as Officer Pantaleo and his partner moved to arrest the 43-year-old for selling loose untaxed cigarettes in Tompkinsville. He said both the prosecution’s contention and the city Medical Examiner’s conclusion that Officer Pantaleo used a department-prohibited chokehold when Mr. Garner resisted being taken into custody amounted to deceit.
“Whether it was the lungs or the heart, it doesn’t matter; it wasn’t compression of the neck,” he said. “It’s time to end the lies and misstatements.”
As he had on several occasions since his client’s administrative trial began May 13, Mr. London said Mr. Garner precipitated his own death by not complying with police.
“His poor health and his desire not to acquiesce [to officers’ commands] is what caused his death,” he said. “If Eric Garner had merely accepted the summons, we wouldn't be here today.”
For Mr. Pantaleo to be found guilty, the two CCRB prosecutors, Ms. O’Hare and Jonathan Fogel, had to show that the officer committed either third-degree assault by recklessly causing injury or was guilty of strangulation in the first degree, and not just that he violated the NYPD’s Patrol Guide by using a banned chokehold. But they needed to do so according to civil trial rules; that is, by citing evidence and eliciting testimony that, ultimately, convinces Deputy Commissioner of Trials Rosemarie Maldonado through a preponderance of credible evidence rather than by proving guilt beyond a reasonable doubt.
Following the testimony of NYPD officers, including that of Officer Pantaleo’s partner during the incident and of colleagues at the 120th Precinct, medical examiners and witnesses to the confrontation, autopsy photos and untold showings of video and still pictures of the confrontation during what was essentially a public trial at Police Headquarters, Judge Maldonado gave the attorneys until June 14 to submit post-trial briefs.
She also will read through the transcript of Officer Pantaleo’s 2014 interviews with the NYPD’s Internal Affairs Bureau before issuing her decision and, if she finds him guilty, her suggested punishment.
Judge Maldonado will forward her findings to Police Commissioner James P. O’Neill, who will make the final decisions as to guilt or innocence and punishment. According to the NYPD’s interpretation of a section of state civil-rights law, both Judge Maldonado’s findings and Commissioner O’Neill’s conclusions are to remain confidential.
Witness: Not a Chokehold
On the trial’s penultimate day, a retired NYPD Sergeant who supervised recruit tactics and training at the Police Academy, including during Officer Pantaleo's time there, said the technique the officer used to subdue Mr. Garner was not a chokehold but a so-called seat-belt maneuver, which does not involve contact with a subject’s neck.
“That’s the first thing I said when I saw the video,” Russell Jung, a paid witness, said on June 5.
He and the City of St. Louis’s Chief Medical Examiner, Dr. Michael Graham, were the last witnesses called by the defense.
Mr. Jung’s testimony contradicted that of Inspector Richard Dee, the Commanding Officer of the Recruit Training Section at the Academy, who testified during the trial’s second day that the maneuver Mr. Pantaleo was seen putting on Mr. Garner met the definition of a chokehold.
Dr. Graham also testified that from what he saw on video, as well as what he gathered from the autopsy report, that Officer Pantaleo did not appear to be using a chokehold.
“There’s no loss of consciousness,” he said. “It can’t be compression of the neck...The fact of the matter is he could breathe.”
He said that Mr. Garner’s obesity, enlarged heart and high blood pressure could have all been contributing factors to his death.
“That was exacerbated by his interactions with law enforcement,” he said in response to questions from defense attorney John Tynan. “There’s a lot of factors involved in this.”
Using autopsy photos as well as questioning, Ms. O’Hare several times tried to steer Dr. Graham to suggest that the officer used a maneuver that would have impeded Mr. Garner’s ability to breathe. He replied that Mr. Garner’s death could have been brought about by “a lot of things.”
But the trial’s final witness, the city’s First Deputy Chief Medical Examiner, Jason Graham, testifying June 6, reiterated conclusions by his colleague, Dr. Floriana Persechino, the forensic pathologist with the city’s Medical Examiner’s Office who performed the autopsy of Mr. Garner’s body and testified early in the trial, that Officer Pantaleo’s use of a chokehold “set in motion a fatal cascade of events.”
Mr. London, in his summation argument, disputed as much, calling the autopsy “a political document.”
Mr. Garner, he said, was “a ticking time bomb.”
We depend on the support of readers like you to help keep our publication strong and independent. Join us.