‘YOU NEED THE PROCESS TO WORK’: ‘The thing that turned me off,’ said former NYPD Deputy Commissioner for Trials Arnold Kriss of the handling of the Eric Garner case, ‘is this guy’s on the ground and you’ve got three other cops holding him, and what Pantaleo said he did isn’t what you see on the video. It may not have been enough for a conviction, but there was certainly enough for an indictment.’

A former prosecutor who also served as the NYPD’s Deputy Commissioner for Trials said in the wake of Staten Island District Attorney Daniel Donovan’s failure to secure a grand-jury indictment against Police Officer Daniel Pantaleo in the death of Eric Garner that a special prosecutor should be named to handle such cases as a way to restore public confidence in the judicial system.

‘The Process Was Denied’

Arnold Kriss, a veteran attorney who worked from 1973 to 1978 as an Assistant District Attorney in Brooklyn and spent nearly four years in the NYPD Trial Room as a Special Counsel to Police Commissioner Robert J. McGuire and then as the department’s top judge, said in a Dec. 4 interview that while he didn’t know what transpired in the grand-jury room, based on the videotape of the fatal encounter, “The [judicial] process was denied here” when no indictment was brought.

Referring to an account that Mr. Pantaleo’s attorney, Stuart London, gave to the New York Times regarding his client’s grand-jury testimony that once he brought Mr. Garner to the ground using what appeared to be a chokehold he released him as quickly as he could, Mr. Kriss said his viewing of the videotape of the incident indicated that Mr. Pantaleo had actually persisted in pushing Mr. Garner’s face into the ground despite his cries of “I can’t breathe!” while other officers got him under control and in handcuffs.

“The thing that turned me off,” Mr. Kriss said, “is this guy’s on the ground and you’ve got three other cops holding him, and what Pantaleo said he did isn’t what you see on the video. I have a real problem that there was no indictment for criminally-negligent homicide. It may not have been enough for a conviction, but there was certainly enough for an indictment.”

Mr. Donovan had asked Staten Island Supreme Court Justice Stephen L. Rooney to authorize the release of limited portions of the grand-jury proceedings, which normally are kept secret. Justice Rooney the day after the Dec. 3 finding of “no true bill” for an indictment by the 23 grand jurors allowed a decidedly limited amount of information to be publicly released. It focused primarily on the number of witnesses called and the fact that 28 of the 50 who testified were either police officers, emergency medical personnel or doctors, as well as the length of the proceedings, the number of exhibits considered, and the instructions the jurors received on the law governing police officers’ use of force.

Mr. Kriss said that wasn’t good enough, given the disparity between what the videos of the confrontation showed and the lack of any criminal charges, with Officer Pantaleo not the only one who could have been indicted, he said.

Delays in Treating Him

A second, more-detailed video showed the aftermath of Mr. Garner, after being brought to the ground and immobilized, lying there surrounded by cops, none of whom made any attempt to give him medical attention. When four private ambulance workers arrived at the scene, they offered virtually no medical assistance to Mr. Garner for a couple of minutes before cops lifted him onto a gurney and he was carried into an ambulance. Mr. Garner suffered a fatal heart attack en route to the hospital; the city Medical Examiner classified the death as a homicide and cited as possible factors the use of a chokehold, pressure on Mr. Garner’s chest, the fact that he was extremely overweight, and his suffering from asthma and high blood pressure.

The four emergency medical workers were all suspended without pay by Staten Island University Medical Center five days after the July 17 incident. Mr. Kriss said that his viewing of the videotape indicated that some of the cops besides Officer Pantaleo were also negligent, and he questioned Mr. Donovan’s decision to grant immunity to all the police officers at the scene other than Mr. Pantaleo in return for their testimony.

Among the unanswered questions, he said, is, “How challenging was the examination?” by the DA’s Office of Mr. Pantaleo and the account he gave of his actions and why he took them. The key points came after Mr. Garner brushed off his initial attempt to handcuff him while continuing to argue with the first officer who had approached him, Justin Damico, for allegedly selling untaxed cigarettes near the Staten Island Ferry Terminal.

‘A Failure to Supervise’

“We don’t know what these cops said in there,” Mr. Kriss said regarding their grand-jury testimony. “The inner ring of the people who held Garner down, I don’t think I would have immunized them. And in the second ring, I saw a Sergeant standing there, I saw someone in a suit who may have been a Detective. Where was the Sergeant, where was EMS in terms of the failure to give [medical] attention? Maybe Donovan was careful; I don’t know. But I certainly would want to know why there were no charges for the supervisors in the second ring. You had a female Sergeant there—why didn’t she take control? I don’t know why they didn’t have time to call [the NYPD’s] Emergency Services [Unit]. I think there is a failure of supervision.”

He added, “This case based on that film should have been heard in full” during a trial. “I think the city was failed here.”

There are arguments to be made for a special prosecutor based solely on questions as to whether District Attorneys face a conflict of interest in bringing cases against police officers carrying out their regular duties: they depend on cops’ cooperation on a daily basis in making cases against criminal suspects, and they benefit politically from the support of the police unions. Mr. Kriss, noting that 40 years ago as a young Assistant District Attorney he had helped secure an indictment against Police Officer William Walker in the fatal shooting of a young black man who tried to flee the scene of a traffic stop (the officer was acquitted at trial in Brooklyn Supreme Court but later fired by the NYPD), said that a conscientious District Attorney’s Office could successfully bring indictments in such cases.

‘Need Special Prosecutor’

But, he added, “I think the public has to get confidence restored” in the wake of last week’s decision by the Staten Island grand jury not to charge Officer Pantaleo. “I think you need a special prosecutor, not because [the DAs] aren’t capable of doing it, but the public needs the reassurance” of no ongoing relationship between those presenting the case and those they would be looking to indict and convict.

“Whatever the result,” Mr. Kriss concluded, “you want the process to work. It didn’t work in Ferguson; it didn’t work here.”


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