Updated: 5:02 pm, Mon Jun 22, 2015


Advocates, Staten Island DA At Odds Over ‘Garner’

Appellate ‘Minutes’ Battle


Attorneys for Public Advocate Letitia James and three advocacy groups urged a state Appellate Division panel at a hearing June 16 to open up records of the Eric Garner grand jury, an action they said would answer questions about whether the criminal-justice system had performed fairly and inform debate about whether the grand-jury system needed to be changed.

“We can’t make a judgment about what the nature of the reform should be without really knowing” what went on behind closed doors, said Arthur Eisenberg, legal director of the New York Civil Liberties Union.

‘Perception It’s Rigged’

Keeping the records secret “reinforces the perception, if not the reality, that the system is rigged,” said James Myerson, who represented the NAACP.

A lawyer from the Staten Island District Attorney’s Office responded that “disclosure will simply raise more questions.” The Deputy Chief of the DA’s appeals bureau, Anne Grady, said, “The intense public scrutiny of this case should result not in disclosure but even-more-zealous protection.”

She warned that disclosing the names of the witnesses could have a “chilling effect” on future grand juries. Appellate Justice Leonard Austin told her that all four organizations seeking release of the grand-jury testimony had asked that the witnesses’ names be deleted, but she said people could figure them out anyway. “No amount of redaction will protect them,” she said.

The hearing was complicated by disclosures in a New York Times article published two days earlier that quoted one witness as saying prosecutors made her re-word some of her testimony, pertaining to her belief Police Officer Daniel Pantaleo used a chokehold, to the grand jury. Another witness told the Times that the grand jury did not seem interested in his testimony.

Mr. Myerson said many people believed there was “something wrong, and the New York Times article reinforced that perception.”

Lower Court Denied Bid

The four organizations, which included the Legal Aid Society, were appealing a March ruling by Staten Island Supreme Court Justice William Garnett that the records should remain secret. He said the groups did not meet the legal standard, which requires a “compelling and particularized need for access.”

“What would they use the minutes for?” he wrote at the time. “The only answer which the court heard was the possibility of effecting legislative change. That proffered need is purely speculative and does not satisfy the requirements of the law.”

The announcement in December that the grand jury had declined to indict Officer Pantaleo in the death of Mr. Garner infuriated many people who had seen an amateur cell-phone video that showed the officer apparently choking the suspect while bringing him to the ground.

Some, quoting the famous dictum of former Chief Judge Sol Wachtler that a prosecutor can persuade a grand jury to indict a ham sandwich, believed that the District Attorney at the time, Daniel Donovan, had steered the panel to a result that would please his mostly white, conservative constituency. Mr. Donovan was elected to Congress a few months after the decision.

Battle Lines Drawn

The announcement was followed by three weeks of daily protests that stopped traffic in various areas of the city. Many politicians called for reforms, either in the form of increased oversight or legislative action, for cases involving killings of civilians in which police were involved. The police unions warned against creating a separate, more-punitive system of justice for officers.

“All that we are seeking to do is to reform a system which, in my humble opinion, is broken, and to let everyone know that what happened behind closed doors

—obviously there was a miscarriage of justice,” Ms. James said after the hearing. “And what we witnessed in the video, is really that—what we witnessed in the jury represents the fact that there needs to be some accountability in the system, and unfortunately there was no accountability.

“And lastly that our eyes do not lie, and that the video demonstrated clearly what happened on Staten Island was an aberration of justice. And I believe as someone mentioned earlier that the system of justice as it is applied to law-enforcement officers is different from that of regular defendants, and that’s really the issue here today.”

Pressure From the Top

In the spring of 2014, commanders at the 120th Precinct were under pressure from top NYPD bosses, including then-Chief of Department Philip Banks III, to address petty crime in the Tompkinsville Park area of Staten Island, according to media reports, including the recent Times story.

Last July 17, a Lieutenant spotted Mr. Garner congregating on the sidewalk with other men whom the officer believed were part of the crime problem, which included sale of loose cigarettes and marijuana and carrying liquor in open containers. He called the precinct, ordering officers to “get out there.” Officers Pantaleo and Justin Damico were dispatched.

Earlier in the month, officers had warned Mr. Garner, who was known to many of the precinct’s cops, about selling loose cigarettes. So on this day, Officers Pantaleo and Damico decided to arrest him. Mr. Garner, 43 years old and weighing nearly 400 pounds, did not want to go, saying police were harassing him. “It stops today,” he said.

After about two minutes of unproductive conversation, officers moved in to subdue Mr. Garner, who pulled his hands away. Officer Pantaleo threw his arm around Mr. Garner’s neck in what some observers viewed as a chokehold, which is banned by the NYPD. Mr. Garner was brought down, repeatedly shouting, “I can’t breathe!”

ME Called It Homicide

The Patrolmen’s Benevolent Association maintained it was not a chokehold, and Officer Pantaleo’s lawyer said his client told the grand jury it was another takedown move he had learned in the Police Academy. However, the Office of Chief Medical Examiner released a summary of its findings that called Mr. Garner’s death a homicide—meaning other people were involved, but not necessarily at fault—and saying he died of chest compression (from his time on the ground) and a chokehold, as well as obesity and general ill-health.

A friend of Mr. Garner’s filmed the arrest on his cell-phone camera in a video that quickly went viral. Various versions were viewed by more than two million people.

An ambulance was called to the scene, but Emergency Medical Technicians did not offer Mr. Garner any treatment beyond checking his pulse. He was left lying on the ground for six minutes, then loaded into the ambulance, at which point he was given oxygen. Six minutes after that, the technicians reported that he was in cardiac arrest. He was pronounced dead of a heart attack in the Richmond University Hospital emergency room.

The NYPD and the U.S. Attorney for the Eastern District held off their investigations of Mr. Garner’s death while Mr. Donovan convened a grand jury.

Declined to Explain

In early December, he announced that the grand jury had decided against indicting Mr. Pantaleo, the sole officer it was investigating. Because state law makes grand-jury proceedings secret except in extraordinary circumstances, the DA said he was not permitted to explain the decision.

The case was saturated in a racial element: Mr. Garner was black and the officers who tackled him were white. His death was the first in a string during the latter part of 2014 of unarmed black men and youths across the country at the hands of police.

The DA’s Office eventually asked a judge to approve release of some details of the deliberations, but those details included things like the number of witnesses called rather than information about the content of deliberations or the prosecutors’ role, as the petitioners are seeking.

The Times report quoted Taisha Allen, who made an eight-minute video of the medical response, as saying that prosecutors urged her during her testimony to watch what she said.

‘Can’t Say Chokehold’

“When she said Mr. Garner did not appear to have a pulse, a prosecutor stepped in,” the Times reported. “‘Don’t say it like that,’ she recalled the prosecutor saying. ‘You’re only assuming he didn’t have a pulse.’ A prosecutor also interjected when she told jurors how Mr. Garner was taken to the ground. ‘I said they put him in a chokehold’ Ms. Allen recalled saying. “‘Well, you can’t say they put him in a chokehold,’ she said a prosecutor responded.”

Another witness, store manager Rodney Lee, testified that a Sergeant said, “Let up, you got him already,” but that the officer disregarded her instructions. “Before the grand jury, Mr. Lee said he testified briefly about what he saw, but left feeling the jurors, who were able to ask questions, were uninterested,” the Times reported. “‘They didn’t ask me nothing,’ he said.”

At the hearing, Natalie Rea, representing the Legal Aid Society, said, “The Medical Examiner comes out and says it’s homicide. We all watch a videotape. We saw what happened, and then you have a decision from the grand jury that is completely contradicted [by] all of our perception of all of this. The DA thought it is so troubling that they wanted some disclosure. They cherry-picked their disclosure.”

Judge: Swept Under Rug

Justice Austin said the office appeared to have “put a very pretty gloss” over the proceedings, and “swept everything else under the rug.”

Matthew Brinckerhoff, representing Ms. James, said her office was trying to investigate the case but had been stymied for six months because it could not get information about the grand jury.

Mr. Myerson said the case involved “a middle-aged, unarmed African-American male targeted over a non-criminal, non-drug-dealing event.” He said the identities of police witnesses should not be protected, arguing, “A law-enforcement officer does not have the same rights of privacy as a private citizen.”

“The secrecy that is shielding the grand jury from any kind of disclosure or accountability with the public is simply heightening the suspicions that many New Yorkers have, both of the Police Department and of the grand-jury system,” NYCLU Executive Director Donna Lieberman said at the press conference. “It’s time that we end the secrecy—that we put a little sunlight on the killing of Eric Garner, that we put a little sunlight on the grand-jury system.”

Earlier, she told THE CHIEF-LEADER it was likely that whatever the Appellate Division’s decision was, it would be appealed to the state’s highest court, the Court of Appeals. “One of the judges said he expected they won’t have the last word on this,” she said.