After taking a four-day break, the administrative trial of Officer Daniel Pantaleo on charges that he used a banned chokehold in the death of Eric Garner in 2014 continued on Tuesday, running three hours before taking another hiatus that will last two weeks.
The slow progress appears to be frustrating to all parties involved except Pantaleo and his lawyers, who told an irate Judge Rosemarie Maldonado that the delay was unavoidable, as a witness they would like to call is currently unavailable. The witness, a medical examiner from Missouri, is expected to challenge the New York City Medical Examiner’s determination that Garner’s death was a homicide brought on by a chokehold. But Pantaleo's attorneys said their witness cannot travel now, because he is currently "the only Medical Examiner in St. Louisthis week."
“The Garner family doesn’t fully understand why we are having so much time off,” said Suzanne O’Hare, one of the Civilian Complaint Review Board lawyers prosecuting Pantaleo’s case. “It’s a great burden, it’s a great amount of anxiety and emotional stress for them.”
Maldonado agreed. “I’ve expressed my frustration about this in conference and sidebars,” she told Pantaleo’s lawyer, Stuart London, before agreeing to suspend proceedings until June 5th.
In a pretrial motion last month, Pantaleo’s lawyers had asked Maldonado for last Friday off from trial, as Pantaleo, who is still employed by the NYPD, had a scheduled vacation. At the time, Maldonado refused, but last week she agreed to recess court that Friday and this Monday, when Pantaleo’s lawyers said they were unable to schedule witnesses on those days.
Outside of One Police Plaza after Tuesday’s hearing, supporters of Eric Garner’s mother, Gwen Carr, expressed outrage at the delay.
“Justice delayed is justice denied,” said City Council Member Donovan Richards, who chairs the Council’s Public Safety Committee and who attended the day’s testimony.
The main witness of the day was Justin D’Amico, Pantaleo’s partner on July 17th, 2014. D’Amico was the officer in charge of graffiti and “quality-of-life” infractions, and had been directed to surveil a length of Bay Street on Staten Island after his Lieutenant, driving by, had noticed a group of men standing on the block in a manner he deemed suspicious.
In previous testimony, the Lieutenant, Christopher Bannon of the 120th Precinct, had said that he had been specifically assigned to clean up this stretch of Bay Street by top NYPD brass at a data-driven policing meeting focused on “quality-of-life” offenses in March of 2014, when he was presented with a photo of a man selling cigarettes on the street in that area. Bannon said he was “tasked with addressing the condition.”
D’Amico brought Pantaleo along that day, he testified, and the two parked up the block, watching Garner from a distance, until D’Amico saw Garner sell a loose untaxed cigarette.
D’Amico said he had encountered Garner once before a few weeks earlier, and had stopped him for selling untaxed cigarettes on that occasion, letting him off with a warning, though he didn’t log the event in his memo book.
On the day of Garner’s death, D’Amico determined immediately that he would arrest Garner, but took his time about it, he testified today, because Garner was “irate” and he hoped to calm him down using “verbal judo.” As the conversation progressed, he nodded to Pantaleo, who got on his radio to call in back-up. D’Amico, who like Pantaleo was in plainclothes, reached into the back pocket of his cargo shorts for his pepper spray. “I thought it might be a tool that I was trained, to maybe put him under arrest,” he said.
After Pantaleo got behind Garner and brought him to the ground, D’Amico said he focused on getting Garner handcuffed, and didn’t hear Garner’s repeated pleas of “I can’t breathe.”
Throughout D’Amico’s testimony, Garner’s widow, Esaw Snipes, sobbed softly in the gallery.
On cross-examination O’Hare challenged D’Amico’s recollection of being 100-200 feet away from Garner when he witnessed the cigarette sale.
“Would it surprise you to learn that the actual distance is 328 feet?” she asked the officer. “More than a football field?” D’Amico conceded that distance might be correct, and that no, he did not have binoculars with him to aid in his ostensible observation of the sale.
O’Hare also walked D’Amico through stills of the famous video of Garner’s death, pausing on one in particular as she pressed D'Amico to describe what was shown.
“Officer Pantaleo still has his arm around Mr. Garner’s neck?” she asked him, as she showed one image in which Pantaleo’s arm is around Garner’s neck.
“It was around his body,” D’Amico responded. “Upper body.”
In the gallery, Snipes, Garner’s widow, muttered, “Oh, come on.”
John Tynan, one of Pantaleo’s lawyers, demanded that she be removed from the courtroom, but the judge declined. “Is his arm in fact around his neck?” O’Hare continued. “From that photo I can’t tell if it’s around his neck or not,” D’Amico said. O’Hare pressed. “His bicep is in the head area, yes,” D’Amico said. “His head area?” O’Hare asked. “Yes, the upper head area.” D’Amico said.
O’Hare also walked D’Amico through the period after Garner was handcuffed when he appeared unresponsive, when officers attempted to make him stand up.
“You did that because you believed he was playing possum?” O’Hare asked. “Yes,” D’Amico said. “You didn’t know if Mr. Garner was breathing at that point did you?” she asked. “At that point, we did not,” he replied.
When an ambulance arrived, D'Amico accompanied Garner into the ambulance, as EMTs and a Fire Department paramedic attempted to revive Garner with CPR and a defibrillator, D'Amico testified. Garner was taken to Richmond University Medical Center, where he was pronounced dead.
D’Amico signed arrest documents for Garner after his death, initially filing paperwork with a top charge of violation of New York Tax Law 1814 A, a felony.
“You’re familiar that in order to be charged with that, it requires that you have 10,000 cigarettes, or 22,000 cigars, or 4,400 pounds of tobacco?” O’Hare asked. D’Amico, who had testified that he had found four packs of Newports with Virginia tax stamps in Garner’s pocket, conceded that Garner did not meet this standard.
Did someone order D’Amico to file those charges? O’Hare asked. “Nobody ordered me to,” D’Amico said.
Pantaleo’s lawyers noted that on other paperwork, the top charge was a misdemeanor. The distinction between the two sets of charges and their significance is made murkier by the fact that the underlying documents are not public, and trial participants will not comment.
After the hearing, Councilmember Richards said Pantaleo’s trial marks a test of New York’s commitment to racial justice and police accountability, and put ultimate responsibility for the trial’s outcome and improved policing in general on the City’s top leadership: "Commissioner O'Neill, Mayor de Blasio,” he said.
“We can talk about all the community policing in the world; we can talk about building those bridges between communities and the police department. We can put out all these Twitter feeds of officers out in our communities," Richards said. "But this case right here is going to show us which side you stand on. It's going to be a clear indication on which direction this Police Department is moving in."