The New York City Medical Examiner’s conclusion was clear: Eric Garner, age 43, of Staten Island, was a homicide. It’s the responsibility of the medical examiner to make the judgment call requiring medical expertise as to cause of death. Garner’s asthma, obesity and high blood pressure contributed to his death, which is nothing extraordinary or unusual. People come in whatever condition they are; even fat asthmatics get to live.
Under New York Penal Law §125.00, homicide is defined as “conduct which causes the death of a person . . . under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree. This is not a matter of debate or discussion, not that people lacking either the knowledge or expertise won’t do so anyway, but a matter of law.
Staten Island, which in official New York City parlance is called Richmond County, is its smallest county and the home of many police officers. It’s an affordable suburban place, despite being considered little more than the place where New York City garbage was dumped. Driving through Staten Island required holding one’s nose for years, as the odor was noxious. The courthouse is small and undistinguished, but it has its own District Attorney, Daniel M. Donovan, Jr., who has held the office since 2004.
Donovan’s role in presenting the case of Eric Garner’s homicide was clear. That it was a homicide had already been conclusively determined by the ME. The only question remaining was who committed the homicide. There was, of course, a video of Eric Garner’s killing, which conclusively showed that person to be New York City Police Officer Daniel Pantaleo. The only remaining question was which, of the crimes mandated by law, was committed. By definition of homicide, one of them, at least, had been committed.
Without much notice, flying below the radar of the far more controversial case of Michael Brown in Ferguson, Missouri, Donovan chose not to limit his grand jury presentation to the salient presentation necessary to obtain the remaining answers to the only open questions, but rather to engage in presentation that putatively allowed “all evidence” to be presented, both that showing probable cause as well as that disputing the occurrence of a homicide at all.
Whether the presentment was conducted in a manner that reflected a desire to obtain an indictment, or a desire to quash one, is not yet clear and will likely never be clear. What is clear, however, is that the expansive nature of the presentment is something that happens only when the target of the grand jury is a police officer. While this grand jury proceeding was ongoing, maybe ten thousand others were indicted by New York grand juries. They weren’t given the opportunities that Donovan gave Pantaleo.
According to the New York Times, Pantaleo testified before the grand jury, a right of arrested defendants under New York law upon proper notice, but then, Pantaleo had not been arrested. Donovan, nonetheless, afforded the officer a courtesy of explaining the video showing the killing of Eric Garner.
Officer Pantaleo, 29, led the grand jury through the confrontation, narrating three different videos of the arrest that were taken by bystanders. His task would not be easy.
The officer tackled some of the most damaging evidence head-on. He acknowledged that he heard Mr. Garner saying, “I can’t breathe, I can’t breathe,” and insisted that he tried to disengage as quickly as he could, according to his lawyer, Stuart London. At the same time, Mr. Garner’s ability to speak, the officer testified, suggested that he, in fact, could breathe.
“He wanted to get across to the grand jury that it was never his intention to injure or harm anyone,” Mr. London said. “He was really just describing how he was attempting to arrest someone.”
That Pantaleo had no intent to kill Eric Garner is unsurprising. That he did is beyond question. That should have been where the grand jury presentment ended. But, of course, it was not.
Officer Pantaleo testified that when he put his hands on Mr. Garner, he was employing a maneuver taught to him at the Police Academy, hooking an arm underneath one of Mr. Garner’s arms while wrapping the other around Mr. Garner’s torso, Mr. London said. The move is meant to “tip the person so they lose their balance and go to the ground,” as seen in wrestling, Mr. London said.
No doubt Stuart London, the most experienced defense lawyer the police union has, would have made these points at the trial of Daniel Pantaleo. And a petit jury would have, upon completion of the adversarial process, reached a verdict. But it never gets there without an indictment. Unlike Missouri, there must be an indictment, and there is no alternative that doesn’t involve the defendant’s agreement to pursue a prosecution.
There was no legitimate legal reason, none, for the manner of presentment chosen by District Attorney Daniel Donovan. Perhaps it reflects his personal feelings toward police officers. Perhaps it was a compromise, so that the cops with whom he works daily wouldn’t hate him for prosecuting one of their own. Perhaps it was a deliberate scheme, his way of making it appear as if he was performing his prosecutorial duties, while assuring that the grand jury would return “no true bill.” The legal and ethical duties of the prosecutor are clear, but there is no entity that oversees the pragmatics of gaming the system for political deniability.
The presentment that should have been made, some low-level employee of the Medical Examiner’s office to proffer the death certificate, showing the cause of death to be a homicide, plus an officer to introduce the videotape, identifying the perpetrator as Police Officer Daniel Pantaleo, would take an hour, tops. It would have been a legally unassailable presentment.
The only thing left was for the grand jury’s legal adviser, the assistant district attorney in the room, time to explain the elements of the charges available under the facts of the case, which in this instance would range from Murder 2° under a depraved indifference theory to Manslaughter 2°, and then to ask the grand jury to return a true bill.
While the post hoc debate over the Ferguson grand jury swirls with factual controversy, most of which is manufactured to appeal to the confirmation bias of the lazy and ignorant, there was no controversy in the case of Eric Garner’s killing. It was a homicide. It was committed by Daniel Pantaleo. It’s now solved.
The District Attorney of Richmond County, New York, has, by the intentional sabotage of his own grand jury presentment, created the legal conundrum of a homicide without a perpetrator. It cannot be, yet it is, because he chose to make it so. The only “fact” the law cannot overcome is that Eric Garner, a human being, is dead.