The View From Todt Hill Road*

A comment about the arrest of Ramsey Orta, the guy who shot the video of Eric Garner’s killing, was notably unilluminating from the perspective of the case, but quite clear about the commenter’s bias:

is anyone really surpirsed by this turn of events ??

really ?!!?

It’s always obvious to those for whom it’s always obvious.  It makes for an easy, simplistic view of the world.  This view is the same for those on the other side of the street, who similarly see no questions, no issues, no doubts.   That role today is being played by retired Jersey City Police Captain Robert Cubby:

We have watched in disbelief as the worst nightmare a police officer can have comes true. An NYPD officer applied what was falsely called a choke hold. Moments later, the perpetrator gasped for air and died in the hospital.

Now the horrible news comes from the medical examiner that the choke hold caused the death of the perpetrator.  The death is ruled a homicide. The career of those involved from the NYPD dangles by a slender thread. The officers face the worst possible nightmare; loss of their career and being thrown in jail for a good portion of the rest of their lives.

While these officers now become defendants and have to, somehow, gather enough emotional strength to get through this horrible accusation.  While they gather all their financial resources to defend themselves, stay out of jail and retain their jobs, it is time for the LEO family to support our NYPD brothers and sisters.

Seeing the world through blinders is unhelpful no matter which side of the street you’re on.  Cubby’s concerns about Officer Daniel Pantaleo’s suffering the trauma of prosecution is endearing, though it’s not at all likely he would feel the same but for the fact that this “horrible accusation” is against a cop.  Indeed, it’s no doubt far easier for readers here to see the absurd disingenuousness of Cubby’s words than it would be for a cop.

The same is true when readers here change the names but express the same thoughts.

I know: but you’re right and they’re wrong. You’re reasonable and they’re batshit crazy. You’re on the side of truth and justice and they’re, well, flaming assholes.  Guess what? They think the exact same about you. About me too.

The New York Times suggests that the next potential step in the Garner fiasco won’t be as simple as many believe it should be.

But now, with the medical examiner’s conclusion that the death was a homicide, by chokehold and chest compression, the investigation — and most significantly, the question of whether to prosecute any police officers — rests in the hands of the Staten Island district attorney’s office.

It is a decision fraught with legal and political complications, all the more so because Staten Island is home to many police officers and, more than any other borough, is seen as sympathetic to law enforcement.

The world is replete with “us against them” scenarios, and Staten Island isn’t immune.  Even cops have to live somewhere.

Joel Berger, a civil rights lawyer who worked for the city’s Law Department, said that the criminal justice system was often ill suited to handle allegations of police misconduct. That can be particularly true in places like Staten Island, where support for the police is so strong. “There’s always the possibility, Staten Island being Staten Island, that they won’t indict,” Mr. Berger said.

It’s not merely inconceivable to many that there wouldn’t be a prosecution of the police officers who took Eric Garner’s life, but that anyone who wasn’t so utterly biased, so blindly wrong, could think this wasn’t wrong.  But the view from the other side of the street is very different.

Legal experts, civil rights lawyers and former prosecutors said there was little chance that Officer Pantaleo or the other officers would be indicted on a charge of murder. But they said a lesser homicide charge, like second-degree manslaughter or criminally negligent homicide, could be possible.

There is little question, from even a slightly objective perspective, that this wasn’t an intentional murder.  An argument could be made that Pantaleo’s chokehold reflected a depraved indifference to human life, an alternative basis for a second degree murder charge, but that too is a stretch.  Cops forcefully seize recalcitrant defendants all the time, and even chokeholds, prohibited by the Patrol Guide but not by law, are commonplace, even if they shouldn’t be.

Perhaps the worst pitfall for a criminal defense lawyer is to become such a “true believer” that he loses the detachment necessary to appreciate that the rest of the world doesn’t necessarily see things the same way he does.  When he begins to believe his own bullshit, that no reasonable person could possibly see things any differently than him, he’s lost.

In contrast to the obvious view of Eric Garner’s killing that most readers here see, those whose bias will lead them to seize upon any excuse to blame Garner (or even Orta) and excuse the police can’t be ignored.  Indeed, a comment to Cubby’s post makes clear how personal bias blinds one’s vision:

Thank God my daughter and husband retired from the NYPD. Now I worry about three grand-nephews on the job.

If that 350 lb. person didn’t break the law and listened to the police officers in the first place none of this would have happened. PERIOD . We always said yes sir and no sir. We did not sit on stoops ready to shoot a cop the minute he walked by or start a fight when we knew we were wrong.

You can disagree with this commenter, rip his comment to shreds, castigate his myopic self-interest all day long.  But what you cannot do is get him, should he be sitting as a grand juor, to vote for an indictment.

What happens next will begin with the hard political decisions to be made by Staten Island District Attorney, Daniel M. Donovan Jr., as to what, if anything, to charge, and then the views of the nice folks who live on Staten Island, who will sit as jurors, grand and perhaps petit, to pass judgment on police officers.

They will likely take a different view than I do.  But denying this can, and likely will, cause one to delude oneself as to the reality of perspective.  We may believe that we’re right, but they believe exactly the same thing.  Pretending otherwise is unilluminating.

* Todt Hill Road, Staten Island, sits at the highest elevation of New York’s five boroughs, and perhaps of the entire eastern seaboard.

16 thoughts on “The View From Todt Hill Road*

  1. David Woycechowsky

    I am no criminal law expert, but I think that the best argument for “depraved indifference” here is not the fact of the choking (taken in isolation) or the pile-on (taken in isolation), but, rather, taking the totality of those two acts in conjunction with the victim’s complaints that he could not breathe.

    If they had given him a little time / space after the choking, then I personally would feel differently about their level of indifference (even assuming the victim still ended up dead).

    If they had skipped the choking and gone straight to the pile-on then I would also personally feel differently about their level of indifference (even assuming the victim ended up dead).

    When you put these two separate acts together, in quick succession, then looks “depraved,” at least to me.

    1. SHG Post author

      The word “depraved” does not refer to a personal moral judgment, but rather the mens rea, where the killer cares so little about the almost-certain, wanton harm he is about to cause someone that it’s as culpable as if he intended to do the harm. The classic example is shooting a bullet into a crowd.

      It’s a very high bar, and it should be. What it is not meant to be is mere rhetoric to be applied based on any particular person’s sensibilities. In other words, what it looks like to you is not the test.

  2. AP

    Forgive my ignorance but is this a matter that could be prosecuted by the Federal Department of Justice so as to remove local biases?

    1. SHG Post author

      Not exactly. The feds only have jurisdiction over a violation of Garner’s civil rights, but not over his murder directly.

  3. John Barleycorn

    Does anyone know what’s up with that flag (24 stars on blue in the upper corner, three green and two white stripes) flying in distress atop the article “United We Stand for NYPD” by Mr. Cubby over at Law Enforcement Today which you linked?

    So esteemed one, is this a stealth effort to encourage your CDL readers to become adjunct professor at police academies throughout the land and or go on tour and give guest lectures for various law enforcement associations to better gain perspective?

    P.S. You might have missed some “us and them” (whatever the fuck that means) flavor in the body of Mr. Cubby’s article. I found it rather freighting yet enlightening.

    ~~~”Hey Gang- remember about 2 months ago the cops in New Jersey were asking for support regarding a town councilman who was pissing all over cops? We ALL BANDED TOGETHER and sent a LOUD AND CLEAR MESSAGE – and effectively ran that &*%$ out of town.”~~~

    1. ExCop-LawStudent

      It it the NYPD flag. The stripes represent the five boroughs: Manhattan, Brooklyn, Queens, Staten Island and the Bronx. The 24 stars represent the city and the villages and towns that became part of NYC.

      1. John Barleycorn

        Thanks ExCopLawStudent.

        Whew, glad to hear that.

        When google failed me I was starting to wonder if Law Enforcement Organizations were starting to create their own flags or something.

        1. John Barleycorn

          I think I read that wrong and was thinking that was The NYC flag.

          Some Law Enforcement “Organizations”/
          Departments do have their own flags I see.

          And here I thought patches were about as far as that identity thing went.

          Silly me.

            1. John Barleycorn

              Not enough barley in your glass as you ponder all this “us and them” rhetoric this afternoon, dear reader of the back pages of SJ?

              Never fear, I will drink one for you.

              ExCopLawStudent has inadvertently fostered the historical research necessary to break down the walls that separate “us from them” or the other way around, or whatever.

              Bring Back the Green Lanterns!

              That’s all it should take to calm the waters and temper the divisions here.

              Say what?

              Did you know that the NYPD flag currently flying in distress in some circles also has some cool color symbolism? The blue behind the stars is obvious and pans out to the cliche if anyone was interested.

              But the green? Yes the green has meaning too.


              ~~~Green lights still adorn the entrances to NYPD Pct. Station houses.

              The history of it is as follows. …Watchmen carried lanterns with green tinted glass, they would patrol the streets of New Amsterdam, and later NYC with their lanterns lit, so people would be able to see them and run to them for help if needed.

              When the watchmen returned to the “Watchhouse” they hung their lanterns outside the front door on a hook to indicate, the watchhouse was manned…

              Thus the history of the green lanterns which still are very much a part of NYPD History.~~~

              And seeing as how this post unfortunately revolves around death, as one side polishes death as incidental to duty while the other shouts murder,
              I would like to remind you that there is plenty enough death to go around.

              Death has no flag.

              But those that have flags do like to keep track and often use their own dead as justification for the incidental deaths their own deliver especially when their methods are questioned or called unsound.

              The NYPD was formed back in 1845 has about 35K uniformed officers and gets the job done with an annual budget of about 4.8 billion.

              via Wikipedia: *I don’t post this list as an argument for or against the force used by the NYPD. It’s just a list take from it any perspective you wish.

              ~~~According to the Officer Down Memorial Page, NYPD has lost 813 officers in the line of duty,[15] the most-recent officer being was lost on June, 2nd, 2014.[16] This figure includes officers from agencies that were absorbed by or became a part of the modern NYPD in addition to the modern department itself. This number also includes officers killed on and off duty by gunfire of other officers on duty. The NYPD lost 23 officers in the September 11, 2001, attacks.

              Type Number
              9/11 related illness[18] 31
              Accidental 10
              Aircraft accident 7
              Animal related 17
              Asphyxiation 2
              Assault 31
              Automobile accident 51
              Bicycle accident 4
              Boating accident 5
              Bomb 2
              Drowned 12
              Duty related illness 10
              Electrocuted 5
              Explosion 8
              Exposure 1
              Fall 12
              Fire 15
              Gunfire 323
              Gunfire (accidental) 24
              Heart attack 44
              Motorcycle accident 36
              Stabbed 24
              Struck by streetcar 7
              Struck by train 5
              Struck by vehicle 37
              Structure collapse 3
              Terrorist attack 23
              Vehicle pursuit 12
              Vehicular assault 20
              Total 863~~~

              P.S. Fun facts: Did you know that the NYPD flag came into existence in 1919 the same year as the 18th amendment creating Prohibition.

  4. Thomas R. Griffith

    Sir, (J.B. or, Weezy may have already noticed it?) It could just be me (aka: one of Them) but it looks like you described Cop Land with Stallone to the T. And, we (Them) thought it was just a movie and Houston was the one having a problem with Us vs Them. Thanks.

  5. John Barleycorn

    Here you go…30 minutes of how it was anti police rhetoric that killed Eric Garner from not one but two PBA heads.

    Oh yeah, that stop question and frisk deal was and is cool with the PBA, it was just the insistence on numbers that was the problem.

    All kinds of nuggets of perespective in this press conference. It is not concise. 30 mins including Q&A.

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