Eric Garner’s Homicide Solved

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.

47 thoughts on “Eric Garner’s Homicide Solved

  1. Michael Shapiro

    In 1971, after a year of hearings concerning rampant corruption permeatings the NYPD (think Serpico), the blue-ribbon Knapp Commission recommended, and Governor Rockefeller established, the creation of an independent Special Prosecutor’s Office that superseded the jurisdiction of the five local DAs in NYC. The Knapp Commission recognized the inherent conflict of interest in a local DA investigating and prosecuting police-committed crimes. The DAs and the NYPD work hand in glove on a daily basis; that same DA cannot reasonably be expected to bring unvarnished objectivity to a case in which the police themselves are the suspects. The Special Prosecutor’s Office, established in 1972, and disbanded in 1987 (for alleged “budgetary” reasons) had its own investigators and lawyers. Many of the DAs, especially legendary NY County DA, Frank Hogan, were unhappy to say the least. While the first Special Prosecutor, Maurice Nadjari, found himself quickly enmeshed in controversy because of his excessive zeal, his successors, among them, now-Senior Fedeeral District Judge John Keenan, established a remarkable track record in fairly, objectively and successfully investigating and prosecuting cops and others in the criminal justice system suspected of criminality. Had there ben special prosecutors in Ferguson and Staten Island, as there was in Florida for the George Zimmerman case, the result of the grand jury presentations would almost certainly have been different. Just as DAs can indict ham sandwiches , they can also assure that those same sandwiches go free, as DA Donovan has proved.Perhaps it is time for the reestablishment of the Special Prosecutor’s Office.

    1. SHG Post author

      While it may not be the only prong of the solution, you are absolutely right that we need to re-establish the office of the Special Prosecutor. The inherent conflicts for local prosecutors cannot continue unabated. We need a new Nadjari.

  2. morgan sheridan

    I think it was a pretty much foregone conclusion that the police would be allowed to walk here. If the police murder a person of color in this country, there is no genuine legal consequence to them. And with that, they drive another wedge between our citizens, setting us at odds against each other and fostering even greater mistrust. Shall we send Donovan roses? /snark/

  3. Ryan

    when the medical examiner declared it a homicide, is he doing so with reference to the criminal definition you cite, or to a different definition, one that only signifies the death was not natural/caused by a person in some way. My quick Google search showed that medically and legally the definition of “homicide” may differ.

    If the different definition is employed, then there is no legal conundrum. As you are well aware, people kill people all the time, but for whatever reason, the killing does not satisfy the elements of a crime.

    1. SHG Post author

      Homicide is a legal term. That is the definition. That’s why it is included in the post, so people won’t ask stupid questions like this.

      And in anticipation of your follow up, defending your honor, don’t. I will not allow the comments to this post to be dragged into gutter because of non-lawyer cluelessness or butthurt, no matter what google says.

      1. Piedmont

        It’s not a stupid question: what we’ve seen hasn’t established that the medical examiner’s report uses “homicide” as a legal term. Those two dots haven’t been connected, and it’s not obvious that the New York Penal Law (rather than non-statutory professional standards or some other would apply to the reports of medical examiners. Looking at NY NYC Code § 557, the word “homicide” is never used.

        At least in Virginia, there’s no master set of definitions that apply to medical examiner reports, police incident reports, and criminal charges. A lot of definitions vary even from article (groupings of offenses, like Crimes Against the Person, Crimes Against Property, etc.) to article. I don’t know New York law, but if you’re able to say that MEs use legal definitions, then please say so.

        1. SHG Post author

          Fascinating. So you have no clue what you’re talking about, but know enough that it’s not a stupid question because you have no clue what you’re talking about. Being clueless doesn’t entitle you to demand that I put NY law into your paradigm. You don’t know enough to be capable of distinguishing? And because you are the center of the universe, that makes it my problem. Unreal.

          Edit: I got a call from an old buddy of mine, who was a special homicide prosecutor for almost 20 years before becoming a defense lawyer. He told me that he tried a murder case in Virginia and “you wouldn’t believe the craziness with their MEs down there,” and that the ME’s homicide conclusion was “for statistical purposes only,” that he was able to preclude the cover sheet of the autopsy from evidence as being legally inconsequential.

          So perhaps that’s why you see this as an issue, in that you come from a state that with different rules, and see NY from within the paradigm of Virginia.

          1. bdh

            I think he’s more or less right. At least in the places I’m familiar with, coroners aren’t looking to the penal law when they specify the manner of death. The National Association of Medical Examiners, for example, says deaths should be classified as homicides when they result from “‘…a volitional act committed by another person to cause fear, harm, or death.” That doesn’t imply a legal conclusion that the death was criminal (lawful self-defense would also be a homicide under that definition).

            Even if it did, why would the coroner’s determination be a legally binding conclusion? It’s powerful evidence. But you’d never accept a jury instruction for one of your clients that says the coroner has already concluded that a crime was committed and your job is just to figure out whether he is the one who committed it.

            1. SHG Post author

              See my response above. It’s not a legally binding conclusion at an adversarial trial. In the grand jury, however, it establishes the cause of death, and the definition of homicide, “conduct which causes the death of a person . . . under circumstances constituting” a crime is extremely broad. It doesn’t preclude a defense, nor is it meant to, but it establishes all that is needed for the purpose of the grand jury. And it’s consistent with, though actually somewhat narrower, than that of the NAMEs.

              One of the problems, is that the distinction between grand jury and trial seems to be lost here. The ME’s cause of death conclusion isn’t irrefutable at trial, but this case will never make it to trial, where it can be challenged by adversarial process.

      2. Roger

        Too facile. Homicide is a legal term, but it is also a medical term, and pathologists are trained that it is not to be used to make a criminal determination. For example, at page 6 of its Guide for Manner of Death Classifications, the National Association of Medical Examiners notes that classification of homicide is a neutral term that “neither indicates nor implies criminal intent, which remains a determination within the province of legal processes.”

        Now, I’m just a Missouri lawyer, not a member of the New York bar, so maybe I don’t get how things work in New York, but a little time on Westlaw suggests that this distinction between the legal definition of homicide and the medical definition has been recognized by New York courts. See People v. Odell, 26 A.D.3d 527, 529, 808 N.Y.S.2d 830, 833-34 (2006)(finding error in allowing People’s expert to opine that death was homicide, but holding that error was harmless in light of expert’s explanation that he was using the medical definition of homicide and not drawing a legal conclusion or making a determination regarding culpability). And at least one New York judge has specifically held it to be error (though, again, harmless—is it possible to have error that a judge will find harms a defendant in New York?) to allow testimony from the medical examiner to a grand jury that the manner of death was homicide. People v. Sergio, 864 N.Y.S.2d 264 (2008).

        Acceptable options for manner-of-death classification generally include natural, accidental, suicide, or homicide. If, as you say, homicide is limited to deaths within the Penal Law §125 definition, how is a medical examiner to classify deaths that would be homicides but for the defense of justification? Is it your position that medical examiners get to (are required to?) decide whether self-defense applies, and having so decided the grand jury is bound by that determination? If that really is what New York law says, then the law truly is a ass.

        I know that it is not your mission to give a primer on New York law to those of us who read your blog but don’t practice there, but to a simple country lawyer in flyover country this “the medical examiner said it’s a homicide so that settles it” approach makes no sense.

        1. SHG Post author

          It’s not a conclusive holding at trial, but like a rebuttable presumption, adequate to establish the cause of death before the grand jury. It doesn’t preclude a trial defense, such as justification, or even a jury finding that the ME’s opinion as to cause of death was wrong, However, before the grand jury, which is a nonadversarial proceeding, the ME’s finding is sufficient to establish that death is a homicide. Come on, this isn’t tough stuff.

          1. Jeff Norman

            Still unanswered: If not “homicide,” what word does a NY medical examiner use to categorize a death caused by a human when the ME believes the killer acted lawfully, or when the ME has no opinion about it?

            1. SHG Post author

              The ME’s use of homicide means that the death was caused by the volitional act of another. He doesn’t assess anything beyond the cause of death, nor is the ME’s opinion beyond the cause of death (lawful or criminal) relevant. Whether the ME has an opinion beyond his expertise as ME, it doesn’t matter. He’s not the judge or jury, but he is the ME.

            2. Ryan

              “The ME’s use of homicide means that the death was caused by the volitional act of another. He doesn’t assess anything beyond the cause of death, nor is the ME’s opinion beyond the cause of death (lawful or criminal) relevant. Whether the ME has an opinion beyond his expertise as ME, it doesn’t matter. He’s not the judge or jury, but he is the ME”

              I said if the definition the ME uses for homicide is different from the definition of homicide in the Criminal Code, there is not [necessarily] a legal conundrum.

            3. SHG Post author

              Blame the confusion on me, then. I hope this clears it up, and apologize for misunderstanding what you were asking.

            4. Myles

              Still unanswered? Why do you write this? And if SHG doesn’t acquiesce to your expectation that he answer whatever it is that you want him to, what do you plan to do?

              You want a refund?

              You going to stop reading SJ?

              You going to call him a name?

              So what? What the hell is it with you people who write comments here as though he owes you something.

              The blatant entitlement of so many is not just offensive, but outragous. Since when does he owe you anything? And who the hell are you to think you’re worthy of his time? Unbelievable.

  4. Pingback: But For Video: The Eric Garner Failure | Simple Justice

  5. Greg Lubow

    I wonder what the vote in the grand jury was. while it takes 12 to indict, it also takes 12 ‘affirmative’, or perhaps the better word is ‘actual’ votes to not indict for the purposes of re-presentment, without court order. In P v Aarons, a DA was allowed to re-present without court approval and the subsequent indictment and conviction upheld by the COA upon a finding that the DA could re-present without court approval because there were not 12 actual votes to dismiss the charge. While I think that Aarons defies logic – if you don’t vote yes, isn’t that a ‘no’, especially where there is no direction that you must vote one way or the other – yes or no, it is the law of the State.
    In this case, although the People failed to garner 12 votes for any homicide indictment, were there 12 ‘affirmative, actual’ votes to ‘dismiss’? If not, perhaps a special prosecutor could, without court approval, re-present the case. And, I am aware that there was nothing to ‘dismiss’ because there were no underlying charges pending in the local criminal court. Never having been a prosecutor I don’t know all that goes on as part of a grand jury investigation, where there is no underlying charge being presented. What instruction on the law does the prosecutor give?

    1. SHG Post author

      There is a lot we don’t know about what happened in this GJ, including the vote split (assuming there was a split). It’s unlikely that we’ll ever find out.

    2. Michael Shapiro

      Having been an assistant special prosecutor for 11 years in two different offices I conducted scores of grand jury investigations, some last more than a year. Grand jurors and prosecutors, especially in lengthy, ongoing investigations become very familiar with one another. The way the prosecutor presents the evidence, its order, the way in which witnesses are questioned, and, ultimately, the legal instructions given to the grand jury, all greatly influence the outcome. And, unlike when an indictment is found and a judge eventually inspects the grand jury minutes to see if there was sufficient evidence presented, if there was an undue prejudicial testimony and if the instructions given were proper, when there is no true bill the grand jury presentation will never be reviewed by anyone. Because of its one-sidedness, grand jury presentations are even more subject to a conflicted prosecutor than would be the case in an adversary proceeding.

      1. SHG Post author

        …when there is no true bill the grand jury presentation will never be reviewed by anyone.

        Just to highlight this key detail, there will be no inspect and dismiss motion, so no judge will review the conduct of the presentment or instructions for prejudice, whether subtle or flagrant, or the split in the vote.

  6. Dan

    For some reason, I find myself very reluctant to engage in this kind of cynical legal realism type analysis, and perhaps this comment is a reddit type, vapid, simplistic, general the system is rigged type of comment, but I think this case and this outcome may well be explained by Staten Island + White Cop + black decedent = no true bill. Whether the DA charged it in or out, we’ll never know, but I’m not certain that it matters. (It may matter for some reasons, but not others). I say this as a lawyer with some experience, way less than Scott, and who has been to Staten Island once for a criminal case, once for a civil case and hopefully never to return.

    1. SHG Post author

      It could be that simple, but that would be too assumptive to argue. I won’t impugn all of Staten Island because that’s how the rest of New York views them. But I can, and will, point blame at Donovan, because he made a choice that, at best, can be directly blamed for this outcome.

  7. Neil Dunn

    I offer the following two links to counterbalance your incomplete discussion. Dr J. Dunn is both an MD Emergency Physician and an attorney and hosts the below blog.

    [Ed. Note: Links deleted per rules.]

    The below you may have seen and is for background only.

    [Ed. Note: More links deleted per rules.]

    Having some forensic experience as a pathologist( a long time ago), I agree with Dr.J.Dunn(not related).

    1. SHG Post author

      There are many people who challenge whether the chokehold was a chokehold. That would be an excellent point to argue at trial. But there won’t be any trial.

      1. ExCop-LawStudent

        Anyone who has seen the video, who is familiar with both the LNVR and the arm-bar choke, and who is honest, will know that Garner had an arm-bar chokehold applied.

        Anyone who says differently is either not knowledgeable or is lying.

  8. Bill Michtom

    Since the title of this blog is Simple Justice, it’s a shame that you are so willing to attack people for being “too simple.”

    You say, “keep it civil and respectful,” but are neither. One reason people might read what you write is to learn more from a more educated and experienced person. Yet, you give little to no room for that possibility.

    1. SHG Post author

      Damn, Bill. You are one monumental dumbass, even if you’re on the side of truth and justice. Volenti non fit injuria. Google it.

      If you want to learn, learn. If you want to scream “all cops are racist pigs,” that’s not learning. That’s being a simplistic dumbass. Do it elsewhere. Bye.

    2. Sgt. Schultz

      Every once in a while, somebody new gets their butt kicked for writing the sort of dumbass crap here one ordinarily expects to see on reddit. But the real litmus test is when they invoke the title, “Simple Justice,” as if that’s supposed to make it unfair to call a moron a moron, regardless of which side they’re on.

      You failed, Bill. For the sake of other non-lawyers who show up here and, like Bill, think they’re entitled to spew nonsense to the choir, SHG doesn’t tolerate stupid whether people agree with him or not. That’s what makes SJ matter, because it’s not one side against the other, but thought against stupidity. Did I mention, Bill, that you fail?

  9. Chris Ryan

    I rue the day the fools (Bill, Judith, etc) get the rest of us non-lawyers banned from here.

    I (obviously) can’t speak for anyone else, but one reason I come to sites like this one is to get a different take on stories that are out in the media, but lack both an unbiased nature and the base knowledge to effectively communicate the process/information much less understand it.

    Personally I am at a loss as to what I can do about the obvious flaws in the system besides simply speak my mind when it comes up in conversation and suffer the verbal blow back. Voting doesnt seem to change it (I live in CA which is supposed to be “forward” thinking and we are stuck in Prop 8 and more prison stupidland).

    As for the idiots “expecting civility”, next time they should read the rest of the sentence that says “but that does not mean I will respond in kind.” reading comprehension ftl!

    1. SHG Post author

      The reason I tolerate the fools is because every once in a while, non-lawyers bring brilliance here, and I don’t want to miss it.

      And some of you guys are very funny, which I sincerely appreciate.

      1. Vin

        The problem with being stupid is it that it feels a lot like expertise. In order to know you don’t have a clue, you actually have to have a clue.

        [Ed. Note: Link deleted per rules.]

          1. Vin

            LOL, wait, you were serious???

            You should have made an exception to the rule. That link is scientific evidence to support your disdain for the majority of mankind. 😉

      2. david

        Aw shucks.
        Maybe instead of maths, you could perhaps have to complete an original limerick?
        “There once was a lady from Nantucket . . . ” {complete}

        “Who was beaten to death with a bucket;
        The mayor yelled blue murder;
        The media were all turds-a;
        And the defendant was denied his Miranda rights, had incompetent overworked assigned counsel, and was subsequently murdered in holding while awaiting a “speedy” trial”

        There, do I understand seppo law or what? The hardest part was rhyming murder . . .

        1. lawrence kaplan

          There once was a lady from Nantucket
          Who was beaten to death with a bucket,
          But since she was killed by a cop
          All charges they did drop
          And as for justice, well f— it.

  10. Bill Michtom

    There are other law bloggers who don’t find it necessary to be arrogant assholes as this crowd seems to.

    So, when it comes to “fail,” look in the mirror, schmucks.

    1. SHG Post author

      Uh oh. You got us. You win. Give my love to those other law bloggers who will treat you with kindness and respect, no matter how big a dumbass you are. Bye.

  11. Terrrapin

    My question does not reflect practical reality, but merely idle curiosity. Can a grand jury re-visit an issue, even after it returns a no true bill? I presume that, like a prosecutor’s decision to nolle prosse, the outcome is without prejudice. Thus, for example, If new or additional evidence were to come to light, I presume the case could be brought back to the grand jury. What sucks the practical reality from my question is really the sub-question embedded within in: Could a prosecutor stung by universal condemnation of his craven presentation to a grand jury, which results in a no true bill, decide to re-present the case without new or additional evidence?

    1. SHG Post author

      My answer does not reflect practical reality, but merely idle curiosity. Why are you seeking to waste other people’s time asking this when (a) it’s only for idle curiosity, and (b) it has already been asked and answered?

      If your question wasn’t just idle curiosity, I might have explained it (or published one of the comments that did, but which I refuse to post to feed sloth). But since I don’t want to encourage people asking idle questions for no better reason than someone can’t be bothered to look up the answer for himself, I didn’t. Good with you? Cool.

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