Trial Summary: Wednesday, June 5, 2019
Day 6 of Pantaleo on Trial
CCRB administrative/disciplinary prosecution of Daniel Pantaleo for killing Eric Garner – NYPD Police Commissioner O’Neill will make a final decision on disciplinary penalty for Pantaleo – if any – for killing Eric Garner.*
Wednesday, June 5, 2019 was the sixth day of the administrative trial of NYPD Officer Daniel Pantaleo, related to discipline charges that the Civilian Complaint Review Board (CCRB) brought against him for using a chokehold on Eric Garner and killing him on July 17, 2014 in Staten Island.
Day 6 of the trial included two witnesses, both called by Pantaleo’s lawyers for his defense:
- Former NYPD Sergeant Russell Jung, formerly served in the Police Academy Recruit Training section of the NYPD. Currently part of a consulting firm.
- Dr. Michael Graham, medical examiner for St. Louis, Missouri and Professor at University of St. Louis.
Day 6 also included discussion on whether Pantaleo would testify during the trial (he will not).
Highlights from witness testimony and cross examination
Former NYPD Sergeant Russell Jung, previously served in the Police Academy, Recruit Section testified that he led physical courses in defensive tactics, including the use of batons, mace, and “takedowns.” Jung testified that he did not realize Pantaleo had been a student of his when Pantaleo was in the Police Academy, until Jung was presented with a document in 2015 that he had signed as Pantaleo’s supervising trainer in 2006.
Under cross-examination by CCRB, Jung said he had been contacted by Pantaleo’s lawyers only two months prior. Jung admitted that he was hired to appear in the trial by Pantaleo’s lawyers, and that he was being paid for his testimony. Jung admitted that he did not review the NYPD Internal Affairs Bureau investigation, autopsy, or the CCRB investigation in preparation for his testimony.
CCRB referred to Exhibit F, the training curriculum from 2006 when Pantaleo was trained. Jung admitted that the rear takedown displayed is not the same as the “seatbelt hold” that Pantaleo’s lawyers kept referring to, and that the seatbelt hold was not taught in 2006, and would not have been taught to Pantaleo. CCRB’s Fogel asked if Jung would agree that officers should not perform a maneuver that they are not trained to do. Jung replied, “If I wanted to kick someone in the shin, that wasn’t taught in the Academy” as if that would be a good defense for Pantaleo, who used a chokehold that’s been banned by the NYPD for over 25 years.
Jung repeatedly tried to falsely frame the situation as a “violent encounter” as a way to justify use of force, in spite of multiple witnesses during the trial making clear that the basis for the arrest was false since Eric Garner had just broken up a fight – and had not been selling cigarettes when Officers Pantaleo and D’Amico approached him.
The second witness of the Day was Dr. Michael Graham, a professor at St. Louis University and the medical examiner for St. Louis, Missouri. Implying that he knew more about whether Eric Garner could breathe near the time of his death than Eric Garner himself, Graham stated: “He may have felt he couldn’t breathe, but the fact is he could breathe”. Dr. Graham claimed that this is a common complaint in people experiencing heart failure, and that the sensation does not mean something is happening in his neck. Graham then claimed that chokehold/neck compression by restricting blood flow to brain did not kill Eric nor did being “hogtied” cause death, and that he did not think Eric Garner was having an asthma attack. Graham said he was aware Garner had a history of asthma but sees in the video “nothing I would worry about” when it comes to asthma. Graham claimed Garner’s cause of death was “heart disease exacerbated by engagement with law enforcement.”
Under cross-examination by CCRB, Dr. Graham admitted he has also been paid by Pantaleo’s lawyers to testify ($2,500 prior to testifying at the trial, and an additional $500 an hour for his time at the trial). He did not produce a report on the autopsy.
Pantaleo’s request to NOT testify
Following the two witnesses, Pantaleo’s attorney Stu London requested that the court accept Pantaleo’s GO15 statement (statement to Internal Affairs from 2014) into evidence in lieu of his testimony. London claimed that this was because there is a pending DOJ investigation.
CCRB objected to this, stating that there is no DCT precedent for a GO15 being accepted in lieu of testimony for an officer who is present in the trial room – and that since Pantaleo is present, he is choosing not to testify. (Pantaleo has been present every day of the trial). In addition, CCRB objected because the court would be treating CCRB witnesses differently, since transcripts of CCRB witnesses who were unavailable were not admitted into evidence.
In her remarks on the matter of whether Pantaleo would be forced to testify, DCT Maldonado stated that based on the 2nd circuit, public employees do not have the right to refuse to account for their actions and retain employment. She also acknowledged that CCRB would be at a disadvantage by calling him as a witness if the defense does not, because they would not be permitted to cross-examine him, and he would be called as a hostile witness. However, DCT Maldonado ruled that Pantaleo’s GO-15 would be accepted into evidence. She requested post-hearing briefs be sent to her by June 15th to address questions raised about how the GO-15 should be treated, including whether “negative inferences” should be given to the fact that Pantaleo chose not to testify.
In attendance Day 6
Eric Garner’s mother, Gwen Carr, was joined today by Eric’s sister, Ellisha Flagg Garner, Eric’s youngest daughter Legacy, who is 5 years old; Legacy’s mother Jewel Miller, and Eric’s cousin, Michael Garner. Others showing up to support Ms. Carr both inside and outside 1 Police Plaza included:
- Families whose loved ones were killed by police including: Iris Baez (mother of Anthony Baez), Hawa Bah (mother of Mohamed Bah), Carl Stubbs (father of Clifford Johnson).
- Elected officials, including: Public Advocate Jumaane Williams; Members of the New York City Council Black Latino and Asian Caucus (BLAC) including Councilmembers Daneek Miller, Debi Rose, Donovan Richards, Laurie Cumbo, Inez Barron, and Antonio Reynoso.
- Civil rights leaders, including: Rev. Herbert Daughtry/House of the Lord Church; Cynthia Davis/Staten Island NAN; Juan Cartagena/LatinoJustice PRLDEF; Linda Sarsour and Tamika Mallory of the Justice League and Women’s March; and others.
- Organizations that showed up and/or provided off-site support today included the Justice Committee and other Communities United for Police Reform members/partners, incl: Arab American Association of NY, Brooklyn Movement Center, DSA-NYC, DRUM, Equality for Flatbush, Girls for Gender Equity, Jews for Racial & Economic Justice, Justice League NYC, LatinoJustice PRLDEF, Malcolm X Grassroots Movement, MomsRising, NAACP LDF, National Action Network, North Star Fund, Peoples Power Assemblies, Showing Up for Racial Justice NYC, Take on Hate, VOCAL-NY, War Resistsers League, Women’s March, and others.
Additional Background
* NYPD Commissioner O’Neill’s decision regarding what Pantaleo’s discipline will be (if any discipline) will happen after the disciplinary trial – and could take weeks to months. O’Neill’s decision could be to implement what Deputy Commissioner of Trials Rosemarie Maldonado recommends, or he can make the penalty less or more than recommended.
Unless NYS law section 50-a is repealed, the Garner family and the public will never see DCT Maldonado’s report on findings and discipline recommendations to Commissioner O’Neill – or have access to the trial transcript or any motions -- unless these documents are leaked. As has been true with other cases in recent years, even the final discipline decision may be shielded from the public unless it is leaked, because of the NYPD’s interpretation of the NYS police secrecy law, 50-a. This is part of why Eric Garner’s mother and many others are fighting for the repeal of 50-a.
** Additional background on CCRB’s prosecution of Daniel Pantaleo:
Although NYPD had the authority to charge and prosecute Pantaleo (as they do with all officers) since 2014, they did not. It was revealed during the course of the trial that Internal Affairs had recommended that the NYPD bring charges against Pantaleo in January 2015. It is not clear who at the NYPD prevented discipline charges from being brough in early 2015. Be clear that this trial against Pantaleo would not be happening right now if CCRB had not pushed to make sure it would happen. CCRB substantiated charges in 2017 and those charges were blocked by the NYPD for almost a year from being served on Pantaleo.
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