A chokehold, lies & videotape

t least he didn’t get away with it.”

But, of course, he did. Too little and, most importantly, too late. After five years of full duty pay and overtime, not indicted by state or federal grand juries, hero and victim to too many cops, poster boy for PBA harangues of the NYPD brass and the mayor and a likely gilded future in some suburban department or private security firm, Daniel Pantaleo cheated the justice system and the people of New York by only getting fired.

But there is still another possible avenue for justice. As Administrative Judge Rosemarie Maldonado found, Pantaleo lied when he was confronted by a skilled Internal Affairs investigator almost five years ago who showed him a video of his hands clasped, pulling his forearm so hard against Eric Garner’s neck that the autopsy revealed severe ligature marks inside Mr. Garner’s throat, plainly cutting off air. The lie was blatant because, in that same interview, Pantaleo defined a chokehold as exactly what he did and, then, when confronted with the video, he denied it.

It is not too much to speculate that Pantaleo told the same lie to the state and, perhaps, the federal grand jury. It will be interesting to see whether any prosecutor has the courage to press perjury charges for which the statute of limitations has not expired. That may be one avenue to pursue further justice.

In the spring of 2015, as chair of the Civilian Complaint Review Board, I attempted to obtain the evidence of Pantaleo’s lie, along with all the evidence of the events of July 17, 2014, by seeking production of the Staten Island grand jury records for use in the CCRB investigation. Not unexpectedly, a Staten Island judge blocked our effort. We always knew that our only viable remedy was, not in Staten Island, but in the appellate court. Precedent allows production of secret grand jury evidence under seal to an administrative agency such as the CCRB for purposes of disciplinary action. However, when we sought to appeal what we thought was an unsupportable ruling, the City Corporation Counsel ordered us not to seek review.

Thus, what perhaps is the best evidence of what happened and, most importantly, more clear evidence of Pantaleo’s lie, will never see the light of day. The mayor and the Corporation Counsel are responsible for this continuing breach of accountability and the unsupportable restriction on the CCRB’s investigation which, to this day, could give rise to more complete justice for the Garner family.

Not even any future redress for Pantaleo’s lie can make up for the inexcusable delay between Garner’s death and resolution of the federal charges. Pantaleo’s firing five years later is proof that the police discipline system is just as broken as the criminal justice remedies. The entire system that responds to these tragedies is obviously designed to wear down any oversight agency or victim so that the public loses interest. That did not happen thanks to the Garner family and the deep outrage instilled in anyone who watched the video.

But make no mistake about it. The criminal justice system failed, the police disciplinary process failed despite Monday’s outcome. Perhaps the only glimmer of optimism is the effectiveness of the long-delayed prosecution efforts of the CCRB, which handled the case professionally and effectively in the NYPD trial room, gaining the decision of termination by the administrative judge, as well as the police commissioner’s approval.

The Garner case was the CCRB’s finest hour. On this count, the CCRB must be commended and should be proud.

Finally, after years of documented toleration of chokeholds, which a CCRB report on the issue demonstrated were the result of the degradation of enforcement of rules preventing their use, the NYPD disciplinary system responded. It took five years, a video, a death and determined family and public outrage. But there is hope that this tragedy will not re-occur.

Emery, a founding partner of Emery Celli Brinckerhoff & Abady LLP, is former chair of the Civilian Complaint Review Board.