FED RIFT IMPERILS GARNER COP CASE
Washington takes lead role Choke officer’s defense sees a benefit
AS THE JUSTICE Department looks to indict NYPD Office Daniel Pantaleo by year’s end in the civil rights probe of the Eric Garner police chokehold case, experts said Tuesday that bitter infighting between prosecutors has made a potential trial a defense lawyer’s dream.
The probe is now firmly in the hands of the Department of Justice in Washington, D.C., which appears to have overruled recommendations from Brooklyn prosecutors and FBI investigators not to indict the NYPD cop, sources said.
The New York-based feds determined they could not bring a criminal civil rights case against Officer Pantaleo for Garner’s death — leading the Department of Justice to take control of the case.
Defense lawyers and former prosecutors said the unusual split opens a trove of evidence that could potentially help Pantaleo if he’s indicted.
When U.S. Attorney General Loretta Lynch gives the department’s civil rights division the green light to charge Pantaleo with violating Garner’s civil rights, it could reveal the deep division between the branches of the Justice Department.
The key, however, is the defense getting its hands on the information and being allowed by a judge to quiz witnesses about it, the sources said.
A former federal prosecutor said a legal battle over discovery evidence will likely take place if there’s an indictment.
“If I’m Pantaleo’s defense lawyer, I want all the internal communications that the prosecutors were fighting about,” said the former fed, who spoke on the condition of anonymity.
“The government will argue, though, that it is internal deliberations and that you can’t cross-examine witnesses about what the prosecutors think about their case.”
Steven Brounstein, who represented Officer Kenneth Boss in the 1999 fatal shooting of unarmed West African immigrant Amadou Diallo, said it helps Pantaleo’s case even if his lawyer is barred from using the information in court.
“This split is out there now in the court of public opinion,” Brounstein said.
“But I don’t believe I would be entitled to the opinion of the Brooklyn prosecutors’ office and I don’t think the original case agent would be allowed to give his opinion as to whether it reached the level of civil rights violation.”
The federal civil rights criminal case would hinge on proving that Pantaleo “intended” to violate Garner’s civil rights, which is a high threshold because it aims to get inside the cop’s head when he brought Garner to the ground.
The feds would not have to prove that Pantaleo intentionally killed Garner.
The Patrolmen’s Benevolent Association has argued the cop did not use a chokehold.
Defense lawyer Eric Franz said he would seek any prosecutorial memos regarding justification of a federal civil rights charge to examine the factual reasons behind the Brooklyn office’s recommendation, but agreed it remains a longshot.
A greater problem is the damage this dispute is doing to the Justice Department’s credibility, Franz said.
“I have enormous respect for Mr. Capers (Robert Capers, Brooklyn U.S. attorney) and his office and they were in the best position to determine whether charges are warranted,” he said.
“These media reports can taint the potential jury pool with the knowledge that there were prosecutors who recommended against proceeding with the case and jurors could view the indictment as a political decision.”
Lynch’s predecessor, Eric Holder, had ordered the department to open a civil rights investigation in February 2014 after a Staten Island grand jury declined to indict Pantaleo on a homicide charge.
The Daily News first reported that prosecutors began presenting evidence to a grand jury in Brooklyn Federal Court in February 2015.