While the lack of an indictment in the death of Eric Garner has upset many, legal experts believe that the District Attorney never actually wanted Police Officer Daniel Pantaleo be indicted. That's because the grand jury follows the case that the prosecutor lays out. According to Pantaleo's lawyer, the cop had a specific message for the grand jury, "He wanted to get across to the grand jury that it was never his intention to injure or harm anyone. He was really just describing how he was attempting to arrest someone."
Pantaleo administered a fatal chokehold to Garner on July 17. Garner, who was suspected of selling loose cigarettes, was shown in a video arguing with the police, swatting their hands away and saying, "Don’t touch me, please." Then Pantaleo put him in a chokehold while other officers struggled to pull him to the ground and get his arms behind his back. Garner, an asthmatic, can be heard repeatedly saying, "I can't breathe."
While Pantaleo got to testify in front of the grand jury for two hours, the New Yorker points out, "Most potential defendants don’t get that chance." From the Times:
“In the majority of cases, defendants do not testify in front of a grand jury,” said James J. Culleton, who has represented police officers in high-profile police shootings, including those of Amadou Diallo and Sean Bell.
But police cases are different, he said.
“The justification defense — put it in front of the grand jury,” he said. “I believe the grand jury wants to hear what a police officer has to say. What happened? What was happening around him at the time?”
Pantaleo said he was backed up against a window while restraining Garner, and he was worried he and Garner would have fallen through the window. The Times reports:
On the video, the men toppled to the ground, but the arm around Mr. Garner’s neck did not appear to move. Officer Pantaleo told jurors he continued to hold on to Mr. Garner as he struggled to regain his balance, Mr. London said. He said he wanted to make sure that Mr. Garner was not injured by other officers rushing in, as well as to prevent Mr. Garner from possibly biting one of them.
On the video, Mr. Garner, 43, can be heard saying that he could not breathe. Officer Pantaleo told the grand jurors he heard those pleas.
“That’s why he attempted to get off as quick as he could,” Mr. London said. “He thought that once E.M.T. arrived, everything would be O.K.”
This account does not seem to match what is seen on the video, with Officer Pantaleo holding firm and not appearing to hurry to get off Mr. Garner.
Mark Fonte, a Staten Island-based criminal defense attorney, told the Staten Island Advance that Pantaleo's testimony was "a major factor. Only he can explain why he did what he did. Nobody else can know what he was thinking."
Second-degree manslaughter would have required the grand jury to find there was reasonable cause to find that Pantaleo had recklessly caused Garner's death. Recklessness is legally defined as disregarding or being indifferent to the consequences of one's actions, said Fonte.
Criminal negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances, he said.
Reckless endangerment entails recklessly engaging in conduct, which clearly shows a depraved indifference to human life and creates a grave risk of death to another person.
Fonte added, "I'm disappointed in the result. I believe the officer's actions were not necessary to effectuate the arrest of Eric Garner. It seems to me there was a better way to handle the situation with Eric Garner. No person should lose their life for selling loose cigarettes." But another criminal defense attorney, Patrick Parrotta, said, "I don't think the officer intended to cause his death, and he had no way of knowing Eric Garner was asthmatic and diabetic. The grand jury, even after viewing the video must have concluded that the officer didn't intend to cause Eric Garner's death, and his actions weren't criminally negligent or criminally reckless."
Still, the Medical Examiner's office considered Garner's other health issues and determined his death was a homicide.