I Can't Breathe

by Matt Taibbi

  In Annan’s case, he was hit with a total of seven criminal charges as he recuperated in the hospital: assault in the second degree, assault in the third degree, obstructing government administration in the second degree, resisting arrest, criminal possession of a weapon in the fourth degree, criminal possession of marijuana in the fifth degree, and unlawful possession of marijuana.

  The idea was to get Annan to plead to any one of these charges.

  As time passes in these cases, the state becomes more and more flexible, and the offers get better and better. Suddenly, instead of real time and heavy fines, they’re offering community service and a few days in jail.

  In New York, they may even offer an ACD, or adjournment in contemplation of dismissal, which is basically a promise by the state to make the charge disappear if the defendant stays clean for a year or six months.

  Most innocent people will hesitate to plead to any criminal offense, no matter how trivial, just to avoid having a record at all.

  “What are you going to do,” asks Joe Doyle, Eric Garner’s Legal Aid attorney, “explain to your prospective employer the difference between criminal mischief in the second degree and criminal mischief in the third? A record is a record.”

  But an ACD is different. An ACD means that after a very short period of time, the whole thing goes away.

  But taking an ACD kills your shot at a malicious prosecution suit. So if the police beat you up and they offer you an ACD—the law enforcement equivalent of a gift fruit basket—now you’re in a no-win situation.

  The criminal defense lawyer will want you to take the deal.

  Your civil lawyer will want you to fight, to preserve the lawsuit.

  Here’s another twist. In a lot of these cases, the state will start off with a charge that sounds deadly serious, like a felony assault on a police officer. But then, four or five court appearances down the road, they may suddenly knock the charge down to B misdemeanor assault.

  Why? Because felony cases are heard by juries. A B-level misdemeanor in New York goes to a bench trial.

  In a place like Staten Island, the black defendant is suddenly faced with the possibility of taking on the unholy trinity of a district attorney, police witnesses, and a law enforcement–friendly judge.

  Even if someone like Annan is completely innocent and there’s no evidence to convict him, he’s now got to put his fate in the hands of a system that has already proven itself at least somewhat corrupt by letting the case go toward trial in the first place.

  “Pick your poison,” is how one defense lawyer put it. “You can either plead to something small that you didn’t do and kill your lawsuit, or you can draw a line in the sand, keep your lawsuit, and risk getting fucked in court.”

  After two agonizing years of wrangling, Annan and his smooth-talking, nattily dressed attorney, Gregory Watts, have managed to get almost all the way to the finish line with the chance at a lawsuit still intact. Watts, who’s been doing this a long time, didn’t flinch at any of the state’s weak offers.

  He and Ibrahim kept choosing to take their chances, and the state kept screwing up along the way.

  The DA’s behavior in the Annan case can only be described as a kind of arrogant incompetence. Prosecutors so routinely get away with so much that sometimes—and this case is one of them—they show up in court with nothing at all in hand and still expect judges to wave them through to trial anyway.

  In Annan’s case, the DA crucially called just one witness at a probable cause hearing: Officer D’Albero, who as it happened was the second officer on the scene.

  It was eagle-eyed officer Dominick Raso, and not D’Albero, who allegedly spotted Annan waving his baggie of weed around for the world to see. That meant D’Albero was not able to tell the court what the probable cause was supposed to be for pulling Annan out of the car and beating the crap out of him.

  Whatever their reasoning, the state’s decision to bring in the useless witness D’Albero to make their case put the judge on the spot.

  A short, carefully groomed man with glasses and a neatly trimmed goatee, Judge Rodriguez seems a smart, quick-witted, and fair jurist, a contrast to a lot of the splotchy, pinkening hacks on the New York bench.

  Older judges will sometimes take their time in court and engage in weird and irrelevant discussions about sports, the weather, the attire of female jurists, whatever, because they know no matter how fast they go, the docket never clears. Try hard or don’t, the system is always clogged.

  Younger judges, however, occasionally seem annoyed while the lawyers standing before them babble on and drop piles of weak motions on the court. Rodriguez is one of these judges. In court, you can see his brain speeding up to amphetamine levels to hurry the participants along, often finishing the sentences of the lawyers.

  This judge had more than a year to become exasperated by the Ibrahim Annan case. For one thing, he clearly grasped the brutality angle. At a hearing in the summer of 2015, Watts offhandedly mentioned that he planned on pursuing a suit against the county for breaking Annan’s leg.

  Rodriguez quipped, “I bet you will,” and moved him along.

  In subsequent hearings, the state made life tough on Rodriguez by giving him nothing to work with. Even if he wanted to be a good soldier and let the DA pressure Annan into submarining his lawsuit by pleading to something, the county tied his hands by handing him a nothingburger on the probable cause front.

  After nearly two years, Rodriguez now explained that he had to kill six of the seven charges against Ibrahim.

  “There is no detail of the probable cause for the seizure of Mr. Annan when he was in his car [at] a private residence,” said the judge, throwing up his hands.

  Rodriguez impatiently explained that if there was no legal reason to enter the car, then the DA couldn’t introduce evidence of the alleged weapons (a lighter and an aerosol can that Raso claimed Ibrahim held up as he said, “If you open the window I’m going to burn you!”) or the bag of weed. Since there was no legal arrest, he couldn’t be charged with resisting it. And as for the omnipresent “obstructing government administration” charge, even that was a nonstarter in this case.

  “The theory of obstructing government administration was Mr. Annan’s alleged failure to obey a lawful order to exit his vehicle,” the judge sighed. “But that has all been suppressed.”

  The judge stared forward and explained that all that was left was a single charge, Annan’s alleged assault upon the officers as he was getting his ass kicked. “All that is left is the assault three,” the judge explained.

  The judge told the young female prosecutor that if the city wanted to proceed with the assault charge, they would have to do so without explaining the story of cops pulling Annan from his car, finding a baggie of weed, being threatened by a lighter and an aerosol can, the ostensible resisting of arrest, or anything else. The case would be a bizarre tale of a man suddenly and without context assaulting two officers on the streets of Staten Island shortly before having his leg broken in three places.

  The judge stared, clearly hoping that the young ADA would drop the charges and remove this ridiculous, time-consuming, and incidentally quite plainly corrupt case from His Honor’s docket.

  The ADA said nothing.

  Here Watts thought it might be worth chancing a word or two.

  “Your Honor,” he said. “In light of your rulings—this raises the question of whether the people can proceed…”

  Rodriguez turned to Watts and flashed a sharp glare. Nice try, but he wasn’t going to dismiss the case. “No, they can try,” the judge said, nodding toward the prosecutor as if to say, It’s their funeral.

  Then Rodriguez suddenly turned to the ADA again and pointed. “Understand this, though,” he said. “I’m not going to let you reduce this to a B misdemeanor. If you want to try this, it’s going to have to be before [a jury of] men and women.”

  As plain as day, Rodriguez was telling the prosecutor that if she wanted to chance this weak
case, she wasn’t going to be able to pull the old “Let’s get this to a bench trial so a Staten Island judge can rubber-stamp us out of our brutality beef” trick.

  The ADA was mute. Rodriguez lectured onward. “If you want to try this case,” he said, “you’re going to have to think about this court’s ruling.”

  Again the judge waited for the prosecutor to drop the case. She refused. She wanted him to set a trial date. The judge’s eyes looked ready to burst out of his head. He asked when the prosecutors would be ready, a loaded question since the state had claimed not to be ready to produce witnesses over and over again for nearly two years.

  “We can be ready in two weeks,” the prosecutor said.

  The judge glared once more. The idea that the state would be ready to go to a jury trial in two weeks on a case with no admissible evidence was total BS and everyone knew it. The only possible reason the state could want to set a trial date would be because it needed the extra time to try to pressure Ibrahim into a plea.

  “You’re not going to be ready in two weeks. When are you really going to be ready?” Rodriguez snapped. He pointed at Ibrahim. “This gentleman’s been coming to court for nearly two years.”

  “We’ll be ready in two weeks,” she repeated.

  The judge sighed, rolled his eyes, then shrugged. “Okay, then,” he said, looking down at his calendar. “January nineteenth?”

  The ADA nodded. “Yes, Your Honor.”

  He shook his head. “Trial set for January nineteenth.”

  In the hallway after the hearing, Watts shook his head in disbelief. Asked if it wasn’t good news that Rodriguez had at least not allowed them to get a bench trial on the assault charge, he hedged.

  “Well, yeah, sure. The judge was trying to do the right thing,” he said. He nodded toward his client. “But on the other hand, a jury trial in Staten Island is no sure fucking thing either.”

  Ibrahim grabbed his cane and walked to the exit. He had a difficult decision. He could give up his lawsuit, or he could risk letting a Staten Island jury hear a white police officer tell a story about being attacked by a crazy black man. He had two more weeks to think about it.

  Two weeks later it was more of the same, only with a twist. In October, Ibrahim had been pulled over and charged with driving without a license. The DA now tried to leverage the traffic case into a plea on the assault case: if Ibrahim took a plea on the latter, they’d make the former go away. Watts said no.

  In court, the city once again told Judge Rodriguez they weren’t ready to proceed on the assault case. Trouble with a witness, they said. He asked how long they’d need. “Two more days, Your Honor,” was the answer.

  The judge sighed and set yet another court date for a month later. In the hallway, Watts shrugged.

  “It’s just Staten Island,” he said.

  Finally, the next evening, on January 20, Ibrahim got some news. The city dropped the charges. He didn’t harbor any illusions about the officers who broke his leg ever being disciplined, but he was at least finally free to sue the city.

  He was back to even, down only a healthy leg. It had taken 658 days.

  SIXTEEN ERICA

  Throughout the year after her father’s death, Erica increasingly found herself feeling depressed. The loss of her father weighed on her heavily.

  Taking up his cause had forced her into a detective-like role, retracing the movements of his last months and days. This process kept him alive in her heart but also made her feel his absence more keenly. She would hear a story she’d never heard before, like him telling police “It’s too hot” to go to jail on the day he heard of Eric Jr.’s scholarship, and she’d laugh with recognition, as though he were still there, just for a moment.

  But he wasn’t. He was gone.

  As the year progressed, she watched as people all around her were pulled this way and that, while she remained focused on her father’s case. People would say to her, “I just want to hurry up and get all of this done, so I can just move on with my life.”

  And she would be sitting there, screaming inside: “Move on from what?” There’s no closure. This doesn’t go away. It just is. She couldn’t imagine what forgetting would even feel like. The idea frightened and offended her.

  At times, thinking about all of this consumed her to the point where she felt like she needed help of some kind. Maybe she should go into therapy, she thought. But how?

  Like Ramsey Orta, who often wondered if he was living the fugitive life intended for Daniel Pantaleo, Erica often compared her situation to that of her father’s killer. Pantaleo, after all, still had public health insurance and twenty-four-hour police protection. If he was feeling sad, the state would pay for his counseling. How come the families of brutality victims had no access to mental health care?

  Moreover, as the story continued to stay in the headlines, she found out the hard way how many other pitfalls there were to being in the middle of a high-profile case.

  During one of her ferry protests in the heart of winter, an operative for Project Veritas, the media organ of reptilian right-wing activist James O’Keefe, braced Erica on the ferry and tried to ingratiate herself with her and other protesters.

  The Veritas prankster, a white woman who called herself Laura Lewis, tried to demonstrate how down she was by showing around a picture of her “black boyfriend” on her phone and said her boyfriend had been the subject of police harassment.

  She then started telling people she thought the murdered officers Liu and Ramos “got what they deserved,” apparently hoping to score a “right on” from someone in the crowd.

  Some people walked away from her, and Erica was certainly wary. At one point, “Laura” asked her what she thought of Al Sharpton, and Erica shrugged and rubbed two fingers together, as if to say, “He’s all about the money.”

  The resulting video became a huge hit in conservative media, which relished the idea of the hated Reverend Al taking a haymaker from the sainted family member of a brutality victim.

  Erica felt violated. She had somehow been sucked into a larger controversy between groups of people who always had and likely always would despise each other. A lot of energy was devoted to this nonsense, but increasingly, she saw, very little went toward the matter of getting any answers in her father’s case.

  She was surrounded by people who wanted a piece of her for one reason or another, but none of them wanted quite the same things that she did. There was always some larger cause that she was being recruited for, while the number of people helping out with her specific desire to get to the bottom of Daniel Pantaleo’s past kept dwindling.

  —

  Throughout that winter, Dan Donovan’s campaign slowly gathered momentum. In a preview of the polarizing politics that would grip the country’s presidential election a year later, Donovan was passionately supported by white Staten Islanders who saw him as someone who’d stood up to “political correctness,” Al Sharpton, and the idea that white Americans are racist.

  March 22, at a Queens restaurant called Antun’s, a sprawling middle-class banquet hall, the sort of place where young white kids from the outer boroughs hold wedding receptions for their starter marriages. On this date the Queens Village Republican Club holds its 140th annual Lincoln Dinner, raising money for party causes. The hundred-dollars-a-plate ceremony is supposed to feature conservative media personalities Steve Malzberg, Bill Kristol, and Donovan, whose upcoming election is a cause célèbre in local conservative politics.

  A long line of speakers comes to the lectern, each one giving brief remarks before offering awards to local businessmen and police. Much of the content of these speeches is pure dog whistle. There’s a lot of talk about liberal politicians lowering standards in schools to make life easier for an unnamed political constituency that apparently doesn’t like to work hard.

  “Diversity is always encouraged,” says one speaker. “But we cannot achieve greatness by lowering standards.”

  David Lee, a conservative
“education advocate,” concurs. “Abraham Lincoln didn’t go to school,” he says. “He just worked hard. That work ethic is under attack.”

  The speakers go on to honor police officers, who “don’t care about the race of the person, don’t care about the gender of the person, they don’t care about the class, they just try to save a life.”

  Late in the ceremony, Joseph Concannon takes the stage. The events of the last year have confirmed his every suspicion and fear about politicians like Bill de Blasio, Barack Obama, and Al Sharpton. His take on all of them is that they talk a big game about the problems of the inner city, but only from a distance. Bill de Blasio is the offspring of a bunch of Ivy League ancestors who grew up in Cambridge. Al Sharpton, he believes, lives in a gated community in New Jersey.

  For them to rant and rave about communities that the police engaged every day “didn’t play.” Politicians were out of touch with the rank and file and used people like police officers as political props to get ahead. Concannon didn’t believe people paid too much attention to Ramsey Orta’s tape; he believed they paid too little attention to it. He believed that if people watched the whole tape, they’d see what he saw: disrespect for the law, contempt for society, a refusal to abide by the responsibilities of a civilized people.

  Concannon explained all of this to the crowd, playacting a police call and reflecting upon the dangers that police face. He spoke to the assembled about law and order, “the very fabric that binds us together and makes us a civilized society.” He pooh-poohed the Garner tape without mentioning it by name. “Some people like to pick apart an eight-second video,” he said and went on to denounce politicians like de Blasio and Obama, against whom he would continue to fight.

  “We will be out there until the dangerous and irresponsible rhetoric emanating from the mayor and the president stops,” he said.

  Not long after, Donovan himself came to the stage. In person he seems to have a long neck ending in a small blond head, like a yellow lollipop. He had this crowd on his side and decided not to make any waves, announcing only that he and his girlfriend Serena Stonick were about to have their first baby. “I say that to get women to vote for me,” he quipped.