Speaking about the Eric Garner case, Judge Mollen does not see larger problem with NYPD accountability

By LOUIS FLORES

Milton Mollen, the highly-respected former judge and an attorney now in private practice, was interviewed by Progress Queens about his thoughts on the current debate about police reform.

Judge Mollen was chosen to chair a commission empaneled in 1992 by former Mayor David Dinkins (D-New York City) to investigate corruption at the New York Police Department, or NYPD.

Former Judge Milton Mollen, seen here in a 2013 interview on CUNY TV 75, served as the chair of a famous investigatory panel appointed by former Mayor David Dinkins in 1992 to investigate corruption at the New York Police Department.  Judge Mollen spoke with Progress Queens in a wide-ranging interview about the raging debate calling for policing reforms.  Source :  CUNY TV 75/YouTube Screen Shot

Former Judge Milton Mollen, seen here in a 2013 interview on CUNY TV 75, served as the chair of a famous investigatory panel appointed by former Mayor David Dinkins in 1992 to investigate corruption at the New York Police Department.  Judge Mollen spoke with Progress Queens in a wide-ranging interview about the raging debate calling for policing reforms.  Source :  CUNY TV 75/YouTube Screen Shot

Before Judge Mollen addressed specific cases driving the public discussion about policing issues,  Judge Mollen reviewed in broad strokes the work by the investigatory commission that eventually took his name.  He pointed to a major corruption bust that took place at the 30th Precinct station house up in Harlem in 1994, in which 33 police officers were arrested in a wide ranging corruption sweep that spun off from work done by an investigator, who originally worked on the Mollen Commission, as an example of the work and reform that came about as a result of his commission.

In an interview with Progress Queens about the current public debate about the need for further police reforms, Judge Mollen cautioned that there was a difference between police corruption and police misconduct. 

“The matters that are now in the public eye are not police corruption,” Judge Mollen said.  Speaking of his experience in investigating police corruption, Judge Mollen said, “We were looking into criminal intent or criminal actions,” adding, “We were looking at wrong-doing.”

Questions of judgment

In spite of the perception that there was a lack of independent oversight that would hold police accountable for a pattern of misconduct today, Judge Mollen made very narrow or strict observations about the raging public debate demanding policing reforms.  Speaking generally, Judge Mollen frequently expressed viewpoints through the prism of judgment :  whether police officers were using right judgment in their actions and whether the district attorneys were using right judgment in how they presented cases to grand juries.

When a case goes before a grand jury, Judge Mollen said, “The D.A. calls the shots on that.” 

During the interview with Progress Queens, Judge Mollen added that his experience as a former judge showed him that police testimony had to be scrutinized.  He cited an example of a police officer, who changed his testimony during a trial over which Judge Mollen had presided, in which the police officer’s testimony was different from the police officer’s affidavit, which had been submitted into evidence. 

Of that one vivid example that Judge Mollen recalled, where an officer changed his testimony at trial, Judge Mollen said, “I blew my stack at that.  He,” referring to the testifying police officer, “was changing his testimony.  I was furious with it.”

Judge Mollen’s recollection about a police officer changing his testimony would provide some background in his discussion of the Garner case, particularly when Judge Mollen spoke of the description of the chokehold.

Of the Garner case generally, Judge Mollen told Progress Queens, “I don’t know what the D.A. and the police did to present their case in terms of the grand jury.”

Asked over and over again, sometimes in different variations, whether there was a way to link the public’s perception that there was a lack of accountability for police misconduct with police corruption, Judge Mollen said any attempt to do so would create an erroneous impression.

Notwithstanding, Judge Mollen appeared to make a carve-out in his remarks about conduct when it came to the use of force in the Eric Garner case.

Mr. Garner died on July 17 after he was placed in a chokehold by NYPD Officer Daniel Pantaleo.  The medical examiner ruled Mr. Garner’s death to be a homicide.

Judge Mollen rhetorically asked about the NYPD officers, who were involved in taking Mr. Garner into police custody :  “Did these officers exercise judgment ?”

To Judge Mollen, judgment was different from legality. 

“There’s a difference of opinion if police conduct is illegal,” Judge Mollen said.

In wide-ranging comments, Judge Mollen spoke about an array of issues that needed to be examined, and not just from the perspective of a judge, for example, from assumptions the public makes about police misconduct to the threshold a district attorney needs to meet in order to get an indictment from a grand jury.

In cases where police take into custody a person, who is resisting arrest, Judge Mollen said, “Police have to make a judgment,” then adding that questions could arise if a police officer exercises wrong judgment.

Of Mr. Garner, Judge Mollen said, “This fellow didn’t want to be handcuffed,” adding, “You have the additional factor that the police were told not to use chokeholds.” 

Of Officer Pantaleo, who subdued Mr. Garner with what everybody appears to call a chokehold, Judge Mollen said, “He’s trying to say it wasn’t a chokehold,” adding, “It looks like a chokehold.  I can’t be sure.”

Later during the interview, Judge Mollen again revisited the use of a chokehold on Mr. Garner, qualifying his statements by saying, “I’m not an expert on chokeholds, but it looked like to me like a chokehold,” further qualifying his observation by adding that the officer “applied something like a chokehold” to Mr. Garner’s throat.

Judge Mollen noted the contradiction in Officer Pantaleo's description of his actions compared to what everybody saw in the video.  "He denies it," Judge Mollen said of Officer Pantaleo's assertion that he did not use a chokehold.

When asked during the interview with Progress Queens whether questions about the Garner case were questions of fact for a trial to decide, Judge Mollen would not directly address the issue.  However, Judge Mollen himself would raise questions about aspects of the Garner case.

After Judge Mollen repeated that Officer Pantaleo denied using a chokehold, Judge Mollen kept returning to the same question : “Was it good judgment ?  That’s another factor.”

After the Staten Island grand jury voted not to file criminal charges against Officer Pantaleo, many lay minds have second-guessed the grand jury’s decision.  In Judge Mollen’s discussion of the Garner case, his perspective offered access to the thinking of a sharp legal mind, but one that took a strict, limited view of the facts of the case.

Judge Mollen also took issue with the use of numerous officers to take Mr. Garner into custody, questioning the need “to use four, five cops to arrest a person for selling cigarettes.” 

Another issue that Judge Mollen considered, in discussing the Garner case, was the decision made by the police officers to take Mr. Garner into custody in the first place. 

Judge Mollen spoke to various aspects of the issues surrounding the Garner case, as one would expect from a former judge, who must listen to all sides.

Seeing a variety of considerations

Of the decision that police officers make to arrest an individual, Judge Mollen said, “That’s a judgment police make,” noting that a press report had previously shown that police had once let Mr. Garner go with a warning, without making an arrest, saying, “He had been warned once before and let go.”

Saying of the judgment police officers used to not arrest Mr. Garner during the prior encounter, which had only led to a warning, “That’s one approach.”

The prior warning was a talking point that Patrolmen's Benevolent Association President Patrick Lynch had used to show that police had given Mr. Garner ample warning before making the arrest that took Mr. Garner’s life.  However, Judge Mollen, in his discussion of the case, looked for nuance even in the prior warning.

“This time," speaking of the confrontation on July 17, "I don’t know if it was the same officers, who had previously let him go,” Judge Mollen said, alluding to a factor that could merit legal consideration.

Notwithstanding the many questions of judgment and fact that Judge Mollen raised about the Garner case, he still made a distinction that was sure to frustrate police reform activists.

Saying of a failure to hold police accountable for misconduct, “That’s different than corruption.”

Even when pressed about how his own commission was empaneled, because the justice system could not independently investigate allegations of wrong-doing at the NYPD, Judge Mollen would not find any similarities between that and appearances that the justice system has failed to independently hold the NYPD accountable for misconduct that includes homicides.

In spite of his refusal to see any similarities, Judge Mollen did return again and again to issues about the Garner case, expressing worries about assumptions being made about the case, yet calling the circumstances in the Garner case “very unusual.” 

More than once, Judge Mollen seemed to question the heavy police response to allegations that Mr. Garner was only selling loose cigarettes. 

“It’s a very minor crime,” Judge Mollen said, alluding to the NYPD's controversial "Broken Windows" theory of policing.

When further pressed to identify what mechanisms exist to hold the NYPD accountable, Judge Mollen reflected about the 1994 chokehold death of Anthony Baez

“In some degree, it makes sense to get the federal government involved,” Judge Mollen said.

Judge Mollen recounted the fact pattern in the Baez case, even bringing up the issue of a warning that a police officer had issued to Mr. Baez before making the arrest that led to Mr. Baez’s chokehold death. 

Tempers flared

“The police officer was angry, grabbed the defendant, put him in a chokehold, killed him,” Judge Mollen recounted.

After the district attorney lost the case in a non-jury trial, “The community were offended, got the U.S. Attorney to file federal charges,” Judge Mollen said, noting that, “The U.S. Attorney’s Office found enough evidence to bring federal charges.”

At the end of that federal trial, the police officer, Francis Livoti, was found guilty of having violated Mr. Baez’s civil rights. 

When pressed to say whether the only recourse to keep the NYPD accountable would be to seek the prosecution of cases in federal court, given how there is a perception of a conflict of interest with district attorneys’ offices, Judge Mollen did not want to question the integrity of the justice system.

“I can’t tell you that’s the cure for the problem, if there is a problem,” Judge Mollen said.

At times, it was frustrating to expect Judge Mollen to share wisdom he gleaned from having chaired an independent panel that investigated the NYPD vis-à-vis the current discussion about the need for an independent mechanism to hold the NYPD accountable for patterns of misconduct that include homicide. 

Judge Mollen said that he was concerned that some of the differences in facts or cases could become technical.  “The public jumps to conclusions,” Judge Mollen said, worried that the public would assume that a form of corruption was at the core of the inability to hold the NYPD accountable.

At one point in the interview, Judge Mollen spoke about the “fine line” that one must weigh when determining whether “police acted unreasonable,” speaking of technicalities generally.

When pressed one last time about the inability to independently hold police accountable for misconduct and his own experience with chairing an independent commission to independently investigate the NYPD, Judge Mollen said, “It’s an unfair comparison.”

In spite of his desire to stay impartial, Judge Mollen finally admitted that “at worst, police showed poor judgment” in respect of the Garner case, calling the circumstances used by police “pathetic” and the outcome for Mr. Garner “unfortunate,” saying that certain facts were not contested in the case, such as when Mr. Garner repeatedly said, “I can’t breathe.”

Even though it was two decades ago when Judge Mollen was appointed to Mayor Dinkins’ panel, Judge Mollen spoke assuredly about policing issues, acknowledging the gravity of the Ferguson case.  Yet, Judge Mollen would only look at cases individually, refusing to find parallels that many, in the public, see as a pattern of a lack of accountability for police actions.

Of the complaints about police, Judge Mollen said, “It’s been blown up,” adding specifically about Mr. Garner, “It’s unfortunate for the deceased.  It’s unfortunate.”

A law and order man, who had spent decades of his life as a judge and, now, as lawyer in private practice, Judge Mollen said he did not want to make or add to larger assumptions being made about the need for policing reform, saying, “It was poor judgement, but it wasn’t corruption,” adding, “I don’t want to build it up.”

Judge Mollen used the words “poor judgement” to describe Officer Pantaleo’s decision “to use a hold that they are told is not legal, to use it or something close to it.”

More than once, Judge Mollen looked at the Garner case strictly in terms of conduct, as opposed to corruption, even though one of the questions asked of him was whether there needed to be an independent way to hold NYPD accountable for patterns of misconduct.  At one point, Judge Mollen denied that police officers engaged in widespread misconduct, saying that police are not going around killing people indiscriminately with chokeholds, adding, “There’s no indication.”

On Monday, though, The New York Daily News reported statistics that showed that, in the last 15 years, on-duty NYPD officers were involved in interactions with the public that resulted in 179 deaths.  The period of tracking in that report ended with the November shooting death of Akai Gurley.  Since that report, an NYPD officer shot and killed another man, Calvin Peters, even though he had a history of having mental health needs. 

Some police reform activists claim that a system that fails to hold police accountable is, by design, a form of corruption that prevents the administration of justice, especially in cases of excessive force, brutality, and homicide committed by police.

To qualify his narrow analysis of the Garner case, for example, Judge Mollen observed that the police were not trying to extort money out of Mr. Garner as police officers have been shown to extort money out of people in the past.  Since Judge Mollen didn’t see obvious criminality according to what he knew, Judge Mollen would not entertain questions about the need for an independent way to prosecute police misconduct.

It’s important to note that the Mollen Commission and a previous police reform panel before it, the Knapp Commission, were denied powers to independently prosecute their own cases.  Further, in the Mollen Commission’s final report, issued in 1994, the panel recommended the creation of a permanent panel to investigate corruption, but the recommendation stopped short of advocating that that panel should have the authority to prosecute its own cases, believing that district attorneys could handle prosecution. 

Since the Mollen Commission focused solely on corruption, there was a failure to address other forms of police misconduct.  Under the caustic administration of Mayor Dinkins’ successor, Rudolph Giuliani crafted the permanent panel created by the Mollen recommendation as a toothless agency that issues topical and yearly reports, and not much else. 

For all his legal training and experience in parsing through complicated issues, Judge Mollen failed to see, or failed to publicly voice, the nuances in the inability of today’s NYPD to “insure the integrity of its members,” a finding his own commission made two decades ago.

To be fair to Judge Mollen, his training and background guides him to look at issues from all sides, not necessarily a viewpoint that would satisfy activists pressing for an overhaul of policing in communities like New York or Ferguson.  Although it’s apparent that he still follows policing issues, it’s not known to what granularity he follows cases to appreciate or to relate to the patterns of misconduct that police reform advocates say that they see.

Looking for official accountability

Separately, the press office of Mayor Bill de Blasio (D-New York City) was asked by Progress Queens about NYPD Commissioner William Bratton’s commitment to aggressively address patterns of police misconduct when, in the fall-out of the issuance of the Mollen Commission’s final report two decades ago, Commissioner Bratton, then under the Giuliani administration, ignored a detailed memo prepared by Walter Mack, the former Deputy Commissioner for Internal Affairs, who reported about “patterns of abuse and corruption complaints in several precincts in central Brooklyn, upper Manhattan and the Bronx.”

As has become typical for City Hall, Mayor de Blasio’s press team did not answer Progress Queens’ question.

Police reform activists pressing for an overhaul of the NYPD have begun to organize into two new groups, This Stops Today and Justice League NYC.  Both groups seem to try to supplant two long-standing groups active in police reform issues, which were most recently extremely visible in the fight against the NYPD’s unconstitutional use of stop-and-frisk, Communities United for Police Reform, or CPR, and the Police Reform Organizing Project, or PROP.

Neither This Stops Today, Justice League NYC, CPR, nor PROP call for the outright resignation of NYPD Commissioner Bratton.  Only one group, New Yorkers Against Bratton, is leading the charge in calling for Commissioner Bratton to resign, amongst other reforms.  Meanwhile, less than a handful of activists are openly calling for the creation of a new commission, this time authorized to prosecute its own cases, to independently investigate the NYPD free of the political machinations of City Hall, the City Council, the police unions, or the district attorneys' offices.

Calls by State Attorney General Eric Schneiderman (D-New York) to be appointed as an interim, special prosecutor in police corruption and misconduct cases flies in the face of the fact that his own office remained silent as Gov. Andrew Cuomo (D-New York) reportedly interfered with, and later dismantled, a commission created to investigate political corruption.  Unbelievably, Gov. Cuomo, with his record of reportedly obstructing investigations that he finds unpopular, promises to propose a new mechanism to investigate and prosecute police misconduct.  

Another temporary solution, proposed by City Council Speaker Melissa Mark-Viverito, to open satellite offices of the Civilian Complaint Review Board, or CCRB, across the five boroughs ignores the fact that the head of CCRB has been accused in a federal lawsuit of having made a “decision to collude” with NYPD to conceal police misconduct.  Moreover, in a move that troubled government reform activists, as well as police reform activists, Speaker Mark-Viverito retaliated against a whistleblower, who exposed what the whistleblower called inaccuracies in statistics about police use of force presented during City Council testimony by Commissioner Bratton.

In contrast, in Mexico, where police misconduct and corruption is widespread, the police-involved kidnapping and presumed murder of 43 Ayotzinapa college students has led to the resignation of the governor of the state where the disappearance took place, and the mayor, and his wife, of the town, where the students attended college, have been arrested.  Impatience with the pace of police reforms have even motivated activists to demand the resignation of Mexican President Enrique Peña Nieto.

As police reform activists in the New York organize to hold police officers accountable for misconduct that includes patterns of excessive use of force, brutality, and homicide, only a few activists are demanding official accountability for failures of leadership and oversight over the NYPD.