Lawyer’s strategy in Livoti defense

June 23, 1998

Asked yesterday what his game plan is in defending ex-cop Francis X. Livoti - on trial yet again, this time in federal court - Stu London, the Patrolmen's Benevolent Association's legal Big Kahuna, answered in one word: "Justice."

To that end, London presented his first two witnesses: two cops, each of whom denied seeing Livoti use a choke-hold on 27-year-old Anthony Baez.

London's strategy appears to mirror that of Livoti's 1996 criminal trial in the Bronx, in which he was acquitted of criminally negligent homicide. A year later, however, that strategy failed to convince a police department judge, who recommended Livoti's dismissal for using a department-banned choke-hold that proved fatal to Baez.

In his Bronx trial, Livoti argued that it was not a choke-hold but asthma that killed Baez - a position London is taking in the federal trial, in which Livoti is accused of violating Baez' civil rights.

A third defense witness, Cyril Wecht, a forensic pathologist, is expected to contradict the testimony of the city's medical examiner, Charles Hirsch, who testified last week that Livoti intentionally choked Baez to death.

And a fourth witness, Capt. James Flanagan, is expected to testify that, contrary to claims of the Baez family, he did not selectively turn a tape recorder on and off when interviewing them at the 46th Precinct the night of Baez' death. He also is expected to testify that none of the Baez family members ever stated in those interviews that Livoti used a choke-hold. The family is suing the city for $63 million.

First up yesterday in federal court in Manhattan was Sgt. William Monahan, Livoti's supervisor the night Baez died - Dec. 22, 1994.

Monahan, who had been assigned specifically to monitor Livoti because of a series of brutality complaints, described a chaotic night: It began when a football Baez and his brothers were playing with struck Monahan's parked patrol car, which Livoti was driving and which he had parked next to another patrol car.

Monahan said Livoti never explained - nor did Monahan ask - why Livoti suddenly jumped out of the patrol car and arrested Baez's younger brother David, then brought him back to the patrol car. Nor did he explain why he subsequently arrested Baez, precipitating the struggle that ended with Baez' death.

Monahan also reiterated testimony from Livoti's Bronx trial about a black man who somehow appeared as Livoti and Baez struggled, then disappeared without a trace into the night.

"I saw a pair of black hands," Monahan testified. "I didn't see a body." Monahan testified that, contrary to the impression he and other cops gave at Livoti's Bronx trial, the black hands were "not near his Baez' neck" but "in the lower back area of Mr. Baez."

"I'm not saying these hands did anything," Monahan testified.

Police sources at the trial say the conventional wisdom now is that the mysterious black man was not merely a figment of Livoti's and his fellow cops' imagination, but an actual person believed to be a transit police officer.

Under cross-examination by Assistant U.S. Attorney Andrew Dember, Monahan also testified that he gave no account to police authorities on the night of Baez' death because of what is known as the "48-hour rule." Under the unions' contract with the city, officers are given up to 48 hours to consult with their attorneys before they are required to answer questions about their possible involvement.