January 14, 2007
So will the trial of the detectives who fired 50 shots at Sean Bell and his two friends — all unarmed — be moved out of Queens, like the trial of the cops who fired 41 shots at the unarmed Amadou Diallo was moved out of the Bronx?
The smart money says no — the case stays in Queens. But when it comes to New York State judges, especially appellate panels, who can be sure? These panels make up their own rules — sometimes based more on expediency than principle.
Unanswered question: do those rules provide a safeguard for cops or a legal loophole?
Let’s start with the Diallo case, in which four cops were charged with intentional murder for killing the unarmed African immigrant. Its appellate venue was the First Department, which includes the Bronx and Manhattan.
Getting the trial moved from the Bronx meant hiring Burton Roberts, the then recently retired former Chief Administrative Judge of the Bronx’s Criminal Term. As Chief Judge and Bronx District Attorney before that, Roberts knew the system, as they say, like nobody’s business. [He also knew the judges on the appellate panel.]
Roberts’s first move was to commission a poll of Bronx residents to show that the cops could not get a fair trial there. He raised $20,000 himself to pay for the poll after the Patrolmen’s Benevolent Association’s big-foot attorney Steve Worth refused to lay out the money. The poll found that 81 per cent of Bronx residents saw no justification for the cops to shoot Diallo.
That formed the basis of the change-of-venue appeal, which focused on pre-trial publicity, including the month-long, Al Sharpton-led demonstrations outside Police Plaza, as well as the New Yorker magazine’s provocative cover cartoon of cops firing 41 shots at a shooting gallery.
Of course, the four — all white — had no intention of having their case tried before a jury. In law enforcement circles, “Bronx juries,” as they are pejoratively called, are considered anti-cop and sometimes anti-white. If you doubt this, recall the case of Larry Davis, who in 1986 shot six cops but was convicted by a Bronx jury only of weapons possession.
Lawyers who defend cops long ago devised a strategy to counter this alleged bias. Whenever a white cop went on trial for shooting a black civilian in the Bronx, he waived his right to a jury trial and had his case tried before a judge — usually, an older white man.
That’s what happened when police officer Stephen Sullivan fatally shot Eleanor Bumpers, a black grandmother, during an eviction proceeding in her apartment, where, police alleged, she lunged at them with a 10-inch kitchen knife. In 1987, Sullivan went on trial for her murder. He waived his right to a jury and was tried by State Supreme Justice Fred Eggert, who acquitted him.
In 1996 when police officer Frank Livoti went on trial for killing Anthony Baez, an asthmatic, he, too, waived a jury trial. He, too, was tried by a white judge, Gerald Sheindlin. Sheindlin acquitted him.
In 1998, Michael Meyer, a white, off-duty police officer, shot Antoine Reid, an unarmed squeegee man and was charged with attempted murder. Judge John P. Collins acquitted him.
Now here is where things get interesting. In the Diallo shooting, the judge assigned to the case — supposedly at random — was Acting Bronx State Supreme Court Judge Patricia Williams. She was black. In law enforcement circles, she was regarded as anti-police.
As a lawyer on the Diallo case put it, “We were horrified by the thought of a jury trial in the Bronx. But if we waived a jury trial, we were scared to death to have it before Judge Williams.”
The appellate panel bailed them out. On the eve of trial, but before the cops announced whether they’d waive a jury and take their chances with Judge Williams, the panel voted to move the proceedings out of the Bronx..
Their decision short-circuited the judicial process of trying to choose an impartial jury. [If the Bronx has, say, a million people and 81 per cent think the cops had no justification to shoot Diallo, that still theoretically leaves a pool of 190,000 presumably impartial people, no?]
“There was no effort to even try and screen an impartial panel,” said Bronx D.A. Johnson. “I know that the judge, the defense and I were preparing to do that. It would have required some work and effort but it could have been done.”
Unanswered question number two: was the Diallo trial moved to avoid a Bronx jury or a certain black judge?
Now let’s return to Queens and the Sean Bell case, where two detectives are charged with manslaughter, a third with reckless endangerment. Here, we are in the Second Judicial Department.
The Second Department has its own rules. Unlike the First Department, past practice has been to begin selecting a jury before making a decision on whether to change the venue.
As Queens Boulevard’s eminent legal mind, Marvyn Kornberg, put it, “In the Second Department, you make your [change of venue] motion but they do not decide it until you try to pick a jury and show them you can’t.”
There are other differences. The pre-trial publicity in the Bell case does not approach Diallo’s. Yes, Mayor Michael Bloomberg’s initial public astonishment at the number of bullets fired at Bell was prejudicial, and yes, Sharpton has been Sharpton. But after Queens D.A. Richard Brown warned him that making too much of a ruckus could cause the very change of venue Sharpton opposes, The Rev. backed off some.
Then there is the assignment of the judge, Arthur Cooperman. He does not have Williams’s baggage. Even the detectives’ union considers him middle-of-the-road.
Finally, there are the intangibles, which suggest the case will remain in Queens. A courtroom — closed for the past few months — has just undergone a $150,000 renovation for the trial.
More importantly, D.A. Brown served for ten years on the same appellate court that will make the change-of-venue decision. As Roberts’s success in the Diallo case might indicate, when it comes to the state judiciary, never underestimate the value of cronyism.
No Scrooges at Intel. Guess who’s helping finance that
famous Intel Christmas party that nobody wanted to attend, which was finally
held last Thursday? City taxpayers. Sources say Intel officials offered the
inducement of two paid overtime hours to off-set the $75-a-head party fee.
Poor Deputy Commissioner of Intelligence David Cohen. Is he so unpopular that’s
the only way guys will come to his party?
The Big Sleeper. Why did Assistant Chief John Colgan want to avoid
taking a physical when he rejoined the department after a year’s absence
when his rabbi, Joseph Wuensch, returned as Police Commissioner Ray Kelly’s
Chief of Staff? If you’re gone for a year, you have to take the physical
before you return. Why didn’t Colgan?