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Going Through the Motions: Prosecutor’s Strategy Doomed Bell Verdict

Ann Schneider May 16, 2008

Queens District Attorney Richard Brown is responsible for the sham trial that resulted in the acquittal on all charges of the three trigger-happy cops who pumped 50 bullets into Sean Bell’s car and its surroundings. Better to offend all notions of justice than to court a mutiny from the forces of the NYPD upon whose good relations he depends for his all-important conviction rate. Miscarriage (or abortion, as so aptly put by the Rev. Al Sharpton) of justice was an inevitable result of this fundamental conflict of interest.

Poor preparation of witnesses and poor trial strategy enabled Officers Michael Oliver, Gescard Isnora and Marc Cooper to walk free. I entered Judge Arthur Cooperman’s courtroom one afternoon, mid-trial. From the information being elicited, I guessed it was the defense lawyer questioning the witness. But it was the prosecuting attorney, establishing that the officers had heard of as many as three guns inside Club Kalua that night. Thus, Assistant District Attorney Charles Testagrossa, who was supposed to be prosecuting the three officers, established a justification defense for them!

Worse, the prosecution chose to introduce the grand jury testimony of each officer. This was a serious strategic mistake, because it allowed the defendants to remain silent. Since it is the prosecution’s burden to prove guilt beyond a reasonable doubt, a defendant always has the choice to testify or not. In a criminal case, a judge may not draw “a negative inference” from the fact that a defendant chooses not to testify.

We know that the police planned to offer as a defense that they were justified in believing that their lives were in danger. So to convince a judge or jury they had a reasonable belief they were being fired upon, they normally would have had to say something about their state of mind. Thus, they would have been subject to cross-examination, which could have yielded some interesting revelations. Instead, the prosecution chose to introduce their previous testimony at the grand jury, lessening their need to speak in their own defense.

Proof that this was a disastrous choice is the fact that the defense team’s strategy changed six weeks into the trial. After the prosecution rested, the police defendants decided that they no longer needed to testify.

The Detectives Endowment Association spent $700,000 on ballistics experts to discredit Trent Benefield’s claim he was shot as he ran down Liverpool Street. It allowed the judge to say Benefield’s credibility was “seriously impeached” and allowed him to conclude that the prosecution did not disprove the claim of self-defense. As union president Michael Palladino said, it was “worth every penny.”

But at least Palladino is open about who he represents. One can only conclude that the motive of the Queens District Attorney’s office in the prosecution was to create the appearance of doing justice, without its heavy consequences. Again and for all time, the Sean Bell debacle shows the continuing need for a special prosecutor in cases of police misconduct, a prosecutor whose interests are independent of the NYPD.

Links to previous coverage of Sean Bell shooting and trial:

Preventing the Second Death of Sean Bell, A First Person by Nicholas Powers

Three Cops Acquitted in Killing of Sean Bell
Linking the ‘Dream’ to Today’s Reality by Alex Kane

50-Shot Cops Duck Jury Trial in Sean Bell Case by Erin Thompson

Cops Face the Grand Jury by Ann Schneider

Why I Joined the Vigil for Sean Bell: A Letter from an Activist by Kevin Powell

Heart of Darkness: Pursuing Justice and Keeping Sean Bell’s Memory Alive by Nicholas Powers

District Attorney Stalls on Interviewing Shooter Cops by Ann Schneider

NYPD Story Full of Holes by Mike Burke