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What the Hell Does it Take to Convict a Cop of Murdering a Civilian in America?

Peter Rugh Nov 10

Issue 230

Earlier this month, jurors at the New York State Supreme Court building in Brooklyn considered what, under different circumstances, would have been an open and shut murder case — save for one detail.

The victim, 37-year-old Delrawn Small, was driving home from a 4th of July barbecue last year with his girlfriend. Her 14-year-old daughter and couple’s 4-month-old son were in the back seat of the couple’s Kia sedan. On Atlantic Avenue in East New York a Nissan Altima nearly plowed them off the road. At the next red, Small got out of his car to confront the erratic driver. As Small approached, Wayne Isaacs, 37, drew a 9-millimeter and once Small reached his vehicle fired three shots, striking Small in the arm, abdomen and aorta. He later told investigators that Small had punched him, that he was frightened for his life and had acted in self-defense. A week later, surveillance footage emerged that showed no such blows were thrown: Isaacs shot Small the instant he reached his vehicle and without apparent provocation.

It might have been a slamdunk, except that Isaacs is a 4-year veteran of the NYPD. On the night he shot Small he had just finished a 4 P.M. to midnight shift at the 79th precinct and was returning home.

When, on Monday, Nov. 4, jurors — five black, five white, one Asian, one Latino — returned to the Brooklyn courtroom after three days of deliberations, they delivered a crushing blow to the victim’s family. They also once again raised a question that has long troubled advocates for criminal justice reform: Just what the hell does it take to convict a police officer of killing a civilian in America?

“I feel like my brother was killed twice,” said Small’s sibling Victor Dempsey, who attended a rally on Thursday at Union Square in Manhattan calling for Police Commissioner James O’Neill to fire Isaacs. The verdict “emphasized that his life didn’t matter.”  

While both Small and his killer were black, to critics of the verdict the differentiating factor appeared to have been Isaacs’ badge.

“If it was anyone of us that had taken the life of another citizen or a police officer, then we would have actually been held accountable to the law,” said Carmen Dixon, an organizer with the NAACP’s Legal Defense Fund, who noted that Isaacs was not initially arrested after the shooting. “Because Wayne Isaacs was a police officer, he was given preferential treatment every step of the way.” She accused the defense team of using “racialized fear tactics” to justify Small’s homicide.

Isaacs’ trial was the first test of a special prosecutorial unit overseen by New York Attorney General Eric Schneiderman and established by Gov. Andrew Cuomo in 2015 to tackle instances in which police kill civilians. Out of twelve initial investigations, five remain open.

In a press release, Schneiderman said he was “disappointed by the verdict,” thanked the Small family for their “courage and perseverance” and pledged to “continue to investigate these cases without fear or favor and follow the facts wherever they may lead.”

“We can’t rely on the courts as they are constituted in America to deliver justice to us. It has to come from the streets.”

The acquittal comes more than three years since police on Staten Island were filmed fatally choking Eric Garner — a father of six accused of selling loose cigarettes. A grand jury refused to indict the officer, Daniel Pantaleo, who placed Garner in a chokehold. While a Justice Department civil rights investigation remains ongoing, Ramsey Orta, who used his cellphone to document the incident and captured Garner’s now-infamous last words, “I can’t breathe,” is the only individual to have gone to prison in relation to Garner’s death. Orta, who alleges he is the victim of police harassment for his role in exposing the NYPD’s misconduct, is currently serving a four year sentence on drug and weapons charges at Fishkill prison, while Pantaleo and other officers involved remain on the NYPD payroll.

“How could this keeping happening?” Garner’s mother, Gwen Carr, asked in response to Isaacs’ acquittal. “They shouldn’t be above the law. They should abide by the same laws we abide by.”

Garner’s killing is one in a string of high-profile black civilian deaths at the hands of law enforcement across the country. Ferguson, Missouri, Baton Rouge, Louisiana, Baltimore, Maryland, Cleveland, Ohio and Saint Paul, Minnesota have erupted in protests over police-perpetrated killings. In each instance, Lady Justice’s scales appear to have tilted in favor of police. Here in New York, a long body count of civilian dead stands beside a record of men in blue walking free:

-In 2012, Officer Richard Haste, kicked in the front door of 18-year-old Ramarley Graham’s Bronx home and shot him in the presence of his grandmother and 6-year-old sister. Haste was charged with manslaughter but a Bronx judge vacated the indictment on a technicality and the prosecution declined to retry the case.

-Undercover officers attached to the 67th precinct in East Flatbush in 2013 fired seven bullets into 16-year-old Kimani Gray, three of which struck Gray in the back. The officers, Mourad Mourad and Jovaniel Cordova, claimed Gray had a gun. Witnesses disputed Mourad and Cordova’s version of events and it later emerged that police attached to the 67th had a long standing habit of planting weapons, but charges were never brought.

-“[A]t least 179 people were killed by on-duty NYPD officers over the past 15 years,” a 2014 Daily News investigation following Garner’s death noted. “Just three of the deaths have led to an indictment in state court.”

-Officer Peter Liang was convicted last year of manslaughter for slaying Akai Gurley in the stairwell of a Brooklyn public housing development. His sentence: five years probation and 800 hours of community service. Liang never spent a night behind bars.

As the Black Lives Matter movement spawned mounting protests calling for police accountability in 2015, Gov. Cuomo signed an executive order granting Schneiderman’s office the authority to investigate civilian deaths at the hands of law enforcement. It was an effort to circumvent the tight-knit relationship between local district attorneys and the police who they work with on a daily basis.

While Isaacs was acquitted, it appears it was not for a lack of effort on behalf of the prosecution. Even longtime critics of the criminal justice system conceded that Schneiderman’s team, led by Alvin Bragg Jr of the Special Investigations and Prosecutions Unit, presented the evidence against the cop in an extremely compelling manner.

“I must admit, they made the case,” said State Assemblymember Charles Barron, who represents East New York and attended portions of Isaacs’ trial. “It was the jury this time. What this jury deliberated on, what they didn’t see in that video is beyond my belief. Juries, they see police in one light and black men, their own black men, in another light. When you have a society that’s criminalizing and saying black men are a menace to society — the ‘angry black man’ — sometimes the oppressed internalize their oppression … We can’t rely on the courts as they are constituted in America to deliver justice to us. It has to come from the streets.”

Addressing Small’s family, their supporters and approximately 200 Black Lives Matter activists in Union Square Park, Barron told them they should not be afraid of the word “revolution,”  since nothing short of revolution will completely eradicate the racism people of color face from the justice system.

Small’s brother, Victor Dempsey, described a recent dream he had: “Me and my brother were running side by side. It felt like brotherly love, whatever it was in that damn dream. I fell. He picked me up. We continued to run again … We’re on a rooftop or something like that. We went to jump. I made it to the next rooftop. As I turned around I see my brother started falling. I reached out and grabbed his hand … I’m looking at him right in his eyes. And I woke up because I couldn’t let him go. That’s what I’m doing now. That’s what my family is doing now. We’ll continue to fight because we’re not letting this go.”

But immediately firing Isaacs as Small’s family are demanding will prove difficult as the officer has already surpassed the two-year probationary period required to achieve tenure on the force. According to an NYPD spokesperson, Isaacs “will remain on a non-enforcement duty status, without a service weapon, while the department conducts its internal investigation … Any further disciplinary action to be taken in connection with this matter will be based on the findings and recommendations made at the conclusion of the departmental inquiry.”

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Photo: Victoria Davis, sister of Delrawn Small, together with community advocates on Nov. 9 in Union Square. Credit: Erik McGregor.