Last week ended with the defense resting, then making a motion to dismiss the charges for legal insufficiency — a standard motion made in all criminal cases and one that almost never wins, but that is necessary in order to preserve issues for appeal (and for the attorneys to avoid claims that they were ineffective).
Right before the defense rested, they entered into a stipulation (agreement) with the prosecution that all of the minutes of Grand Jury proceedings, witness interviews with the District Attorney, and witness interviews with police officers, that were used throughout the trial to show a prosecution witness’s prior statement was inconsistent with what he or she said at trial, were accurate. This was legally necessary for the defense to prove those prior inconsistences, but it also gave the defense the chance to give a little round-up of all the prosecution witnesses’ inconsistent statements, as they went through them one by one. The inconsistencies ranged from pretty harmless (Mr. Dossantos, the owner of a bullet-pierced car, said at trial his wife told him about the car’s damage but told the Grand Jury it was an unidentified man who notified him of that), to those going to the heart of the case (Fabio Coicou, aka “SUV guy”, told the DA in an interview shortly after the shooting that someone in Bell’s party said, “we can take you right now” and “we’ll get the gat (gun)”, that Bell told his friend not to reveal his real name, that Coicou was scared the men were going to “charge” him, and that he saw the some of the Bell party men “peeking” around the corner after walking away and feared they “were going to go get whatever to do whatever”, yet claimed at trial that he never heard or thought any of those things). There were 11 such inconsistencies in all, but I think Coicou’s were the most important.
The defense motion to dismiss the charges for legal insufficiency was full of legalese and I’m sure mind-numbingly boring to most people, so I won’t go into it all, except the one part I found interesting. Anthony Ricco, Detective Isnora’s attorney, pointed out that there have been no cases in this country involving on-the-job police shootings of suspects who ended up dying from their gunshot wounds in which the prosecution has proceeded on a theory of acting-in-concert to commit reckless manslaughter. Since it is not known which detective’s bullets killed Sean Bell or injured Joseph Guzman or Trent Benefield, in the prosecution’s original motion papers, they charged Detectives Oliver and Isnora with acting in concert to commit the reckless manslaughter of Bell and reckless assault of Guzman and Benefield by aiding each other in firing (a theory others have noted is problematic). To substantiate that theory, the prosecutor cited a case called People v. Russell.
But, Ricco pointed out, that that case involved gang warfare. In that case, two rival gangs open fired on each other in a crowded area, thereby killing innocent bystanders. It could not be determined exactly whose bullet killed each victim, so all of the shooters were charged together with acting in concert to commit reckless homicide.
But this case is wholly different, Ricco said. Here, there were not two violence-prone gangs so caught up in murdering each other that they grossly disregarded the welfare of innocent bystanders. Rather, this case involves a group of police officers trying to maintain order and peace in the community, trying to prevent violence, not cause it. To allow Oliver and Isnora to be convicted on a theory of acting in concert to commit reckless manslaughter, akin to gang members, would be anathema to public policy, to proper policing functioning.
The District Attorney (this time in the form of eloquent but soft-spoken John Castellano, head of the Appeals Bureau, approaching the podium for the very first time this case), responded to this particular argument, by saying that there were other cases of acting in concert to commit recklessness manslaughter that did not involve all out gang warfare (albeit none involving police officers acting in the line of duty), that the theory wasn’t that unusual here, and that the People reserved the right to argue under a variety of theories, such as that Isnora set in motion a chain of events that ended in Oliver’s shooting, and both men could be found guilty by acting alone.
Ricco countered that it would violate due process for the People to change theories at this late date and asked, regarding that causation theory, where one would draw the line at who set what in motion: was it when the car hit Isnora that the events were set in motion, when Isnora put on his badge that night, Ricco queried. One could argue, the events culminating in the shooting actually began when the team decided to try to make one last arrest at Kalua that night.
The acting in concert issue interested me though. Even theoretically, notwithstanding the specific facts of this case (ie: Isnora’s witnessing the fight between the Bell group and Coicou before the shooting, Isnora’s thinking Guzman was reaching for a gun and Bell was trying to run him over with the car), but just theoretically, are police acting in the line of duty, who end up killing or seriously injuring innocent people, akin to a gang involved in illegal activity doing the same? Would it deter police from properly doing their jobs to hold them so accountable?
Anyway, Justice Cooperman, as expected, denied the motion to dismiss. That means, as a matter of law, he held that the charges were sufficient to proceed to the finder of fact — here, himself — to determine whether as a matter of fact, Oliver, Isnora, and Cooper committed the crimes charged. Monday morning begins summations, and then Cooperman will likely take several days to deliberate, issuing his verdict probably late next week or the following week.
Tonya,
You did a wonderful job reporting this trial. I asked before but didn’t notice a reply… why are you doing this? Is this work related? Were you assigned to observe the trial and decided to blog about it as well? It seems as if only people involved and activists would sit through the trial if it weren’t for work.
What’s the deal here?
When is the verdict to come down? Are you planning to be there?
Thanks SanderO. Justice Cooperman just today announced when he would have his verdict: on April 25th. I do hope to be there if I can, although it’s going to be a madhouse in that courtroom.
I don’t really know exactly why I was so interested this trial. I’m honestly still trying to figure out how to articulate it. It’s just a compelling social issue to me — why we have so many underprivileged black men in prison, and what is the police role in that. In this case, theoretically, the tables were turned, and it was supposed to be people like my former clients putting the police on the defensive, making the police explain why they pursue them so. Of course it didn’t really turn out that way; the same underprivileged black men ended up being on the defensive, the police on the offensive. But I learned a great deal during this case (although I’m very intrigued to know more) even if it’s just that things are far more complicated than they originally seemed. Race was definitely an issue here (it always is when a black man is on trial either literally or figuratively or both), but not in a simplistic way. There was definitely no Mark Furhman here. Gescard Isnora ended up being a really interesting person to me. I feel like he was in a way the same as the people who were killed and injured — he was trying to rise above his status and do something meaningful with his life. This was his way of doing that — going to John Jay College and becoming a police officer. His shy, meek personality seemed ill-suited for that, but maybe that’s all that was available to him. And his path ended up crossing with that of his peers in this most tragic way.
Anyway, that’s saying too much! Generally, I love dance but it’s not my only interest, and I wanted to see if I liked writing about trials and legal / social justice issues.
Anyway, thanks for reading and being interested!
Tonya,
You did a wonderful job reporting this trial. I see the background issues being the niche that poor blacks are pushed into for economic survival – all sorts of “black market” activities many of which are victimless crimes .
Aggressive policing is not helping, but rather acerbating the problem by creating stereotypical expectations on the side of the blacks and poor and the police. This becomes a feedback feed forward spiral of insanity.
These men did nothing to elicit the kind of force used against them. And these incidents will continue to occur and innocent people will be killed, most of them poor and black.
If there was a suspicion of illegal activity at Kahlua the cops should have had undercover people there for weeks on end gathering evidence and really know who the bad guys are and then quietly arrest them – and have uniform officers do the arrests.
It is much too dangerous to be black, and live in this city. That is a very sad fact.
How about some undercover work in wall street where the criminal activity is destroying millions of people’s lives?
The police have shown again and again, they don’t understand people and their role in preventing crime. Police are way top agressive, from demonstrations to traffic stops.
I was recently returning from the ballet alone one night and got pulled over in my brand new audi. I look like a middle aged fella from the burbs. When I asked what was the problem, the aggressive officers (and they were trying to intimidate me, said I wqas signalling ro turn right and I “moved” left. I had moved a bit to go around a taxi discharging passengers – a perfectly logical explanation and not unsafe or unlawful. I said I had broken no traffic laws. They took my docs and I waited for 20 minutes until he returned and told me to be more careful. What a total asshole.
My sense is he simply wanted to act tough and knew he had no case. Of course I would have to waste a day fighting the ticket and perhaps get points and increase in my insurance for 3 years.
Power corrupts. Don’t give assholes power and too many cops are insecure racists, whether they are black white, small or tall. And the top brass in the NYPD are especially assholes. I have seen them testify an lie in court.
Hi. I’ve been following the case as well. I plan on being at the courthouse on the 25th.
Anyway Ive enjoyed your commentary, perhaps you’ll like mine, which is a bit different from yours (more opinionated I think).
😉
The interesting thing about Coicou’s “inconsistencies” is that it seems to contradict Isnora’s GJ testimony where he said he was walking behind the group and had hid his badge so that three of the group could not see that he was a cop. But if Ciocou had noticed one or two of the three, peeping around the corner, then why didn’t Isnora see this. Why didn’t Isnora state that he saw the three at the corner beside a building?
Secondly, if that group was concerned about Coicou then how did they miss Isnora who was trailing behind them and had drawn his weapon after rounding the corner?
Thank you for reading my blog, Sondjata. I will definitely read yours!