Bell Cops Want Trial Moved To Upstate Locale; Say Publicity, Rallies Have Prejudiced Queens Jurors

By RICHARD STEIER

Lawyers for the three cops charged in the fatal shooting of Sean Bell outside a Queens nightclub have asked an appeals court to move next month's trial outside the metropolitan area, claiming negative publicity has "poisoned" the jury pool here.

MAYOR BLOOMBERG: Prejudicial remarks?

A brief filed by one of the attorneys for Det. Michael Oliver, who fired 31 of the 50 shots discharged by cops during the incident on Thanksgiving morning in 2006, cited a poll of 600 prospective jurors commissioned by the defense lawyers that showed the impact that "prejudicial local media coverage, and other highly prejudicial inflammatory information" have had on public opinion.

'Outside Metro Area'

This has made it impossible to guarantee a fair trial if the case remains in Queens, stated the brief by Steven R. Kartagener. With the concurrence of the attorneys for the other cops accused - Dets. Gescard F. Isnora and Marc Cooper - he requested "a change of venue for trial purposes to an urban county outside of the New York City Metropolitan area."

GESCARD ISNORA: Pivotal role in case.

Queens District Attorney Richard A. Brown, whose office brought the indictments against the three Detectives, quickly expressed his opposition to the request.

"There's no reason to believe that a fair and impartial jury could not be found amongst the 2.3 million people here in Queens," he said in a statement. "This is a case that occurred here in Queens and it should, in my opinion, be tried by a jury representative of the diversity of Queens."

At the time of the shooting, the NYPD had Kalua Cabaret under surveillance for possible illegal activities, and Detective Isnora was inside when he witnessed a potential confrontation involving Mr. Bell and two friends celebrating his bachelor party and another group.

Claimed Gun Threat Made

According to the Detective, one of Mr. Bell's friends, Joseph Guzman, stated that he was going to retrieve his gun. Detective Isnora alerted his backup team about possible trouble, then followed Mr. Bell, Mr. Guzman and the third person in their party, Trent Benefield. He said that he identified himself and displayed his shield but that Mr. Bell rammed the car into him, then put it in reverse and hit a responding van carrying the back-up officers. When the car lurched forward, Detective Isnora told the grand jury that produced the indictments, he began firing, as did four other officers.

REV. AL SHARPTON: Decries 'Diallo' tactic.

When the shooting stopped, Mr. Bell was dead and Mr. Guzman and Mr. Benefield were wounded. No gun was found in the car or its vicinity.

Detectives Oliver and Isnora, who between them accounted for 42 of the 50 shots fired, have both been charged with first- and second-degree manslaughter, and face up to 25 years in prison if convicted. Detective Cooper, who fired four times, was charged with two counts of reckless endangerment, and faces a maximum of a year in prison. No charges were brought against the two cops who discharged the remaining four shots.

60% Call it 'Unjustified'

Mr. Kartagener's legal brief states that the poll conducted by Luntz Maslansky Strategic Research on behalf of the defense found that of the 600 potential Queens jurors surveyed, 60.5 percent "already believe that the shooting was 'unjustified.''' Only 47.9 percent of them believe that "it is possible that the police made an honest mistake when they shot Sean Bell" and 62.9 percent believe "that there was no justification possible for the police to fire 50 shots at Sean Bell and his car."

MICHAEL J. PALLADINO: Sharpton tainted pool.

He asserted that such opinions were shaped by the manner in which the media has covered the case, a series of protests led by the Rev. Al Sharpton, and remarks made by Mayor Bloomberg and Police Commissioner Raymond W. Kelly in the wake of the shooting.

Calling the Mayor "one of the most respected and trusted public leaders in New York City," Mr. Kartagener said he made "highly prejudicial" remarks when he stated following the shooting that, "It sounds to me like excessive force was used" and that he found it "unacceptable or inexplicable how you can have 50-odd shots fired."

Questions Kelly's Claim

The brief also cited Mr. Kelly's statement that officers "are trained to shoot no more than three bullets before pausing to reassess the situation." Mr. Kartagener said this remark, which could be particularly harmful to Detective Oliver since he actually reloaded after emptying his gun and then emptied it a second time, was not supported by any NYPD firearms training policy. (Inspector Michael Hurley, the commanding officer of the department's Firearms and Tactics Section, told the New York Times that when officers undergo twice-yearly firearms qualification drills, they fire in two- and three-round sequences.)

MARC COOPER: Seeking change of venue.

Mr. Kartagener also noted that then-Governor George Pataki had also characterized as "excessive force" the firing of 50 bullets "at an unarmed individual."

During an appearance with Mr. Sharpton on NY1, the brief noted, the Rev. Jesse Jackson stated, "This was a gangland-style execution where the police became judge, jury and executioner."

In addition to those remarks and the rallies outside the local police precinct and the Queens courthouse where the grand jury considered the case and ultimately voted to indict the three cops, Mr. Kartagener said the manner in which the media portrayed people on both sides had undermined the cops' hopes for a fair trial anywhere in New York City.

Roasted for Dinner

He focused much of that part of the brief on newspaper and TV reports about a dinner Detective Oliver attended at Nello the night after he was indicted for which the bill came to $4,200. "Even though the dinner was paid for by someone else, Det. Oliver was castigated and vilified in the press for supposedly showing no remorse for the killing of Sean Bell," Mr. Kartagener stated.

He noted that Daily News columnist Michael Daly cited the evening at the upscale restaurant as symptomatic of "some psychic disconnect between action and consequences, some astonishing indifference" that might have figured into the number of bullets Detective Oliver had fired in comparison to the other cops at the scene when Mr. Bell was killed. Another News columnist, Denis Hamill, interviewed a Queens resident who sounded the same theme, saying of Mr. Oliver, "He knows he's being charged and he eats a $4,000 meal?"

Immediately following the shooting, NYPD sources described Detective Oliver as an active cop with a sterling arrest record who had previously never fired his gun. But just over a week after the indictment, the News published a story quoting a former cabbie as saying that when he was a rookie officer, Detective Oliver assaulted him and made remarks indicating a prejudice against black people. The defense brief expressed skepticism about the cabbie's credibility, and said subsequent remarks made by the Reverend Sharpton were intended to "polarize the community and prejudice the potential jury pool in this case."

Mr. Kartagener also argued that sympathetic newspaper coverage of Nicole Paultre Bell, whom Mr. Bell was due to marry on the same day that he was slain, "cannot help but inflame the emotions of the potential Queens County jurors who will have to decide the case."

The Internet Factor

He added that Internet material about the case, from newspaper articles to videos of interviews with Mr. Bell's family and the public protests, "would undoubtedly interfere with a prospective [Queens] juror's ability to consider and then decide this case with a truly open mind."

Asked about the reliability of the polling data, one of the city's top criminal defense attorneys, Gerald L. Shargel, said, "Polling is a very effective means of determining the mindset of the prospective jurors, but most often the court will say, 'Wait and see what happens when you try to pick a jury.'''

He noted, however, as did Mr. Kartagener in his brief, that one conspicuous exception on that front occurred in the trial of the four NYPD officers charged in the fatal shooting of Amadou Diallo in The Bronx nine years ago.

Defense lawyers in that case commissioned a poll of only 300 potential jurors in that county and used the findings to argue that their clients could not get a fair trial anywhere in the city or surrounding suburbs because of unfavorable publicity that included mass demonstrations outside both the Bronx County Courthouse and Police Headquarters and voluminous media coverage.

Switch Worked Out

The Appellate Division panel that heard their arguments ruled that even without attempting to pick a jury it would be impossible for the four officers to get a fair trial here, and granted the defense request to try the case in Albany. All four officers were subsequently acquitted.

The Reverend Sharpton last week reiterated his previous threat to advise Mr. Guzman and Mr. Benefield not to cooperate in the trial if a change of venue was granted. He called the defense motion "a cheap attempt to play the 'Diallo Card,' and to say that the new way for police to duck accountability is to not be tried by the people they police and are paid by is outrageous."

Detectives Endowment Association President Michael J. Palladino, who since the shooting has attempted to counter negative stories about his three members by noting the past brushes with the law of Mr. Bell and his two friends while questioning how they were supporting themselves at the time of the incident, said last week that "the antics of Al Sharpton and others have created a situation where the right to a fair trial is in jeopardy."