Razzle Dazzle
Justice vs. Change of Venue

By RICHARD STEIER

To those assuming that a change of venue for the three Detectives in the Sean Bell case would be a one-way ticket to acquittal, Gerry Shargel offered this cautionary tale about another criminal defendant who instead rode the switch straight to prison.

Mr. Shargel, widely regarded as one of the best defense lawyers in these parts, with a client list that has included both John Gotti's and the rogue police lawyer Richie Hartman, declined to identify this particular defendant because "he's still alive."

But after a trial upstate sent him to his just reward, Mr. Shargel recalled, "He said, 'I would rather have been tried by 12 New York City cops than the jury in Albany.'''

His point was that juries are difficult to handicap, even when the demographics in one area might seem more sympathetic to a certain kind of defendant.

Warmer Climate for Cops Upstate

Conventional wisdom holds that cops in a case like the Bell shooting stand a better chance of acquittal upstate, where there are fewer controversies involving the police in general, not to mention specific instances where the shooting of a racial minority creates a firestorm.

That belief clearly was at work in the Amadou Diallo case, which shares two obvious parallels with this one: the large number of bullets fired by cops at someone who was not shooting back, and the attempt by their attorneys to move the trial well outside the city without even trying to pick a jury here.

But there are also distinct differences in the two situations. One significant one is that, where the Diallo shooting was triggered by nothing more ominous than the victim's reaching into his pocket for what turned out to be his wallet, the Bell case will pivot on whether the first Detective to shoot, Gescard Isnora, is credible in claiming that he did so after Mr. Bell attempted to use his car as a deadly weapon.

QUEENS LOGIC: Det. Michael Oliver (left) is seeking a change of venue for his criminal trial in the Sean Bell case based on adverse publicity, even though much of the negative coverage was the result of his own poor judgment in having an extravagant dinner the day after he was indicted. Queens District Attorney Richard Brown countered that 'there's no reason to believe that a fair and impartial jury could not be found' in his borough.

Another is that where Bronx juries over the years have been perceived with some justification as overly suspicious of cops, those in Queens have not. There is no exercise in nullification there that comes close to what figured into the acquittal 20 years ago of Larry Davis, a notorious drug-dealer whose lawyer, the late William Kunstler, convinced a Bronx jury that he opened fire on cops who came to arrest him because he believed they were corrupt officers intent on murdering him to cover up their own past drug-trafficking.

The perception of a fairer trial for cops in Albany is "true in The Bronx," Mr. Shargel said. "That may not be true in Queens."

Asked about the polling data compiled by the defense lawyers in the Bell case that cast doubt on whether the officers could receive a fair trial, he said such surveys were "a very effective means of determining the mindset of the prospective jurors."

But just as former State Chief Judge Sol Wachtler once opined that a skillful prosecutor could persuade a grand jury "to indict a ham sandwich," polls can be tweaked in ways that would get that sandwich approved by the state Board of Rabbis.

48% Open to 'Honest Mistake'

What, for instance, does one make of the finding by the firm used by the Detectives' lawyers that only 47.9 percent of the potential jurors they polled "believe that it is possible that the police made an honest mistake when they shot Sean Bell"? Steve Kartagener, one of the attorneys for Detective Michael Oliver, cites that finding as part of his case that a fair trial can't be had in the borough, but Queens District Attorney Richard Brown could use that same data to argue persuasively that nearly a majority of those polled believe that what occurred was a mistake rather than a crime even before all the facts have been presented. (The poll found that 55 percent believed they might hear additional evidence that "might alter their opinion about the case.'')

Mr. Kartagener's brief on behalf of all three defendants contains a lengthy discourse on how statements by elected officials and coverage in the news media have combined with the protests led by the Rev. Al Sharpton to influence public opinion to their detriment.

There is merit to the claim made nine months ago by Detectives' Endowment Association President Mike Palladino that remarks made by Mayor Bloomberg immediately after the shooting that it was "inexplicable" that cops fired 50 shots at the unarmed Mr. Bell and his companions and that it seemed like a case of "excessive force" had special resonance because Mr. Bloomberg is not given to rash pronouncements.

But how many prospective jurors remember those remarks of more than a year ago? And if they were reintroduced at trial, is it a certainty that a jury of residents from a borough that was particularly hard-hit by the Mayor's property-tax hike of five years ago would be swayed more by what he said than one consisting of upstaters who are less likely to be nursing pocketbook grudges against Mr. Bloomberg?

Mr. Kartagener stated in the brief that he was particularly concerned about the impact of Internet material connected to the case in coloring the perceptions of local jurors. Yet it is the growing use of the Internet that makes a change of venue less likely to produce jurors who have not already formed an opinion about the case. A couple of decades ago, it was possible that Albany residents would be blissfully unaware of the details of a case transferred to their jurisdiction; today they are more likely to be exposed to news media outside their city, and any reporting of a trial shift could prompt the more-curious residents to Google their way to much of the prior coverage of the case long before jurors were selected and ordered by the trial judge to avoid all pertinent media reports.

The $4,200 Feeding Frenzy

Mr. Kartagener in his 21-page brief devotes seven pages to what he characterizes as negative media coverage. Half of what he objects to as prejudicial concerns reporting on Detective Oliver's $4,200 dinner at Nello's in the company of two good-looking women and a friend from Spain who was reported to have picked up the check. He laments the "feeding frenzy" it triggered on the part of the Daily News, one of whose columnists lashed Mr. Oliver by suggesting the same extravagant obliviousness behind the night on the town a day after his indictment might explain why he fired 31 shots at Mr. Bell's car.

"Even though the dinner was paid for by someone else," Mr. Kartagener stated in his brief, "Det. Oliver was castigated and vilified in the press for supposedly showing no remorse for the killing of Sean Bell."

There is some validity to his claim that News columnist Michael Daly was reaching a bit. Mr. Palladino argued at the time that Detective Oliver was merely trying to let off some steam with a big night out during a wrenching period in his life.

But aside from Britney Spears, most people facing legal troubles and a relentless public spotlight don't go to places where they might attract more negative attention. A high-watt restaurant like Nello's would have been enough to put Mr. Oliver's evening in the gossip columns; the price tag and the items ordered - pasta with truffles and $575 bottles of wine - elevated him to Page 1 of the tabloids.

Aided by Own Blunder?

It is reasonable to assume that cops in a case like this one would be advised by their attorneys to keep low profiles. Even if Mr. Oliver didn't get such counsel, a veteran Detective who until the shooting had an exemplary service record would figure to have the good judgment not to go lighting up the town the day after he was indicted. It's hard to imagine DA Brown in his responding court papers not carving up the turkey Mr. Kartagener is trying to peddle with his complaint that his client was victimized by the media.

The brief contends that even seemingly benign coverage of Ms. Bell's widow, Nicole Paultre Bell, has had the effect of inflaming potential jurors in Queens by putting a human face on what was lost when he was killed. But this discounts Mr. Palladino's own skillful use of the media - often in the same publications - to raise legitimate doubts about the innocence of Mr. Bell and his companions, Trent Benefield and Joseph Guzman.

We know that all three men had prior criminal records; Mr. Palladino has asked more than once how they were supporting themselves at the time of the shooting. The DEA leader's comments, along with information that emerged from early police accounts of the shooting, could have persuaded more than a few potential jurors here that Mr. Bell, who had been drinking heavily that night, may have panicked when Detective Isnora confronted him, and the prospect of being put through the jail system on his wedding day flashed before his eyes.

Rush to Judgment

And so it's clear that both sides have disseminated negative publicity to advance their causes. How much of an impact the propaganda has had, the poll notwithstanding, can't really be measured without first trying to empanel a jury.

It is not as if defense lawyers in Queens are barred from challenging a juror's selection on grounds of bias, any more than they can be denied the use of peremptory challenges in instances where they have an uneasy feeling even if the reasons for it aren't apparent to the trial judge.

Mr. Shargel noted that when change-of-venue motions are brought, "most often the court will wait and see what happens when you try to pick a jury." The notable exception, he added, a bit of irony in his voice, occurred in the Diallo case.

The suspicions about how that case found its way to Albany extended beyond the minority community. The defense team for the Diallo cops included Burton Roberts, a former Bronx Chief Administrative Judge, who seemed to have been chosen more for his knowledge of the judicial system than his courtroom skills. And the five Appellate Division Justices who wound up hearing and granting the change-of-venue motion just happened to be the five appointed by Governor Pataki - who had the strong political support of the cops' union, the Patrolmen's Benevolent Association - and all came from areas outside that panel's jurisdiction, which was Manhattan and The Bronx.

Tough to Replicate Queens

Mr. Kartagener cited that case in requesting the change of venue as one of two precedents for granting the motion without first trying to empanel a jury. He also requested that the trial be held in "a place having the same demographics as Queens, but located outside of the New York City metropolitan area."

The obvious counter to the latter request is that there may be no place in the world, never mind New York State, which has demographics that approach those of Queens - with its large and diversified Asian and Latino populations as well as sizable black and white contingents.

And the juxtaposition of the Diallo precedent with that request is a reminder of how little demographic similarities figured into the Appellate Division's ruling in that 1999 case, moving the trial from a borough whose residents were overwhelmingly black or Latino to a city where just 12 percent of the population came from those groups.

And so it's hard to buy the implicit argument that one good fix deserves another. The change of venue in the Diallo case may have suited the political agendas of Mr. Pataki and then-Mayor Rudy Giuliani, but it was not in the public interest. If the Diallo cops had been acquitted somewhere in New York City, even if not The Bronx, it would have been hard to argue that the justice system had not functioned properly. The sense that the system had been manipulated, however, only added to the mistrust of the police in the black and Latino communities.

'A Toxic Atmosphere'

Six weeks after the Diallo cops were acquitted in Albany, on March 16, 2000 Patrick Dorismond was fatally shot by police in a confrontation triggered when he objected to an undercover cop's approaching him to ask where he could buy marijuana. The uproar that ensued led Mr. Palladino's predecessor as DEA president, Tom Scotto, to lament, "The atmosphere is toxic for police in this city; it's so thick you could cut it with a knife."

In addition to the Dorismond shooting, he cited what he and other police union leaders called overly aggressive enforcement policies carried out by the NYPD at Mr. Giuliani's directive that were most heavily focused on minority communities. "Equally important to enforcement is maintaining the trust and confidence of the community," Mr. Scotto said.

That task had been made immeasurably harder by the shifting of the Diallo case to Albany.

By comparison, relations today between the police and the black and Latino communities are far better. Mr. Bloomberg, with a less-incendiary and more-inclusive style than his predecessor, and Police Commissioner Ray Kelly, whose edges in experience and competence over then-Police Commissioner Howard Safir have enabled him to continue reducing crime with aggressive but not overbearing enforcement, both deserve significant credit for the change.

Calm Amid Controversy

There remains enough mistrust lurking beneath the surface, however, that an incident like the Bell shooting can bring it to the fore, although with nothing approaching the vehemence that followed the Diallo killing.

There have certainly been some inflammatory statements made by critics of the police response, with Brooklyn City Councilman Charles Barron being most prominent among the offenders. But Mr. Sharpton, who in organizing protests against the killing has merely played the institutional role he has appropriated for himself in the city's fabric, is channeling community discontent rather than saying or doing anything to inflame it and thus compromise the Bell cops' rights to a fair trial.

And given the perception that many cops have of the Reverend Al, there is a definite irony in the positions that he and the Bell lawyers have staked out regarding the change of venue. He is the one taking the play-by-the-rules position that the cops should "be tried by the people they police and are paid by," while the lawyers are seeking special treatment by demanding a shift upstate without even attempting to select a jury.

A Duty at Issue

The three cops took an oath to serve and protect the citizens of New York City, and in doing so accepted all the considerable risks that come with the job. One of those risks is winding up in their current situation. To not trust those citizens to be fair to them - without even using the judicial process rather than a poll to determine if an unbiased jury could be seated - represents a breach of the unspoken contract that came with the job.

Instead of focusing on worst-case scenarios, they might consider the merits of their case. If the story that emerged following the shooting - that Detective Isnora began firing only after Mr. Bell struck him with his car, then backed up into an approaching police van, then drove towards him again - holds up in court, it should go a long way toward winning the cops an acquittal.

But if they are given an E-Z Pass to travel 180 miles north of the city to get that verdict, it will be of dubious value - other than sparing them possible jail time - to either the three Detectives or the people they are serving.