DA Makes Case Against Shift Of Bell Cops' Trial; Says DEA 'Balanced' Pre-Trial Publicity With Campaign

By RICHARD STEIER

The Queens District Attorney's Office Jan. 17 formally opposed a change-of-venue motion by lawyers for the three Detectives charged in the killing of Sean Bell, insisting that pre-trial publicity had not made it impossible to pick an unbiased jury in the borough.

RICHARD A. BROWN: Jury pool untainted.

DA Richard A. Brown and Assistant DA John M. Castellano contended in a 72-page brief that much of the publicity had been generated by the lawyers themselves and the Detectives Endowment Association, and more than offset the statements and coverage that the attorneys claimed had "poisoned" the jury pool.

See Open Minds

They stated that a public-opinion poll commissioned by the defense lawyers had failed to establish that most potential Queens jurors would be unable to judge the case fairly, noting that 75 percent of those surveyed had indicated their viewpoints might be changed by evidence produced at the trial, which is due to begin Feb. 4.

Mr. Castellano also pointed to the findings of the Siena College Research Institute in a poll commissioned by the DA's Office: just 35.5 percent of potential jurors surveyed reported having formed an opinion about the case. And among that group, only 43.4 percent "believe that the police officers used excessive force and are guilty of a serious crime."

MICHAEL J. PALLADINO: A vigorous advocate.

He asserted that to make the claim that media coverage had been skewed against the three Detectives - Gescard F. Isnora, Michael Oliver and Marc Cooper - ''defendants have culled out a relatively small number of unfavorable articles and ignored the vast majority of the media coverage, which has been fair and balanced ... Defendants have also ignored a substantial segment of the coverage that has been wholly favorable to the defense, including public comments, opinions and editorials adopting the defense viewpoint and many news reports of facts unfavorable to the prosecution case."

Cites Palladino's Role

Where DA Brown has said very little publicly about the case, Mr. Castellano noted, DEA President Michael J. Palladino had spoken extensively about it, with his remarks often balancing negative comments made about the Detectives by supporters of Mr. Bell and the two other men who were wounded by police bullets on Thanksgiving morning 2006. The DEA also sponsored an extensive ad campaign defending the three members while attacking the behavior and character of Mr. Bell and the two men who had celebrated his bachelor party with him prior to the confrontation, Joseph Guzman and Trent Benefield.

Those tactics, the DA's brief stated, "demonstrate defendants' conscious decision to use the media to their best advantage. In light of this decision, they are hardly in a position to complain about the extent of the pretrial publicity that has been attendant to this case."

Discounts Mayor's Sway

DA Castellano countered the defense claim in its motion for a change of venue "outside the metropolitan area" that Mayor Bloomberg had helped taint the jury pool by asserting that the firing of 50 bullets at men who were unarmed was "inexplicable" and appeared to constitute "excessive force." He noted that Mr. Bloomberg qualified those remarks, which were made two days after the shooting, by saying that the full facts of the case still had to be determined, and that a day later the Mayor reminded reporters that he had spoken as a civilian rather than a law-enforcement professional.

And, Mr. Castellano continued, "The Mayor was also roundly criticized for his remarks in many of the same papers that defendants now allege provided coverage prejudicial to the defense."

Further, the DA's brief noted that the defense's own poll of potential jurors showed that a majority would only "somewhat believe" Mr. Bloomberg's statement's about the case, and only 13 percent were "willing to accept them at face value, without further thought and consideration such as the Grand Jury exercised in this case."

Palladino Disagrees

Mr. Palladino, in a Jan. 18 phone interview, insisted, "There's no doubt that the jury pool has been poisoned by Sharpton and his antics, the City Council holding hearings on it all over the city, and the Mayor's comments. But I think the Appellate court is more than competent to reach a decision on the evidence presented."

Defense lawyers likened the atmosphere surrounding this case to the one that followed the fatal shooting of Amadou Diallo by four cops nine years ago, a case in which a change of venue was granted by a different Appellate Division panel. Mr. Castellano stated in his brief that this case fell far short of the tumult in the wake of that shooting, "where mass protests resulted in over 1,200 arrests, including three members of Congress and the former Mayor of the City of New York ... Indeed, most protests in this case have attracted hundreds rather than thousands of protesters and most have been characterized by quiet reflection rather than violence or even civil disobedience."

In the Diallo case, the DA's brief noted, "few facts were available to support the defense point of view and, thus ... the press focused almost exclusively on the 41 shots and the death of an unarmed victim." In contrast, it continued, following the Bell shooting Police Commissioner Raymond W. Kelly "made statements on the same day as the incident disseminating information concerning the events that was favorable to the defense."

This included an allegation that Mr. Guzman had said, "Yo, get my gun," following an argument with another patron at the Kalua Cabaret just prior to the confrontation, leading Detective Isnora to believe when he approached Mr. Bell's car that one or more of the three men might be armed, and statements that Mr. Bell had driven his car into Detective Isnora, then backed it into a police minivan "before gunfire erupted."

As to the contention by the defendants' lawyers that another area of the state would afford them a fair trial, the DA's brief noted that the case had garnered national and even international newspaper and television coverage. "Under the circumstances," it stated, "it would be surprising to find a venue in or out of the state where pretrial publicity was not an issue," and moving it would mean choosing from a smaller and less-diverse pool than would be found in Queens.