Razzle Dazzle
Truth Unjust to Reverend Al

By RICHARD STEIER

On more than one occasion, facts have been hostile witnesses in the Reverend Al Sharpton's life. His response to the verdict in the Sean Bell case showed this is one of them.

Immediately after Queens Supreme Court Justice Arthur Cooperman April 25 acquitted the three Detectives charged in the fatal shooting of Mr. Bell and the wounding of his companions, Trent Benefield and Joseph Guzman, Mr. Sharpton decried the ruling as an "abortion of justice." He castigated the judge for saying that he considered the prior criminal records of Mr. Benefield and Mr. Guzman and their demeanor on the witness stand in determining them not to be credible witnesses against Dets. Gescard Isnora, Michael Oliver and Marc Cooper.

Even prior to the verdict, Reverend Al was whaling away at the primary lawyers for Mr. Isnora and Mr. Cooper, Anthony Ricco and Paul Martin, as "two black sellout attorneys," and accusing the two defendants of playing the race card by hiring lawyers of color "so that they could say things that others couldn't say to try and castigate, even in death, Sean Bell's memory."

FORGET MY PAST: The Reverend Al Sharpton, who was once closely associated with two men who billed themselves as civil rights lawyers while also representing major crack dealers, clearly hoped people had short memories when he questioned the motivations of the two black defense attorneys in the Sean Bell trial, including Anthony Ricco (right), and their Detective clients in choosing them.

Justice Not What They Wanted

None of his statements and accusations stands up well under careful scrutiny, however. Nor does Mr. Sharpton's insistence that all he and Mr. Bell's family were looking for in this case was justice. By a fair, reasonable evaluation of the evidence and witnesses in the case, justice was what they got. What they wanted was a result - convictions of the three cops - that in this instance could not be supported by what took place during the trial.

It's understandable that the Bell family feels aggrieved by the verdict; no one expects them to be objective about the death of a 23-year-old on the morning of what was supposed to be his wedding day. But Reverend Sharpton, if we are to believe that he has legitimacy as a community leader, has the responsibility to use his intelligence to distinguish this case from others in which it was far more difficult to find justification for police actions that led to the deaths of young black men.

Such distinctions are likely to be made by the U.S. Justice Department, which is examining the case to see whether grounds exist to re-try the Detectives for violating Mr. Bell's civil rights. There is reason to believe that Mr. Ricco was correct when he said, a few hours after Justice Cooperman's verdict was rendered, "I think it's very unlikely that you'll see a Federal prosecution in this case."

No such prosecution was pursued by the Clinton Justice Department eight years ago after four Street Crime Unit cops were acquitted by a state jury in the fatal shooting of Amadou Diallo, an incident where far less justification existed for the cops to use deadly force against a man who turned out to be unarmed.

The last time Federal prosecutors sought and won a civil rights prosecution against a city cop was 10 years ago, in a case in which Police Officer Frank Livoti wound up spending 6-1/2 years behind bars. The original trial in Bronx Supreme Court also wound up in an acquittal, but with far less clear-cut reasoning by the trial judge, Gerald Sheindlin, who seemed to reverse course midway through his decision.

Even more importantly, the victim in that case, Anthony Baez, had not done anything resembling suspicious behavior. He had the bad luck to have a football with which he and his brothers were playing on a Bronx street twice strike the patrol car in which Mr. Livoti was sitting. This enraged the cop sufficiently that he demanded that they move off their own block - even though the cop car had no particular business on that street - and when Mr. Baez objected, he placed him in an NYPD-banned chokehold, causing his death.

A History of Foolish Confrontations

There were several other contrasts between Officer Livoti and the three acquitted Detectives that figure to make a big difference in the eyes of Federal prosecutors. The Bronx officer had a long history of unnecessary confrontations with civilians in which he was accused of using excessive force. His own commanding officer had told him to seek counseling and to transfer to a quieter precinct; Mr. Livoti was able to ignore this advice because of his clout as a Patrolmen's Benevolent Association delegate.

In this case, none of the three Detectives had ever fired their weapons before. Detective Oliver had been accused of excessive force once as a rookie in 1995 - a case the city settled for $10,000 - but during his career he made more than 600 arrests without firing his weapon until the night of the confrontation with Mr. Bell and his companions. These are not cops who could fairly be called triggerhappy or accused of a propensity for violence.

Reverend Al's references to Detectives Isnora and Cooper playing the race card in their choice of lawyers and those lawyers being "sellouts" to the black community are astonishing on several counts.

One is the implication that the lawyers were chosen primarily because their skin color made it easier for them to go after Mr. Bell and his companions. That statement presumes that there is something out of the ordinary about the two cops - Mr. Isnora is half-Haitian, half-Mexican and Mr. Cooper is black - choosing attorneys of similar ethnic or racial backgrounds. It also suggests that the lawyers' skin color was their primary asset to their clients, something that was proven to have no foundation by their performances in cross-examining the prosecution witnesses.

The Mason-Maddox Paradox

Reverend Al's tone of righteousness also seemed dusted with a certain amnesia about his two legal associates of a couple of decades ago, C. Vernon Mason and Alton Maddox. The three men were a high-profile team as advisers to the family of Michael Griffith in the Howard Beach case before their worlds came crashing down with their overzealousness of behalf of Tawana Brawley and the revelation that her claim of being raped by six white men in Wappinger's Falls - including a Sheriff's deputy who later committed suicide and a local prosecutor - was a hoax.

At the same time, however, Mr. Mason and Mr. Maddox were serving as counsel to some of the most-notorious crack dealers in Queens. The rationale for defending such people, beyond the big money they pay, is that they are entitled to legal counsel the same as any other citizen. That justification becomes a lot harder to make, however, when you are presenting yourself as attorneys fighting on behalf of people unfairly oppressed by the system while simultaneously defending some of those responsible for what amounted to a kind of genocide in parts of the black community during the late 1980s.

Ricco Tough to Pigeonhole

Those old associations make it particularly ironic that Mr. Sharpton would be lecturing any attorney about moral responsibility. Mr. Ricco took particular exception. That shouldn't be surprising: he is an old-fashioned defense lawyer who seems to gravitate to those scorned by society, most of whom can't afford costly defenses. For those cops who are just as quick to paint caricatures as the Reverend Sharpton, his career is filled with opportunities for derision, starting with his tenure as a law clerk to former Judge Bruce Wright, whose lenient bail policies led cops to dub him "Turn 'em Loose Bruce." (The Daily News reported May 2 that Mr. Ricco also was among a group of attorneys who pressed for a Federal prosecution in the Diallo case.)

Mr. Ricco's clients have included a black man who helped instigate the incident that led to the fatal stabbing of a yeshiva student during the 1991 Crown Heights riots, a white cop acquitted of shooting a homeless man who tried to clean his windshield, a co-conspirator in the 1993 World Trade Center bombing, and a young man who murdered a Teacher who had been a kind of mentor to him. For the near-decade when New York State had the death penalty, he represented men who were facing capital punishment. He has said that in deciding to represent Detective Isnora, the racial backdrop of the case had no bearing; he saw a cop in trouble who was worth defending.

He did so vigorously, from his opening statement moralizing about the sort of people who patronized Club Kalua and the "twisted" sense of machismo that brought them there to his slashing cross-examination of Mr. Guzman that provided the dramatic high point of the case prior to the verdict.

Benefield's Shortcomings

Mr. Guzman testified April 1, a day after Mr. Benefield told a story that was at wide variance with his early statements to the Queens District Attorney's Office and before the grand jury. Much of the cross-examination of Mr. Benefield focused on prior admissions he made about smoking marijuana every day for six years and frequent consumption of alcohol, and he did not distinguish himself as a witness.

This made Mr. Guzman's credibility particularly crucial to the prosecution case, and during his direct examination by Queens Assistant DA Charles Testagrossa, he came off as a street-sharp man with an ebullient personality; during the break before cross-examination began, several veteran trial reporters remarked on how much better a witness he had been than Mr. Benefield.

Mr. Ricco, James Culleton on behalf of Detective Oliver and Mr. Martin on behalf of Detective Cooper all sought to bring out the less-charming side of that persona. Mr. Culleton succeeded in getting under his skin, then Mr. Ricco got deeper and prodded Mr. Guzman into losing his temper. He was cooked before lunch; when Mr. Martin went after him during the afternoon session, it was almost anti-climactic.

Sharpton Out of Order

Reverend Sharpton's objection after the verdict to Justice Cooperman citing witnesses' prior criminal records - Mr. Guzman's was the worst, with two jail terms - and demeanor on the witness stand made it sound as if the judge had used improper criteria in reaching his verdict. It may be that he's uncomfortable about his own past and his more-bombastic moments being used against him, but his claim had no basis in law. Two of the primary reasons that trial lawyers are reluctant to call less-than-saintly witnesses whose testimony might help them are that taking the stand opens them up to questions about past behavior that might have no relation to the case at issue, and their demeanor on the stand could wind up influencing a jury - or in this case, the judge rendering the verdict.

Among the complaints that have been hurled about the Queens DA's Office is that it didn't properly prepare key witnesses like Mr. Benefield and Mr. Guzman for what they would face during cross-examination. It might have seemed that way based on their performance on the stand, but such claims have no basis in fact.

"Yes, they had been prepped," said Kevin Ryan, the chief spokesman for Queens DA Richard Brown, with the coaching taking place on several different occasions prior to their testimony.

Civil Lawyers Could Have Helped

It isn't even as if the Queens DA was the only party available to gird them for what they might face from defense lawyers. The two men representing Mr. Benefield and Mr. Guzman in the $50-million civil suit they have brought along with Nicole Paultre-Bell, Sanford Rubenstein and Michael Hardy, are both veterans of countless courtroom skirmishes, as is Mr. Sharpton. All of them, given their keen interest in the outcome of the case as well as its potential impact on the civil suit, had good reason to pound into the heads of Mr. Benefield and Mr. Guzman what they would be up against and the importance of retaining their composure on the stand.

I wasn't in the courtroom when Mr. Benefield testified, and so I can only speculate that he came off as poorly as news media accounts said because he lacked the intelligence to be a good witness. Mr. Guzman seemed anything but dim, but he also brought to mind Mike Tyson's line that "everybody's got a plan until they get hit."

Unlike many judges, reporters who covered the entire trial said Justice Cooperman was on the bench every day a few minutes ahead of the scheduled starting time, and he has a reputation for decorum that does not allow much room for levity in the court.

If anybody bothered to school Mr. Guzman on that reputation, he quickly forgot it once the adversarial part of his time on the witness stand began. Mr. Culleton's aggressive questioning spurred comebacks with some sass by Mr. Guzman, and when Mr. Ricco turned the intensity level up a notch, Mr. Guzman went right with him.

Won Gallery, Lost Judge

He often drew chuckles and titters from the side of the courtroom where Mr. Bell's family and supporters were sitting. Clearly Justice Cooperman wasn't amused by the repartee, however, and while Mr. Guzman may have believed he was more than holding his own, he was turning into a raging bull and allowing himself to be set up for the kill.

By the time that he was challenging the logic of one of Mr. Ricco's fusillades by shouting, "Where you from? Where you from?", he had blown to smithereens his account of his behavior outside the Club Kalua. Just before that outburst, Mr. Ricco cited his demeanor on the witness stand in scoffing at Mr. Guzman's earlier testimony that when Fabio Coicou engaged Mr. Bell and other members of the bachelor party in heated argument, he had been the one to defuse the tension by declaring, "Listen player, we're not gonna get into this."

It's possible that Mr. Guzman actually acted the way he claimed at that moment, and that his losing his cool on the stand was merely a product of the trauma of the shooting and his difficult recovery from his wounds, compounded by the stress of his courtroom appearance. But to give him the benefit of that doubt, you'd have to stretch your credulity a lot and be rooting awfully hard for him. Anyone looking at his demeanor more dispassionately and weighing his past troubles with the law would be far more inclined to conclude that a guy who by his own admission had made "bad choices" in his life may have made another one that fateful morning by saying in response to Mr. Coicou's bad-boy posturing, as Detective Isnora and others claimed he did, that he was going to get his own gun.

Reason to Find Justification

If you believe that was what happened, then it follows that the Detective's decision to follow Mr. Guzman and Mr. Bell back to their car was, as the judge concluded, a justifiable response to exigent circumstances. It may have been a violation of police guidelines for undercover cops, who are supposed to leave enforcement action in such situations to their backups, but Detective Isnora clearly believed there might not be time to let protocol take its course.

He was struck by Mr. Bell's car, which then struck the unmarked minivan carrying Detective Oliver and Police Officer Michael Carey, yet Detective Isnora did not begin firing until he claimed to have seen Mr. Guzman make a gesture that could have been a reach for a weapon and Mr. Bell drove the car forward at him again. Firing simply because a car was coming at him also would be a violation of departmental guidelines, but it's not hard to understand if Detective Isnora at that point was more concerned about the possible threat to his life.

There will inevitably be questions about why Detective Oliver reloaded his gun without pausing long enough to assess the situation. Justice Cooperman, in noting that issues of carelessness and incompetence "must be left to other forums," made clear that if Mr. Oliver had showed poor judgment in that regard, it didn't rise to the level of criminality.

Added Firepower's Flip Side

The number of shots fired is a key element in why the criminal case was brought in the first place. The cops who believe the case wouldn't have even gone to a grand jury except for political reasons are not stopping to consider the impact on public confidence if there had not been a thorough - and public - inquiry into the circumstances that led cops to fire 50 shots at men who turned out to be unarmed.

That is the flip side of the decision made during the early 1990s to equip city cops with automatic weapons rather than the traditional six-shot revolvers they had been using. A major impetus for the change was that cops found themselves outgunned by criminals who were carrying 9 mm. weapons, but there was a double-edge to the added firepower: the number of shots they could squeeze off rapidly with the new guns creates perception problems in cases like this one and the Diallo shooting.

In that 1999 incident, there was no crime imminent at the time the four SCU cops approached Mr. Diallo because they believed he fit the description of a rape suspect. In this one, there was the real possibility of a drive-by shooting once Mr. Guzman reached the car, given his earlier threat.

Cops are not trained to read minds, or to make definitive conclusions at 4 a.m. outside a bar with a history of dubious behavior that someone is just woofing and not a serious threat to begin blasting once he reaches the spot where he says he has a gun. The fatal shooting two weeks ago of Correction Officer Kenny Duncan outside his Brooklyn home at about that same time of morning after a brief argument with a man who threatened to steal his motorcycle was a grim reminder of how quickly what seems like macho nonsense can become deadly.

Judge Tough on Torture Cops

The system worked properly in this case. The Queens DA's Office brought indictments knowing it would be a tough case to win, particularly given its key witnesses and the contradictory stories more than a few of them told about what unfolded outside the Club Kalua.

The judge chosen for the case should not have been someone Reverend Sharpton would squawk about, nor did he at the outset. One of the cases Justice Cooperman is best known for is the 1986 trial in which, also acting without a jury, he convicted Sgt. Richard Pike and Police Officer Jeffrey Gilbert of using an illegal stun gun to torture a suspected low-level marijuana dealer inside the 106th Precinct stationhouse. Decrying their actions as akin to "the vicious brutality associated with corrupt regimes in other countries," he sentenced both cops to nearly the maximum, 2 to 6 years in prison.

But shortly after the verdict, Reverend Sharpton was braying about organizing rallies outside Justice Cooperman's home as part of a program of civil disobedience. It appeared last week that he decided not to follow through on that threat when his civil disobedience rallies begin May 7, but if he does, it is sure to be counterproductive.

One of the disturbing elements of how the Diallo trial was handled was that the defense lawyers moved for and got a change of venue to Albany without even trying to empanel a jury, citing a poll to claim that negative pretrial publicity had made it impossible for the cops to get a fair hearing not only in The Bronx but throughout the city and the surrounding suburbs. There was the suspicion then that political forces had intruded upon the Appellate Division panel that granted that change of venue, and the smell has not gotten any better with time.

In the Bell case, defense lawyers sought a change of venue and were rebuffed by a different Appellate Division panel. The fact that the three Detectives were acquitted in a courtroom in the same city that pays them and which they took an oath to protect argues more strongly for them to be able to remain on the job if they are not convicted in departmental trials, in contrast to the Diallo cops, all of whom should have resigned following their acquittals (three have since done so).

Detectives Endowment Association President Mike Palladino said prior to the verdict that he believed his members had gotten a fair trial, but he was convinced that they wouldn't have before a jury because of the demonstrations he believed Mr. Sharpton would have organized outside the courthouse on a daily basis.

An Improper Influence

I'm not sure he's right. I am positive, however, that if the Reverend Al holds a rally outside Justice Cooperman's house, he will have gift-wrapped the case for moving any future shootings of civilians by cops to courts well outside the city. The potential disruption of the private life of any judge and his neighbors could dramatically affect how such cases were handled and decided, with or without a jury.

Mr. Sharpton on more than one occasion has pushed the legal envelope too far, and more than a few people have been willing to forgive him more quickly than he deserved. Someone may have persuaded him this time that this was a boundary he couldn't cross, no matter how hurtful the verdict was to the Bell family. A tragedy touched off by knuckleheaded behavior outside a club is not going to be happily remedied by imposing the bully rules of the street upon the justice system.