Shake the Trees

After the Latest Police Killing of Another Unarmed Black Man, The Feds Need Little Convincing to Intervene in New York

That team, which included the author of this article, Brian Figeroux, and Casilda Roper-Simpson, contacted Ken Thompson, assistant U.S. attorney in Brooklyn, within hours after Justin Volpe and other cops took Louima to Coney Island Hospital, handcuffed him to a bed, and told doctors that their suspect, who was bleeding from his rectum, was a homosexual who had engaged in consensual rough sex. Louima—another Haitian immigrant—lived to tell a tale of unbridled torture that rivaled abuse in a medieval dungeon. Volpe, who confessed to jamming a broken stick up Abner Louima's buttocks in the bathroom of the 70th Precinct station house after arresting him outside of a Haitian nightclub in East Flatbush, is serving 30 years in a federal prison.

Had Louima died, some argue, Giuliani and his supporters would have defended Volpe and officers Charles Schwarz, Thomas Weise, and Thomas Bruder (recently convicted of conspiracy), just as he defended Boss, Carroll, Murphy, and McMellon. Louima's original legal team pleaded with former federal prosecutor Zachary Carter to wrest the case from Brooklyn District Attorney Charles J. Hynes. They launched a media campaign, calling on New Yorkers to flood Carter's office with demands that he intervene. In addition, the lawyers placed strategic calls to influential elected officials, such as then congressman Chuck Schumer, Senator Alfonse D'Amato, and Congressman Jerry Nadler. These politicians, including D.A. Hynes and other Jewish community activists, provided the impetus that forced Attorney General Janet Reno to launch an investigation into the racially motivated murder of Yankel Rosenbaum, the young Hasidic scholar who was stabbed during the 1991 Crown Heights riots.

In September 1993, on the eve of Reno's announcement that she would not file civil rights charges in the Rosenbaum case for lack of evidence, Schumer and other members of the New York congressional delegation went over her head to White House counsel Bernard Nussbaum and other high administration officials close to the Jewish community. In a legal brief, Schumer asserted that the FBI and a grand jury can "shake evidence out of the trees." Reno canceled her news conference, and deputy attorney general Webster Hubbell relieved her as the point person in the Justice Department's investigation.

Schumer led the charge in Congress, D'Amato agitated in the Senate, and from his Brooklyn office Hynes hawked a 17-page brief arguing for federal involvement. Senator Robert Dole chimed in, arguing that federal civil rights statutes had been successfully invoked to try the white police officers in the Rodney King case. According to black political analysts, all the efforts were calculated to bring about a federal indictment of Lemrick Nelson, the black teenager who had been acquitted in state supreme court of killing Rosenbaum. After bowing to pressure from this powerful lobby, the feds used an obscure 1960 statute to charge Nelson. Under that law, it is illegal to injure or intimidate a person while that person is enjoying a federally protected activity because of race, color, religion, or national origin.

Many lawyers familiar with the Rosenbaum case counter-argued that prosecuting Nelson under the controversial statute was specious because Rosenbaum was not engaging in any federally protected activity that Nelson had conspired to deny. Apart from that contention, there were no allegations of prosecutorial incompetence. Fortunately for those who mourned for Rosenbaum, federal prosecutors presented new evidence, and Nelson is now behind bars.

Despite a lack of similar support from the Crown Heights advocacy group, Abner Louima's lawyers were able to convince Janet Reno to prosecute his attackers. To date, there have been five convictions, with two more, hopefully, to come. The decision to go straight to the federal government was further vindicated when police officer Antonio Valasquez was acquitted—in spite of overwhelming evidence— after an inexperienced state supreme court judge, Francois A. Rivera, deliberated for only 15 minutes. After allegedly beating yet another Haitian immigrant, Duken Kernisant, at the Department of Motor Vehicles in Coney Island, fracturing his eye socket, Valasquez claimed that Kernisant had assaulted him—a charge that was later dropped. The U.S. attorney in Brooklyn is reviewing the case.

The Department of Justice has certain guidelines it must follow in weighing the viability of a state criminal case being considered for civil rights review. Two of the main issues that apply to the Diallo killing are prosecutorial incompetence and the feds' ability to introduce new evidence. Civil rights advocates argue that it is time for federal prosecutors to recognize the inability of local D.A.s to effectively prosecute sophisticated, well-funded cases of police misconduct. Thus, acquittal of police officers in state prosecutions should not automatically close the books. But too often that is not the case.

In 1995, D.A. Johnson indicted 16 officers from the 48th Precinct. Most of the cases were dismissed and Johnson chose to prosecute the remaining officers on misdemeanor charges. One cop, John Lowe, was tried unsuccessfully three times on a misdemeanor charge. If Johnson recommended that the officers be charged with federal civil rights violations, no one heard about it. One year later, a state supreme court judge acquitted officer Francis Livoti in the 1994 choking death of 29-year-old Anthony Baez. The feds stepped in. During closing arguments in the 1997 civil rights trial, assistant U.S. Attorney Andrew Dember criticized the D.A.'s office for gross incompetence.

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