Shake the Trees

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

Scores of mournful-eyed people streamed in and out of Marie Dorismond’s three-bedroom apartment in a four-story walk-up in the Flatbush section of Brooklyn last Friday. All hugged the inconsolable Haitian immigrant, trying to assure her that the police killing of her unarmed son, Patrick, finally would convince cautious federal prosecutors to seize control of the New York Police Department and file civil rights charges against the officer involved.

"I want to send a message to all mothers in the whole world!" the grieving pediatric nurse said in a hoarse voice while grasping the arms of Al Sharpton and Herbert Daughtry, the two civil rights leaders she had summoned to her side. "Every one of you that used to have a kid sick, coming to Kings County Hospital! Every nurses! Every doctors! Every lawyers! Stand up! This is Mrs. Dorismond from Pediatric D-72. They got my son now!"

They got her son because he said no to drugs. Patrick Dorismond, a 26-year-old security guard who wanted to be a cop, was shot early last Thursday by detective Anthony Vasquez as the officer and two others were carrying out a "buy-and-bust" drug sting near Penn Station and Madison Square Garden. One of the officers approached Dorismond and another man in front of the Wakamba Cocktail Lounge and, in police commissioner Howard Safir's words, "engaged them in a conversation relative to drugs."

Mayor Rudolph Giuliani added that Vasquez, 29, then came to the aid of the officer and his gun discharged. (On Sunday, Giuliani said on the Fox News Channel that Vasquez had been wired, that words between him and Dorismond had been recorded, and that he thought a transcript of the exchange would be available—but his aides quickly backed away from the claim.) Dorismond, who was wounded in the chest, died at St. Clare's Hospital. No drugs or other contraband were found on his body. Police brushed aside witnesses' reports that Vasquez was pistol-whipping Dorismond when the gun went off.

As the killings of unarmed African American men become routine, it is easy for Giuliani to romanticize his ruthless rationales. The mayor said he personally ordered Dorismond's rap sheet unsealed to show that something in Dorismond's background instigated the struggle that led to his death. (As a teenager, Dorismond was arrested for robbery and assault. In 1993 he was arrested for attempted robbery and assault, and in 1996 for criminal possession of a weapon. The '93 and '96 charges were all misdemeanors. In both cases, Dorismond was allowed to plead guilty to disorderly conduct and perform community service. The juvenile case was dropped—and sealed by law.) "I'm sorry," Giuliani told reporters, "police officers are entitled to the benefit of the doubt."

The Dorismond killing came just two weeks after another undercover officer fatally shot Malcolm Ferguson, who also was unarmed, in the Bronx three blocks from where unarmed West African immigrant Amadou Diallo was massacred last year by four white undercover cops. The officers in the Diallo case were acquitted last month, sparking outrage among blacks, Latinos, and some whites.

Although a Manhattan grand jury is investigating the circumstances surrounding the Dorismond shooting, Sharpton expressed no confidence in District Attorney Robert Morgenthau. Relations between the preacher and the prosecutor worsened last May after a grand jury ruled that Officer Craig Yokemick, who is white, used justifiable force on October 29, 1998, when he hurled his police radio at Kenneth Banks, fatally injuring him in a chase after an alleged drug deal. Banks fell into a coma and died 10 days later. Morgenthau's office claimed witnesses' accounts differed as to whether the radio struck Banks's head or shoulder, and whether Banks fell as a result of the radio hitting him or because Yokemick jumped on him.

Sharpton told the Dorismond family he had bypassed the Manhattan D.A. and asked Brooklyn U.S. Attorney Loretta Lynch for a meeting (because Dorismond had lived in the borough). Manhattan U.S. Attorney Mary Jo White announced she would monitor the case.

In recent years, the Justice Department has been successful in prosecuting several high-profile police-brutality cases by intervening after local D.A.s refused to present them to grand juries, or failed to secure indictments, or win convictions. Since the Diallo verdict, advocates like Sharpton and Daughtry have been clamoring for officers Sean Carroll, Kenneth Boss, Edward McMellon, and Richard Murphy to be tried for violating Diallo's civil rights. Sharpton even suggested that Bronx District Attorney Robert Johnson, who is black, threw the case after a racially mixed jury indicated that it had been incompetently presented. A former investigator who worked for the prosecution team agreed. "It was the most incompetent prosecution that I have ever seen," he said.

Some legal watchdogs pointed fingers at Johnnie Cochran, the former lead attorney for the Diallo family's battery of lawyers, who relied on the indictment secured by Johnson and did not call on the Justice Department to take over the case. "The Diallo lawyers were so involved in the protest hype that they forgot their role as lawyers," said a critic of Cochran, who spoke on condition of anonymity. "The Diallo legal team," he added, "should have learned the lesson of the original Abner Louima legal team."

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.

Fast forward to 2000. Johnson's prosecutors come under fire again—this time for botching the Diallo trial. Eric Warner, Johnson's lead prosecutor, had not tried a major case since the Happyland Social Club inferno trial nine years earlier. In some legal circles, Warner's opening argument was considered weak. Others felt he neglected to develop a clear theory of the case, and then made a grave omission when he failed to proffer expert witnesses on police training and procedures. When the defense provided an expert on police practices, Warner and his team seemed surprised.

The prosecution did not refute any information or cross-examine Dr. James Fyfe, a former NYPD cop who is a professor at Temple University in Philadelphia. Fyfe was the only authority on police practices and procedures in the entire case: The jury had no choice but to accept Fyfe's testimony as an accurate representation of acceptable police procedures. Schrrie Elliott, perhaps the only eyewitness to the shooting, wound up in the clutches of the defense team—a crucial mistake. Even if prosecutors were uncomfortable with Elliott, they should have called her, explaining any problems in her testimony while keeping the offensive.

The prosecution's incompetence stretches further with the mishandling of the key defense witnesses. Officer Sean Carroll testified that Amadou Diallo fit the description of an armed rapist they had been searching for on that tragic night. When Carroll further stated that he could not see Diallo's face clearly as he made that determination, that was the very moment that the officer admitted to violating Diallo's constitutionally guaranteed right of equal protection under the law. Carroll and his Street Crime Unit buddies allegedly had profiled Diallo as a criminal, and were confronting the unarmed man on a fallacious, inarticulable suspicion. These four white cops, who seem to have had a rabid predisposition to criminalize a black man, inappropriately approached Diallo for reasons that cannot be soundly articulated, and killed him when there was no evidence that he had any connection to a crime. That approach, some argue, demonstrates intent to deny Diallo his federally protected rights.

A police officer can hold whatever prejudicial views he or she chooses, but is not legally free to interfere with the freedom of a citizen based on fear, instinct, or stereotypical views about black people. To act upon fear and perceived criminality—even in "high-crime" areas— without some type of articulable, reasonable suspicion that an individual is connected to the commission of a crime is a violation of the 14th Amendment's Equal Protection clause. Racial profiling and stopping and questioning are closely related.

Cops arguably are special citizens who have rights that are not available to John and Jane Doe. In their investigation of the circumstances surrounding the Diallo shooting, federal prosecutors should closely examine the notorious "48-hour rule"—a police union policy that forbids the questioning of officers in the immediate aftermath of a serious incident.

This prophylactic insulates cops from criminal liability by inhibiting the timely investigation of incidents in which they are suspects. They are allowed a "cooling-off" period, and during this time they are not required to make any statements or speak to investigators. Crimes often are solved in the embryonic stage of an investigation, when suspects are questioned, and written, oral, and videotaped statements are taken. When detectives investigate a non-police shooting, they question perpetrators immediately and make their statements part of the permanent trial record. Instead of enjoying the right not to immediately report their involvement in alleged criminal misconduct or controversy, police officers should be obligated to give their version of events—without undue delay.

In the Bronx, D.A. Robert Johnson, searching for a way out of the political maelstrom after the Diallo verdict, argued that Diallo's killers frustrated prosecutors when they invoked the 48-hour rule. Johnson may bristle at the criticism he's getting, but he certainly deserves it. That the cops refused to talk to his investigators is not an excuse. His prosecutors never shook the trees to bring down evidence, much less racist cops. They clearly failed to properly investigate, anticipate defense strategies, and litigate the Amadou Diallo murder case. There is, however, redemption for beleaguered prosecutors like Johnson. He ought to take a page out of Charles Hynes's book and prepare a brief for Janet Reno as she considers whether to file civil rights charges against officers Carroll, Boss, McMellon, and Murphy. But Johnson, it appears, is too busy dawdling with the politics of damage control.

Carl W. Thomas is the former lead attorney for the Abner Louima legal team. Additional reporting by Peter Noel.

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