Getting Away with Justifiable Murder
Murder is easy. But getting away with "justifiable homicide" seems easier if you are two white cops and your victim is a Jamaican immigrant, poor, schizophrenic, and, as one angry civil rights attorney put it, "deemed expendable by powerful judicial overseers."
Seven years after the officers fatally shot Earl Black nine times, claiming that the emotionally disturbed man had lunged at them with a knife in his parents' apartment in the Flatlands section of Brooklyn, a four-judge panel of the state's highest court has refused to reconsider an earlier decision that reversed a 1997 bombshell finding by a Brooklyn Supreme Court jury. The jury concluded that prosecutors and police had participated in a conspiracy to cover up the facts surrounding the shooting.
The appellate panel also threw out a $6 million award to Black's family and even ordered his 75-year-old indigent mother, Ivy, to cough up $100 in court costs.
Police and prosecutors claimed that on May 27, 1992, officers John Petrullo and Max Goldman went to Ivy Black's apartment at 4200 Avenue K in Flatlands after someone called 911. According to authorities, Earl Black, a team of nurses, and a psychiatrist, Dr. Saul Gorman, were in the apartment, and the 42-year-old Black refused their suggestions to take his medication or go to the hospital. Black then slashed the psychiatrist with a knife, and attempted to stab the officers as they backed away. Police said both officers emptied their revolvers, hitting Black several times and his mother once in the upper chest.
A grand jury concluded that the officers were justified in killing Black.
But Black family attorneys Michael P. Barnes, Robert Spevack, and William A. Thomas, balked at prosecutors' and police eagerness to vindicate a shooting, which Barnes, in a letter to the U.S. Commission on Civil Rights, would later charge was "reckless and unjustified."
The cops' version, the Blacks' lawyers emphasized in a separate court document, "bore far greater resemblance to a grade B horror film than anything that could have occurred in real life." The lawyers parodied the officers' claim that they fired point-blank at Black as he stormed toward them. "Despite this massive firepower and injuries [to Black, the cops] claimed that Earl was neither stopped nor slowed, indeed, that the bullets 'had no effect' as Earl continued to stalk the terrified policemen from one end of the apartment to the other, arm upraised, holding his 'foot-long carving knife,' until he finally collapsed to the ground, still holding the knife."
The lawyers' first task Barnes explained in his letter to the civil rights commission was to attempt to prove "deliberate misfeasance by district attorneys [who] protect police in civilian death situations." Barnes and his associates began to wag their fingers at prosecutors in the office of Brooklyn District Attorney Charles J. Hynes.
"The cover-up involved the suppression of the identity of eyewitnesses, generation of false investigative accounts, and the deliberate failure of the district attorney to elicit critical testimony damaging to the police from an eyewitness called before the grand jury," Barnes complained.
The family sued the city for the wrongful death of Earl Black. According to the lawyers, for three years Hynes's office refused to hand over key documents and provide information as to the whereabouts of witnesses. Finally, after the Black family lawyers asked a judge to hold his office in contempt, Hynes gave up.
Armed with what they claimed was "hard evidence of a district attorney deliberately subverting an investigation of the police," the lawyers asked a jury in state supreme court in Brooklyn to find that the cops' actions were criminal and that their superiors conspired with prosecutors to deny the family their day in court.
On June 7, 1997, the jury ruled that officers Petrullo and Goldman had not been justified in shooting Black and that authorities had withheld the identity and statement of an eyewitness, a former medical student, Joseph Accetta, who denied that Earl Black had wielded a knife. The city appealed, claiming there had not been a conspiracy and pleading that the verdict be set aside. On March 22 of this year, the appellate court, stating that there had been only three witnesses in the room with Earl Black the two cops and Gorman ruled for the city, and overturned the jury's verdict.
"At most, the evidence showed that the [officers'] recollections of the events differed from those of the [Black family] and their witnesses, and that there may have been some delay in turning over to the [Black family] attorney some of the items sought," the panel wrote. "However, even those items were turned over at least a year prior to the trial of this action. This evidence is insufficient, as a matter of law, to show the existence of any conspiracy on the part of, among others, the defendants, to attempt to deprive the plaintiffs of their right of access to the courts. . . . "
The panel ruled that presiding judge Gilbert Ramirez had erred in not setting aside the jury verdict and granting the cops a new trial.
"Here, the testimony of [Officers] John Petrullo and Max Goldman, as well as that of Dr. Saul Gorman, the only three persons who were present where the altercation began in the bedroom, was to the effect that [Black] grabbed a knife from the top of a dresser in his room, started swinging it, and, while struggling with Dr. Gorman, slashed Dr. Gorman's face," the panel argued. "There was also testimony that during the altercation, [Black] refused commands to drop the knife and continued on towards the . . . police officers with the knife in his hand . . . Under such circumstances, a jury finding that the use of deadly force was not justified based on the testimony of the [Black family] as well as that of Dr. Joseph Accetta, is against the weight of the evidence."
The court, perhaps recognizing the turmoil that could erupt over its controversial ruling, also ordered a new trial, giving life to the Black family's allegations that prosecutors and police had obstructed justice.
Almost all involved in the heart-wrenching case agree that Earl Black's death will continue to haunt a criminal justice system that affirms over and over again that police shootings of minorities can be justified even if it turns out cops' lives weren't threatened. Although the shooting of Earl Black occurred under the administration of David Dinkins then a staunch critic of the NYPD's inclination to the use of deadly force the appellate panel's ruling bodes well for Rudy Giuliani, who, since taking over City Hall in 1994, has been a vociferous advocate of the argument that a perceived threat against an officer's life can be a basis for justifiable homicide.
Earl Black wasn't perceived as a threat to anyone until officers John Petrullo and Max Goldman arrived at his mother's apartment to assist the medical team in escorting him to a hospital.
Black had emigrated to the United States from Jamaica in the early '70s after graduating from technical school with a specialty in welding. He then worked for several years as a welder. Around 1975, when he was in his early twenties, Black was diagnosed with schizophrenia and became unable to take care of himself. In 1980, Ivy Black came to New York from Jamaica to help care for her son. Several years later, she was joined by Black's father, Alvan. Earl shared the apartment with his parents and younger sister, Joy.
After graduating from college, Joy developed a brain tumor that eventually left her a paraplegic. Joy died five years ago, but she was in the apartment when the cops shot her brother. During a deposition, she recalled being "very, very close" to Earl, who "took care of me all the time when I had no one else beside me."
Earl had friends, and, according to Joy, when he took his medicine he "acted normally and he could cook food and do everything normal people do."
In 1989, Earl was prescribed the antipsychotic drug Prolixin. Three years later, Ivy Black noticed Earl was avoiding taking his medicine, which had disagreeable side effects. Ivy grew concerned as Earl became less coherent, prone to insomnia, and increasingly difficult to communicate with. She sought assistance in having him evaluated and placed back on medication. Eventually, she was directed to the outpatient psychiatric service at Coney Island Hospital.
On the morning before Earl died, a psychiatric outpatient team, consisting of two nurses, the medical student, Joseph Acetta, and Dr. Saul Gorman, went to the Blacks' apartment and conducted an interview with Earl. They characterized Earl as "docile" and Gorman, in his written notes, pointed out that Earl showed "no homicidal or suicidal ideation." But Gorman decided that Earl (who sometimes thought he was God) should be hospitalized. Since they lacked the authority to take Earl into custody, the NYPD was summoned.
Petrullo and Goldman intercepted the dispatcher's call and went to the apartment. The next day, the story filtering out of One Police Plaza was that Earl had attacked the officers with a knife and was shot at point-blank range.
However, police did not disclose that the medical student, Accetta who is now a practicing physician had contradicted the cop's story that evening in a tape-recorded interview with assistant district attorney Richard Glaser. It was this interview of Accetta, the Black family lawyers insist, that helped convince the jury that the shooting was not justified.
Q. How many shots did you hear?
A. From what I remember . . . I could hear three rounds that were shot off in the room. It was like 'bang, bang, bang,' you know. And then . . . . I ran towards the door, and I was pretty much fixated on getting the hell out of there. And I'm playing with the locks, you know, just in a frenzy, trying to get out of there. And the lump of people pouring out of the room, tumbling down, I'm only looking back in glances to make sure there's no shooting near me, trying to get out that door. I just kept on hearing shots, shots, shots . . .
Q. Well, did you hear more than the three shots?
A. Yeah, but the only shots I can really remember after that, that stay in my mind, you know, are the ones when he eventually got to the ground. Like he went tumbling down from the, from his bedroom . . . to the hallway tumbling down to the ground, and he got three shots pumped into him on the ground . . .
NYPD brass swiftly denied the officers fired at Earl from behind or fired into his body as he lay dying on the floor. As for the "foot-long carving knife" Earl supposedly brandished at the officers, that then became a two and three-quarter-inch tip of a knife, which cops said was recovered at the scene (several hours after the shooting) six feet from where Earl's twisted body lay.
"Out of the cesspool of official corruption and perjury . . . " the Black family lawyers argued in court papers, "perhaps the most appalling and pernicious slander is . . . that . . . Ivy Black a sixty-eight-year-[old] grandmother, who had just been shot, and who had just witnessed the brutal killing of her son took [the missing knife handle].
"Apparently the wounded Mrs. Black also possessed the power to make herself invisible, for she was able to do this in the presence of two police officers, a police sergeant, seven civilian witnesses, two EMT technicians, including one administering CPR, and scores of police flooding into the apartment, all without anyone seeing her. To support this fabrication it was necessary to have the officers out of the apartment so that the innuendo could be made that a family member must have snatched the missing 'knife handle' in their absence."
The lawyers questioned the officers' behavior in the aftermath of the shooting. "[The officers'] testimony was that they had both just emptied their revolvers in a 400-square-foot apartment containing nine civilians," they noted. "One person had been killed and another wounded, and they claimed to be under the belief that the doctor whom they were initially trying to rescue was dead or seriously injured.
"When the shooting stopped [the officers] without checking the condition of the doctor, Ivy Black, or any other civilian . . . immediately left the apartment to 'get a breath of fresh air.' Of course, as luck would have it, a 'dark object' (although never expressly identified as such, presumably the knife handle), which Petrullo had observed in a 'pool of blood' before leaving the apartment, was no longer there."
At the trial in 1997, Joseph Accetta told the jury that during assistant district attorney Glaser's grilling of him he was never asked if he had seen Earl Black with a knife.
The jury's verdict in favor of the Black family stunned the office of the city corporation counsel. Judge Ramirez dismissed motion after motion to set aside the verdict, adding that "an important public interest in vindicating the constitutional rights of the plaintiffs was in fact served."
Seeking to overturn the appellate panel's ruling, the Black family lawyers turned to attorney Randolph Scott-McLaughlin, a Pace University law professor, who is an expert on the Constitution. McLaughlin wasted no time poking holes in the court's reasoning behind its decision.
"Ivy Black was standing next to Earl when she herself was shot," Scott-McLaughlin reiterated in his failed motion to reargue the Black family's position. "According to Mrs. Black, Earl did not have a knife, a fact also denied by Earl's father Alvan, who watched from the living room as the police continued to shoot his son. The court has not addressed why it was impermissible for the jury to credit Mr. and Mrs. Black's testimony."
According to McLaughlin, even if the court felt Earl's parents would seem naturally biased against the cops, it should have carefully weighed the testimony of Emergency Medical Technician Michael Tambasco. McLaughlin excerpted the following exchange in court:
Q. When you arrived at the apartment can you tell us generally what you found?
A. We found pandemonium and a patient lying on the floor taking agonal breaths.
A. They were down at his side.
Q. Did you notice anything in his hands?
Q. Did you notice a knife in his hands?
Q. When you went to the general area where Mr. Black was that you've indicated did you see any knife in that area?
Q. Mr. Tambasco, I'm showing you [a photo of a knife blade purportedly recovered from the area where Earl Black's body had fallen]. When you responded to the area where Mr. Black was, you said you were doing CPR for about twenty minutes?
A. Overall, yeah.
Q. Did you ever see this knife in this area?
Q. Did you ever see any knife?
Q. Did you ever see a knife handle in the area?
In addition, the Black family lawyers suggested that Dr. Saul Gorman may have had a reason to place a knife in Earl's hands. "At eight p.m. that evening Dr. Gorman . . . was treated at Coney Island Hospital for superficial lacerations," they noted. "Joseph Accetta had observed Dr. Gorman being knocked down into a dresser when the police and Earl tumbled onto the bed. Dr. Gorman's hospital record states that 'patient states he was assaulted by patient in patient's home.' The hospital record contains no reference to a knife or injury caused by a knife. Dr. Gorman testified that in the wake of the incident he and Coney Island Hospital were concerned about potential civil liability. Immediately after the incident Dr. Gorman was taken to the police precinct, where he remained for approximately six hours. The following day Dr. Gorman appeared at a joint press conference where he corroborated the [officers'] story."
Ivy Black felt she was doing the right thing when she called on mental health experts to help her son. As the late Joy Black recalled during her deposition, her mother had summoned the outpatient team when she observed Earl "getting a little nervous."
"Don't worry," Joy said one of the experts assured her, "We are capable people, nothing will go wrong."
Everything went wrong.
Ivy Black remembers walking behind Earl as he was coming out of the bedroom. According to her lawyers, as she came around the corner out of the bedroom, she realized for the first time that the police were shooting when she saw officers Goldman and Petrullo with their guns drawn and pointed at Earl.
"Please don't shoot my sick son!" she screamed. Shots rang out. Joy said her mother also shouted, "Oh, you killed my son!" and, as a bullet meant for Earl ripped through her right breast, she cried, "The same thing you did to my son is going to happen to you, from generation to generation!"
Additional reporting: Karen Mahabir
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