A week into the trial of three cops in the Sean Bell case, the prosecutors’ theory that two of the cops were “acting in concert” when the bridegroom was gunned down in a hail of police bullets is striking a sour note with some observers.
For Judge Arthur Cooperman, who’s hearing the case without a jury, to convict on the top counts of first- and second-degree manslaughter, he’d have to believe “that they planned it and they all had the same mind-set,” says veteran defense attorney Marvyn Kornberg. “And that’s ludicrous.”
If anything, the prosecutors undercut their own theory during the first week of the trial by stressing the lack of planning by the accused officers’ unit on the night of the shooting and the chaos that followed.
The “acting-in-concert” idea underlies both of the manslaughter counts, which some attorneys with experience in such cases believe will have little chance of succeeding, especially with a generally pro-cop judge like Arthur Cooperman.
Right off the bat, knock Marc Cooper, a detective who couldn’t shoot straight, out of the discussion. Cooper faces only a misdemeanor count of reckless endangerment because his aim was so bad: One of his shots crashed through an AirTrain window 200 feet away. His aim, it turned out, was 11 degrees too high.
The two other detectives standing trial, Gescard “Jesse” Isnora and Michael Oliver, face charges of first- and second-degree manslaughter. Those two are thought to be responsible for 42 of the 50 shots fired on the night of November 25, 2006, into a car occupied by Bell and two friends, after Isnora incorrectly thought that one of three civilians was pulling a gun. Bell was killed just hours before his wedding, and his two friends were seriously wounded.
It’s the theory behind those charges that’s the real head-scratcher, because it implies that there was some sort of plan by the cops.
“There has to be a common purpose that’s agreed upon among the players,” says John Patten, who successfully defended Officer Sean Carroll in the Amadou Diallo murder trial. “This thing goes down so quickly it’s hard to imagine they had an agreed-upon common purpose.”
Asked to formulate an acting-in-concert scenario for the Bell case, a city prosecutor, speaking on the condition of anonymity, starts—then stops, noting: “I gotta say, it probably is a stretch.” A sitting city judge, also speaking on condition of anonymity, agrees, saying: “It’s a tough thing to charge if you figure the cops were only acting as cops.”
Gary Farrell, a former prosecutor with the Brooklyn District Attorney’s Office who is now a defense lawyer, says the second-degree manslaughter charge under the acting-in-concert theory is especially difficult to understand.
“How do you act in concert with somebody who you’re saying is acting recklessly?” Farrell says. “It doesn’t make sense.”
Queens District Attorney Richard Brown’s office declined to comment for this article. But Farrell says the acting-in-concert charge is so unusual that perhaps the D.A. tried to get a murder indictment, but this was all the grand jury left prosecutors with.
A likelier scenario, other lawyers tell the Voice, is that the prosecutors decided not to file murder charges, so the acting-in-concert theory was the only way to make the more serious charges fit for Isnora, who initiated the incident and fired 11 shots. Prosecutors can tie one of the two deadly shots that could have killed Bell to Oliver’s Sig Sauer handgun. But Isnora was firing the same type of standard-issue pistol as the three other cops who fired their weapons; that made it impossible to determine who fired the other deadly shot. Under the acting-in-concert theory, you don’t need to establish that.
In the end, many supporters of the shooting victims are likely to be steamed. “By only charging reckless endangerment one,” says the prosecutor who’s speaking anonymously, “you’re not exactly sending a message to the community that you are disciplining cops.”
But those charges are all that Bell supporters might be left with. Oliver and Isnora have additionally been charged with assault, and Oliver faces a separate count of reckless endangerment because one of the 31 bullets he fired passed through the window of a nearby apartment.
On February 25, the cold day when the trial kicked off, there was a flurry of protesters rallying outside the Queens courthouse. But by 2:30 p.m., after the television news crews and reporters meandered away, only Renee Harris-Pinkney, holding a sign with pictures and newspaper headlines, remained.
The 52-year-old woman, living in the South Jamaica Houses project, is a social worker with three grown sons who believes “this could happen to any black mother living in this city.” Her first reaction to the possibility that the cops wouldn’t be convicted on the tougher counts was anger. “There’ll be a riot,” she said. But then Harris-Pinkney conceded: “To tell you the truth, if they’re charged with anything, I’ll be happy. If they’re convicted of anything, I’ll be happy. That will show the police ‘You serve the law—you’re not above it.’ “