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| NEWS > 12 January 2007 |
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New York Times - New York,NY,U
12 January 2007
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For Police Involved in Fatal S
The decision by four of the five police officers involved in the killing of an unarmed Queens man to voluntarily speak to prosecutors, giving investigators their version of events for the first time, poses certain risks for both sides, lawyers and legal experts say.
By voluntarily talking with prosecutors, officers can often try to gain points as well as offer insights into their state of mind during a shooting, the experts said. The biggest risk to a police officer, however, is that once he tells a story, he is married to it and can only change it later at his peril. Prosecutors can attack any inconsistencies during subsequent grand jury proceedings or at trial, some defense lawyers and former prosecutors said.
While prosecutors face few pitfalls in questioning officers in such cases — either before a grand jury proceeding, during it, or at both times — they risk criticism doing it beforehand because of the potential for cozy dealings between prosecutors and the police, legal analysts said.
Michael Hardy, a lawyer for the family of Sean Bell, the Queens man who was killed, said yesterday that he was concerned by the officers parading in, one after another, to tell their stories to prosecutors in the office of the Queens district attorney, Richard A. Brown. Mr. Bell died in a hail of 50 police bullets on Nov. 25, just hours before he was to be married.
“What does concern me is to the extent that such meetings would have some undue influence on the prosecutors and how they present it to the grand jury,” Mr. Hardy said. “It has the appearance of impropriety only because of the general suspicion that exists within the general public about the closeness of the relationship between the district attorney and the police. And that is why it boils down to whether or not there is real integrity to the investigation, because it really will depend on how they use the information the officers give and how aggressively they use it in the grand jury.”
Those who represent the Bell family as well as the two men who were wounded in the shooting have also expressed outrage over what they see as a basic weakness in the criminal justice system: that district attorneys investigate cases of excessive use of force by the police, with whom they must work every day.
They want legislative change to provide for the appointment of a permanent special prosecutor in such cases.
The only one of the five officers who fired his gun in the Bell shooting who has not spoken to prosecutors is Detective Michael Oliver, 35, who fired 31 of the shots.
A lawyer for Detective Oliver did not return phone calls seeking comment and it remained unclear yesterday if the detective planned to testify before the grand jury or speak with prosecutors.
On Wednesday, an undercover detective who fired 11 shots told his story. His name has not been publicly disclosed. Earlier, prosecutors questioned Officer Michael Carey, 26, who fired three times; Detective Marc Cooper, 39, who fired four times; and Detective Paul Headley, 35, who fired one shot.
Kevin Ryan, a spokesman for Mr. Brown, declined to comment on the case or on any potential grand jury proceedings. “The district attorney has said from the beginning, that it will be a full and thorough investigation,” he said.
In recent years, most police officers involved in fatal shootings in New York have testified in front of grand juries. Voluntarily speaking to prosecutors, as these four police officers have done, is less common.
Officer Bryan Conroy, an undercover officer who shot and killed Ousmane Zongo during a raid in a Manhattan warehouse, spoke to prosecutors and the grand jury, but was indicted and convicted.
Officer Richard S. Neri, who fatally shot a teenager on a Brooklyn rooftop, testified before a grand jury, but did not speak to prosecutors ahead of time, and was not indicted.
Whether a police officer and his lawyer choose to tell his story to prosecutors can depend on the clarity of what happened and whether the shooting appears justified, several lawyers said. Some factors are: Did the person shot by the officer have a weapon? Was it recovered? Were there civilian witnesses? Will those witnesses back up his story?
Several lawyers and former officials agreed to speak about the Bell case, but only on the condition of anonymity, because the case is sensitive and continuing.
One former city prosecutor said that the decision by officers on whether to testify before a grand jury often depends on whether the case is considered “a clean shoot.”
“If it doesn’t appear to be a good shoot, then they don’t go in there,” the former prosecutor said. “It’s a strategy issue with the lawyer and the cop: Do you want to create minutes that can be used to cross-examine you later at trial or that can limit the scope of your defense prematurely.”
If an officer believes he will be indicted no matter what, it may seem to make little sense to him to testify, though a strategy could be to testify and hope that an indictment would be for a lesser charge than second-degree murder.
Another strategy, particularly involving shootings with multiple officers, is to send officers who appear least exposed to criminality into the grand jury room first as a way of having their testimony speak for all involved.
“This is a case where the officers will talk about their state of mind, what their fears are,” Barry M. Kamins, a former Brooklyn prosecutor who is the president of the New York City Bar Association, said of the Bell case. “The grand jury could not get this from any other source, no matter what the cold facts are. So the officers go in, they waive immunity, but it is always a gamble.”
He added, “It is a gamble by the defense attorneys, but one I am sure they are taking after having reviewed the stories the officers are prepared to tell, prior to going in.”
How well an officer is received by grand jurors can depend on his own behavior, and whether he can articulate the facts that show the shooting to be justified, several lawyers and officials said. “They want to see his mannerisms, they want to see remorse,” said one lawyer who has represented officers in such cases.
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