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Times Picayune - New Orleans,L
29 June 2007

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New Orleans Police Department,

Police abuse case back to squa

In an effort to save a high-profile case from falling apart, District Attorney Eddie Jordan's office on Friday scrapped its original charges against the former New Orleans cop accused of viciously beating a 64-year-old man in October 2005 in the French Quarter, which was captured by videotape and repeatedly broadcast across the nation.

Instead, prosecutors decided to bring a fresh set of charges against Robert Evangelist, who was caught on videotape aside two other officers during the arrest of Robert Davis, a retired school teacher, on Oct. 8, 2005.

That evening, in the immediate weeks after Hurricane Katrina shattered the region, cameras recorded white New Orleans police officers forcefully subduing a bloodied Davis, who is black.

The move by Jordan's team means the two-year-old prosecution that became an instant symbol of NOPD's post-Katrina difficulties starts all over again. Evangelist, 38, on Friday pleaded not guilty to the new charges of second-degree battery and false imprisonment.

"He would like to get this over with," said defense attorney John DiGiulio, who represents Evangelist and lamented the two-year delay. "He believes he is not guilty."

At issue is the fact that prosecutors who first worked the case had received administrative reports compiled by the New Orleans Police Department during its internal investigation. In cases of alleged police brutality, NOPD must conduct an administrative probe, which under the law cannot be used in the criminal prosecution.

Public employees have the right to speak openly in an administrative hearing and not have their statements used against them in a criminal case. That right comes from a 1967 U.S. Supreme Court case in which a New Jersey police department forced its officers to come clean or risk losing their jobs.

The justices ruled that any administrative probe must remain separate from a criminal one, since witnesses may not be intimidated into testifying in court.

In an attempt to cure any potential problems, Jordan's team assigned a new Assistant District Attorney to the case and re-filed charges Friday at criminal district court.

Evangelist, Lance Schilling and Stewart Smith were originally indicted by a grand jury, but for the second round, prosecutors filed charges on their own.

"To eliminate any appearance of impropriety," said Assistant District Attorney Cate Bartholomew on Friday in court, adding that her predecessor on the case did not use the administrative findings in prosecuting the three men.

The case had only two defendants after one committed suicide this month. But on Friday, Judge Frank Marullo kicked out the charge against Smith, saying prosecutors had blown the one-year legal deadline in bringing him to trial in the misdemeanor battery case that was kept separate from Evangelist's felony case. Prosecutors said they will appeal the Smith decision.

Schilling, 30, fatally shot himself in the head June 10 at his Metairie home, according to the Jefferson Parish coroner's office. He had been charged with second-degree battery.

Marullo on Friday blasted prosecutors for their handling of the cases."You take the same bill of information and re-file it and it cures the wounds?" Marullo asked, before throwing out the misdemeanor charge against Smith once again.. "That's ridiculous."

Under well-established case law, prosecutors can never use administrative reports when criminally charging police officers, he pointed out.

Marullo set a hearing date for next month, but said he was not convinced that Jordan's office was following the law in re-charging Evangelist and Smith.

"They're all the same DAs, right?" Marullo asked Bartholomew. "And that washes it clean? Is that what you're saying?"

Marullo also gave Jordan's office a stern warning on having missed Thursday's scheduled hearing, saying they kept him out of the loop on an incredibly important case for the city.

"The state of Louisiana decided they could continue a case over the telephone without telling me," Marullo said. "Nobody showed up yesterday. I was sitting here by myself. I don't know what kind of games you're playing at the DA's office. That better not ever happen again, or I will deal with the head of that office."

Since prosecutors have filed their own charges, they must participate in a preliminary hearing if the defense team asks for one. Such a hearing requires the state to essentially show its evidence, giving the defense team a welcomed preview of trial.

After that hearing, Marullo must decide whether the state has enough of a case to proceed to trial.

The Oct. 8, 2005, confrontation was captured by at least two people with video cameras, providing graphic footage of Davis bleeding as Evangelist and Schilling forcefully brought him down and placed him in handcuffs.

It played again and again as Americans were glued to news reports about the devastated city.

Evangelist and Schilling, both assigned to the 8th Police District at the time, were
fired after the incident became fodder for television news networks.

Smith, 51, however, was suspended for 120 days after the 2005 incident, and only accused of simple battery for allegedly jabbing his finger in the face of an Associated Press producer whose crew was recording the incident.

"I've been here for six weeks trying to keep f------- alive. F------go home," Smith apparently yelled in the producer's face, shoving him onto the hood of a police cruiser parked on Conti Street near Bourbon Street, the videotape shows.

Smith remains an NOPD officer.

"He's back doing his job," said his defense lawyer Eric Hessler, who added that the news producer didn't want to see Smith prosecuted for lashing out at him that night.The police beating case has been troubled for months. Marullo threw out the indictment against Smith on June 1, finding it flawed because prosecutors improperly used a statement Smith made during the administrative probe.

The officers said they stopped Davis on suspicion of being drunk and violating the post-Katrina city curfew and that he became hostile. Davis was booked with public intoxication, but never charged. He said he had left his hotel room to buy cigarettes and hadn't been drinking when the officers approached him.

Deputy Chief Marlon Defillo, who became commander of the Public Integrity Bureau months after the Davis arrest, said Friday that he has no idea who sent Jordan's team the administrative report.

"It's unbeknownst where it came from," said Defillo. "We understand very clearly that you cannot use administrative reports in a criminal proceeding."

At the time of the incident, Defillo remained the department's spokesman, telling reporters that the case "concerns us to the point where this office and the public will demand action be taken."

Defense lawyers for Evangelist, however, sported nothing but confidence Friday.

"We're ready to go ahead and go to trial," said defense attorney Frank DeSalvo, who along with deputy city attorney Franz Zibilich are representing the ex-officer.

In Marullo's court, when prosecutor Bartholomew asked if the trial would take more than one day, Zibilich replied, "Less than one."

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Times Picayune - New Orleans,L29 June 2007

Police abuse case back to squa

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Times Picayune - New Orleans,L
29 June 2007