After sitting through 28 days of testimony in the trial of detectives charged in the death of Sean Bell, a black man shot 50 times by police on leaving his bachelor party, by the end, I knew far more about Mr. Bell's friends' prior convictions than why the officers, particularly Detective Michael Oliver who shot 31 times, acted as they did. Arguing the case revolved around credibility, defense attorneys focused much of their lengthy cross examination on the eyewitnesses' -- mainly Mr. Bell's friends -- prior crimes and "bad acts." Though diligent in doing their jobs, the cross examination went beyond impeaching credibility, as lawyers made the Bell men out to be gun-toting thugs who were likely dangerous, though they didn't, as it was, have a weapon. This tactic worked well with the judge, who in his verdict, said he acquitted the detectives largely on what he found to be the "eviscerated" credibility of the eyewitnesses, citing their prior convictions as part of that determination.
These convictions were almost all for minor, nonviolent crimes committed long ago. None of these witnesses had assaults, burglaries, homicides, rapes in their backgrounds -- almost all involved drugs. Harold James had three priors for cocaine sale; Hugh Jensen, a decade-old grand larceny, James Kollore, drug and gun possession charges from early nineties; Johnell Hankerson, drug possession and unlawful imprisonment from the mid nineties; Jean Nelson, three marijuana possession cases and one for gun possession from 1999; Joseph Guzman, shot 19 times, had a cocaine case and a low-level reckless endangerment from 1995; and Trent Benefield, shot four times, had no priors. Defense attorneys asked everything under the sun about these convictions: how many times they sold drugs without getting caught, how much prison time they served, the facts, original charges, and procedural histories of the cases. Witnesses said their convictions were in the past; they'd moved on with their lives, now had jobs, had possessed a gun for protection. Hankerson was asked numerous questions about his being the victim of an April 19, 2007 shooting, including whether he'd possessed a gun on that day, whether he was charged with a crime, whether he needed a lawyer, and whether he was testifying here to curry favor with prosecutors. All answers were no; Hankerson seemed genuinely confused by the questions. Attorneys spent hours questioning witnesses on a rap music CD they made in 2001, eliciting that song titles and lyrics spoke of the "thugging" life. In closing arguments Oliver's lawyer accused the prosecution of having the nerve to prove their case through witnesses who are "crack dealers, convicted felons, and people who were no stranger to guns."
A seasoned defense attorney knows how minor all these crimes are in comparison to the catalog-sized rap sheets one often sees. The majority were for nonviolent drug possession, classically viewed as victimless crimes. All the gun possession cases were from the early to mid-nineties when New York, especially the projects, was a far more dangerous place, when many carried guns for protection.
The existence of the priors is part of the same overall racial profiling that one could argue landed Bell in the morgue. Over eighteen percent of the black population is imprisoned, compared to 3.4 percent of the white. Thirty-two percent of black men will serve at least one year in jail in their lifetimes, compared with six percent of white males. Regarding drugs, though there are far more arrests of whites, particularly for marijuana and powder cocaine use, more blacks are charged with drug crimes and the number of incarcerated black drug offenders is nearly double that of whites. Given such statistics, is it surprising that members of a black community will have some prior convictions?
The priors weren't elicited to impeach credibility but to show Bell's friends were a violence-prone bunch whom the detectives had every reason to fear. Evidence of prior weapon possession is only relevant where the shooter knew the victim. Here none of the officers had ever met Bell, Guzman or Benefield. They didn't shoot because they knew the men had guns in the past and therefore may have one now.
And, credibility was not the main issue. The central factual contention was whether Guzman, whom all parties agreed got into a heated argument with another man shortly before the shooting, threatened to get a gun. Undercover Detective Gescard Isnora said he heard Guzman so threaten, which is why he followed him. None of the eyewitnesses heard Guzman say the word "gun" but some of them were still inside the club for part of the argument, many were drunk, some high, all presumably tired -- it was 4:00 in the morning. Most eyewitnesses lacked prime capacity for observation. And no one was expecting a shooting to happen for which they'd later have to give details. Does the fact no one heard Guzman threaten to get a gun mean everyone lied? That Guzman didn't have a gun means either he was bluffing and no one took him seriously enough to register what he'd said, or that Isnora misheard him.
Contrast the focus on the eyewitnesses' priors with testimony regarding Oliver. While there was ballistics testimony about his bullets piercing cars, home windows and fences along the street, the only evidence of why he shot 31 times into Sean Bell's car, even stopping to re-load at one point, was the reading into the record of his Grand Jury testimony, during which there was little to no cross-examination. Oliver simply said Lieutenant Napoli radioed him that the undercovers saw a man wearing a White Sox hat in the club with a gun. Around 4:15, Napoli said that man was exiting the club and to "move in." Oliver drove toward the club nervously. Rounding the corner, he saw Isnora in front of a car, which suddenly hit Oliver's van, then reversed and backed toward Isnora, before shifting into drive and re-hitting the van. Isnora yelled, "He's got a gun." Oliver heard shots and saw the car's passenger side window blow out. He got out, yelled, "police, don't move," and, seeing Guzman reaching into his waistband, shot him. Soon, no more shots would fire from his gun, so Oliver re-loaded and fired until his magazine was empty. He claimed he reassessed the threat when re-loading and determined it still existed because Guzman continued reaching for what Oliver assumed was a gun.
Because Oliver didn't testify, he was never cross examined, but it is seems questionable that he reassessed. The evidence suggests Isnora fired first, and he probably eliminated his 11 rounds before Oliver finished his first magazine. Oliver's partner only fired four shots before running for cover and there were only four shots total coming from the other police car. So there likely were no more shots by the time Oliver began firing from his second magazine. Guzman was found lying atop Bell, which substantiates Guzman's testimony that he tried to lie onto Bell to escape the onslaught of bullets through his own window. It makes no sense then that Guzman was still upright and reaching into his waistband after Oliver re-loaded.
Nor did the prosecution ever present any testimony on standards of reasonable police conduct. Prosecutor Charles Testagrossa tried to prove Oliver and Isnora acted recklessly through the testimony of Napoli, a weak witness who seemed so anxious he couldn't remember simple questions and one who obviously knew the defendants well. Napoli said after he heard the gunshots, he believed his team was under fire. He grabbed his gun but saw a team member in his line of fire, so exited the car and crawled around to the rear. When he got there, the gunfire was over. Testagrossa argued that Napoli didn't fire because, as he testified, he was trained to take cover, assess the situation, and identify a target before using deadly force. But Napoli said he didn't fire because another officer was in his way and that sometimes it's impossible to get a target. Testagrossa needed an expert on police training to detail proper standards of reasonable police conduct to show how Oliver or Isnora deviated from them.
Early in the trial an African-American spectator introduced herself to me, explaining what happened to Bell could have happened to her son, that as a police officer she knew this is not how things were done and she was there for answers. I was there for the same. Double jeopardy bars re-trial, but we need to demand federal and / or departmental investigations to get the answers this trial never gave us.
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