To many who sat in on the Sean Bell trial everyday, as I did, Justice Cooperman's verdict -- acquittal on all counts -- came as no surprise. While understandable from a legal perspective, it still seems there was something fundamentally wrong.
Tables were turned and the prosecution witnesses, largely members of the South Queens community, Sean Bell's friends and family who were with him on that dreadful night, were made into defendants, grilled about minor prior convictions and questionable "bad acts." Left was a void full of unanswered questions.
How could police officers mistakenly think a man had a gun and shoot him 50 times only stopping when they ran out of ammunition? Did these officers follow correct police procedure? What is correct police procedure? Aggressive defense lawyering combined with the prosecution's apparent failure to prep its witnesses and its inability to produce an expert testifying the detectives acted wrongly, made the prosecution's case all but impossible to prove.
In his verdict, Cooperman said he found much of the prosecution eyewitness testimony lacking in credibility. I don't wish to chide the defense attorneys. They did their jobs and they did them well, taking an Alan Dershowitz approach: never be on the defensive; be on the offensive throughout the prosecution case so when it comes to your own, you have little to do. And, it is legitimate to elicit witnesses' prior convictions and bad acts, but only for the limited purpose of questioning their credibility. But at times the defense was overzealous, using priors - most for minor, nonviolent crimes, and acts that aren't even bad, like making a rap CD - not to question the witnesses' credibility but to make the Bell group out to be hopeless "thugs" who brought this tragedy on themselves.
Briefly, the trial facts: around 4:15 a.m. on November 25, 2006, Sean Bell, leaving Kalua Cabaret in Jamaica, Queens where he and about eight friends had celebrated his bachelor party, was killed after five police officers shot 50 bullets into his car mistakenly thinking his passenger, Joseph Guzman, was reaching for a gun. The undercover team had gone to Kalua, where it had recently made arrests for prostitution, drugs and weapon possession, to try to make one last arrest needed to close the club down.
Bell and his friends arrived at the club around midnight. At 1:00, the police team arrived and two undercover officers - Detective Gescard Isnora and Detective Sanchez entered the club. The undercovers tried unsuccessfully to solicit exotic dancers for prostitution and were about to leave when Isnora overheard a dancer complain to a man wearing a White Sox cap that someone was bothering her. "White Sox" man placed her hand on his waistband and told her he'd take care of it. Isnora believed, by its shape, the object in the waistband was a gun, which he radioed to Lieutenant Gary Napoli, head of the team. Napoli told the undercovers to keep watch over that man.
At 3:45 people began exiting the club. Isnora and Sanchez walked outside, and, pursuant to Napoli's orders, waited for "White Sox" man to exit. Bell's party stood nearby talking. Fabio Coicou pulled up in an SUV and got out, waiting for his girlfriend, a dancer. Bell returned to the club to retrieve his hat, and when he emerged Coicou said to him, "You can't be doing that; I got money in there." An altercation ensued between Coicou and the Bell group.
Accounts of the fight differed, but most agreed Coicou was threatening, holding his hand in his pocket indicating he had a gun, and that Bell and Guzman were angry. Bell's friends pulled Bell away saying it wasn't worth fighting. Isnora, watching the argument, heard Guzman say, "Go get my gat," (Gat is slang for gun) and Bell say, "Let's fuck him up."
The Bell group walked off. Believing Guzman was going to get a gun to do a drive-by of Coicou, Isnora, pursuant to Napoli's orders, followed him. Napoli radioed Detective Michael Oliver, "Move in." Coicou drove around the block to make sure the Bell men weren't going to do anything. Seeing them get into their cars, he decided the situation was resolved and returned to the club.
Bell got into the driver's seat of a white Nissan Altima, Guzman into that car's passenger seat, and Trent Benefield into the back. Isnora withdrew his gun and clipped his police badge to his neckline. When Napoli's car rounded the corner, Isnora nodded toward the Altima, indicating that was the car to stop. Napoli's car stopped down the block, and Napoli bent down to find a police light to put atop his car.
Isnora, who'd been nervous and scared throughout the evening, saw Guzman staring at him. Guzman appeared to reach into his waistband, Isnora thought, for a gun. "Police, don't move," Isnora, in front of the Altima, said. But Guzman didn't hear this, nor did he see a police badge; he only saw a man with a gun in front of the car.
Guzman told Bell, "let's do it, go, go." Bell stepped on the gas and sped forward, grazing Isnora's leg, forcing him to jump out of the way, then slammed into Oliver's van, which had just rounded the corner. Bell quickly reversed, nearly hitting Isnora again and crashing into a back gate. Isnora said he yelled "police, don't move. Police, show your hands," but the Altima went into drive and again slammed into Oliver's van. Oliver got out yelling, "police, don't move."
Still seeing Guzman reaching into his waistband, Isnora yelled, "he's got a gun," then fired three times at Guzman. Hearing the shots and seeing the Altima's passenger-side window blow out in the direction of the officers (which, experts testified, is possible even if a shot is being fired into a window), Oliver believed Guzman was firing at him. He began shooting too, as did Officer Carey, Oliver's passenger. Detectives Marc Cooper and Headley, both in Napoli's car, also got out and fired; one of Cooper's shots missing its target and piercing a nearby Air Train platform.
Benefield, shot in the leg, opened the back door and hobbled (his tibia fractured) down the street, where Headley caught and arrested him. Benefield said he was shot through the thigh while running, but all officers denied shooting him as he ran since he was unarmed. A defense expert testified bullet patterns on his pants indicated Benefield's wounds were all sustained while in the car. Bullets were found in several cars parked down the street on which Benefield fled, in a house window, and in a corner fence. Ballistics evidence showed these bullets may have ricocheted there.
Isnora shot 11 rounds, Oliver 31, Carey 4, Cooper 3, and Headley 1. Benefield was shot four times and sustained a fractured tibia for which he has a permanent metal rod in his leg. Guzman was shot 19 times and sustained the same wound as Benefield and neurological damage, resulting in a permanent limp. Bell, shot four times, was killed by wounds to the neck and chest.
None of the officers had ever before fired in the line of duty. None of men in Bell's car were armed, nor were there any weapons or weapon compartments found in the car. Bell and Benefield were intoxicated and Bell was legally blind in his right eye.
Oliver and Isnora were charged with intentional and reckless manslaughter, assault, and reckless endangerment; Cooper was charged with reckless endangerment for the bullet he fired into the Air Train platform. Carey, Headley and Napoli were not charged.
Both defendants and victims here are black men: Isnora, Cooper, Headley, and Sanchez are black; Oliver, Carey and Napoli are white; all Bell party members and Coicou are black. Lawyers representing Cooper and Isnora (to the dismay of prosecution-side spectators) are black; Oliver's attorney white.
Main issues were whether Guzman threatened to get a gun, whether Oliver shot at Benefield as he ran, whether Cooper was reckless in misfiring into the Air Train, and whether Isnora reasonably believed Guzman was going for a gun and he and Oliver acted in self-defense in firing numerous rounds into the Altima. All members of the Bell party saw a fight but said Guzman never said he was getting a gun. Benefield and Guzman said Benefield was shot while running. The defense needed to attack the credibility of the witnesses to show they were being untruthful, but in so doing, went overboard.
The first of the Bell party to testify was Harold James, a smallish man in his late 30s. He left the club before the shooting so wasn't an eyewitness, and nothing in his testimony seemed fabricated, yet he was questioned repeatedly on cross examination about his three cocaine-selling convictions. After eliciting one sale was near a school, Anthony Ricco, Isnora's stand-out attorney asked, "these are just the times you got caught, right? You're not telling Justice Cooperman these are the only three times you've ever sold, are you?" James's eyes darted back and forth from Ricco to the judge to the audience. Looking for a second like a deer in headlights, James's forehead slowly uncreased and he relaxed and spat out,"I ain't telling him nothin'." It was amusing the way he said it and laughter spread through the courtroom as even Ricco and emotion-less Cooperman cracked smiles. Other cross examination was not so humorous.
Larenzo Kinred, a seemingly sensitive 34-year-old who cried throughout his testimony, didn't see the shooting. He saw a heated argument, but never heard Guzman threaten to get a gun. He was also cross-examined on his priors: four, all for nonviolent drug possession. More, defense attorneys played video footage taken on the scene showing Kinred angrily telling the cameraman he'd seen the whole thing (which he admitted was untrue) and that police shot his friends for nothing, since they didn't even have "burn" (slang for gun). Defense attorneys repeatedly asked Kinred what burn was and how he knew about it, suggesting he was experienced with guns.
James Kollore, 32, seemed polite and honest. Kollore said Coicou appeared to have a gun and didn't remember telling him he'd take the gun from him but admitted he may have said it. He saw the shooting, and remembered Carey firing after the initial, not final collision, contradicting defense witnesses. On cross, Ricco asked Kollore extensively about his convictions from the early 90s for gun and cocaine possession. He'd owned a gun for protection, he said, but never carried it on the street. A good deal of his cross examination consisted of questioning about his former rap group, as defense attorneys elicited that the group produced a CD containing "hustling" songs titled "We Be Thuggin,'" "Let Off A Shot," and "Gangsta." Everyone in the courtroom seemed to look at each other quizzically, wondering what this was about. Presumably, the defense thought if he made songs about guns, he must have experience with them. But making music is an artistic, not criminal endeavor.
Johnell Hankerson, a 30-year-old medical technician and Nicole Bell's brother-in-law, was soft-spoken and on the verge of tears throughout his testimony. The defense strategy on cross was to suggest Hankerson had a gun in his car, which the men planned to use on Coicou. After speaking with Bell through his car window, Hankerson saw Isnora, gun drawn, "creeping up" on the Altima from behind. Scared, Hankerson began to run. Behind him he heard an engine rev, tires screech, and many gunshots. He kept running, later returning to see Benefield on the ground, cuffed and screaming.
Emotionally unable to drive, Hankerson took a cab to Jamaica Hospital, where officers told him Bell was taken. He cried on recounting this. After being told Bell died, Hankerson returned to the club for his car.
On cross, Ricco delved into Hankerson's 10-year-old prior convictions for drug possession and unlawful imprisonment. Hankerson admitted having a gun in his 1996 unlawful imprisonment case, but averred he's "moved on with his life." The defense also elicited lengthy, confusing, testimony about April 19, 2007, when Hankerson was shot. Attorneys asked why he hadn't talked to police about that case, whether he had an attorney for it, whether he had a gun on that day, and whether he was testifying here to curry favor with prosecutors so they'd drop other charges. The judge sustained the prosecutor's repeated objections. Defense attorneys asked Hankerson if he took a cab to Jamaica Hospital so his car wouldn't be searched. He said no. It was never made clear whether Hankerson was charged with anything on April 19th or what that had to do with this case, and Hankerson seemed genuinely confused when asked about it, and about why he took a cab to the hospital.
Trent Benefield, 24, had no prior convictions. A quiet, well-mannered man, Benefield seemed honest, admitting things against his interest (like having a marijuana addiction and being drunk and high at the club). On cross, attorneys focused on Benefield's marijuana habit, asking him how he paid for it since he wasn't working, and whether he'd bought it with money from a charity aiding him, to which Benefield said he didn't know.
Guzman, 32, a large man with a pronounced limp, seemed to be an honest, tell it like it is guy, and though composed on direct examination, became angry on cross. Guzman testified he thought Coicou had a gun but never threatened to get his own, and initially bothered by Coicou, decided they'd had a good time and should just leave.
As they were pulling out, a minivan collided with them head-first. Guzman spotted Isnora standing in front of him pointing a gun. He saw no police badge and had no idea who he was. The next thing he knew, Isnora had shot him on the right shoulder. Guzman's arms were hanging around his waist; there was nothing in his waistband. Guzman told Bell, "let's go, let's do it. This isn't a robbery; he's trying to kill us." Guzman felt himself struck again, then saw a white man standing aside the minivan pointing a gun at him as well. Getting hit more, Guzman tried to turn sideways toward Bell to escape the bullets.
Bell reversed, hit something, shifted into drive and tried to pull back out. But he hit the minivan again. The gunfire was now continuous, "like crazy, like it's a take-out." Benefield opened the back door and fled, after which all attention and gunfire shifted toward him.
On cross, Guzman was asked at length about his two prior convictions: one for a 1995 reckless endangerment, and one from 2002 for selling crack. Regarding the first, Ricco elicited that Guzman had originally been convicted of acting in concert to commit robbery during which his accomplice wielded a gun. The conviction was overturned and Guzman pled guilty to reckless endangerment. Asked whether he used a gun in 2002 to protect his drugs, Guzman said no.
Ricco also asked Guzman about his rapping. Years ago they put out a CD "to make money, like anybody else," he answered, annoyed.
In closing arguments, one defense attorney said the prosecution witnesses consisted of crack dealers, convicted felons, and people who were no strangers to gun. Ricco, in his summation, used the evidence of prior convictions to contrast the character of his client with those of the prosecution witnesses. While both are from poor communities of color, Isnora, instead of turning to a life of crime, like Bell's friends, went to college and became a crime fighter, Ricco said. Instead of selling crack, stashing guns in his car, and doing time in prison, he put his life on the line everyday to help his community. The prosecution, Ricco charged, "dressed up their witnesses in rented suits." He reminded the judge of the on-the-scene videos of Kinred and others yelling at the camera, wearing do-rags, and talking about "burn."
While any history of gun use Guzman might have had would have been relevant had Isnora and Oliver known him beforehand and had reason to be scared that he now, like in the past, possessed a gun, the fact that this was their first experience with Guzman negated that relevance. Apart from Guzman, there was no valid reason for making the Bell party out to be gun-toting "thugs." Making them into such, which the vast majority were not, having only low-level convictions for nonviolent drug possession, went far beyond impeaching their credibility.
Likely because it was a judge, not a jury trial, head prosecutor Charles Testagrossa seldom objected to these attacks on his witnesses. But he exposed them to further attack by, apparently, not adequately prepping them for trial. It seemed that witnesses, some of whom clearly contradicted prior statements they'd made under oath, had not been reminded of those statements, which were recorded and introduced in court.
Fabio Coicou, a 30-year-old medical technician, claimed on direct examination that the confrontation outside of the club was not serious. When Bell passed him, Coicou warned him not to let alcohol take control. Bell told him it was not. Backing up, Coicou put his hands in his pockets, indicating he didn't want to fight, and said, "I have bread in there," referring to his girlfriend. Bell appeared to understood. After the men all realized they were from the same neighborhood, the Bell group walked off. Coicou insisted he never heard anyone say they were going to get a "gat," or a gun.
However, defense attorneys elicited that Coicou told prosecutors two months after the shooting he did hear someone threaten to get their gun. He also characterized the confrontation differently to the Grand Jury. He'd testified there the Bell party was impatient, rowdy, and "making a scene," and that he was scared since he knew "people don't like to stay calm." He knew they'd been drinking and felt, "if you talk to a drunk person the wrong way he might hurt you." He told Bell they were grown men; there was no reason to act "this way." He was trying not to have a "situation" with them and was concerned he would be outnumbered.
Coicou also told the Grand Jury he got into his car and drove around the corner because he feared the Bell men were going "to get whatever to do whatever." He thought this because he saw several men from that group standing around the corner "peeking" at him. When read his Grand Jury testimony, Coicou went to great lengths to repudiate it, leading to largely incomprehensible testimony: he didn't see any men at the corner, but he didn't know what the men he didn't see might do. He thought they were a "diversion" but couldn't define what he meant by that. He claimed his statement to prosecutors that someone threatened to get a gun was wrong.
It appeared Coicou had entirely forgotten about his prior sworn statements. Had Testagrossa prepped him, asked him what he'd testify, and reminded him of his prior statements if he departed from them, these numerous inconsistencies wouldn't have demolished his credibility. Coicou fought repeatedly with defense attorneys -- asking them if they were pimps, telling them to get dictionaries, etc.; perhaps Testagrossa had tried to prep him to no avail.
But Benefield's trial testimony also contained major inconsistencies with his prior statements. At trial he denied hearing Coicou say he had a gun. But he'd told prosecutors during an interview that Coicou said, "I got it; it's in my pocket. I'll shoot you." At trial he said he covered his face once he saw Isnora and only remembered Bell hitting the van once. But he'd told officers at the hospital Bell's car hit something, reversed and crashed into something else, then sped forward again and crashed a third time. Benefield said at trial he was shot down while running away, but told the officers he was shot in the car and fell down. His taped interview with the officers was played in court. Not knowing how to rectify the inconsistencies, Benefield said he "made up" what he told the officers.
Benefield was a key witness whose credibility was essential. Had Testagrossa discussed with him his testimony and prior statements before trial, they might have been able to work through inconsistencies. Benefield seemed caught on the spot when the tape was played, and he didn't know how to reconcile the inconsistencies so said he fabricated his earlier statements, making him look like a liar.
But the biggest problem with the prosecution case was its inability to produce a witness to say the detectives were reckless, that they did not act properly according to police procedure. Instead, the prosecution tried to do this through the testimony of team leader Napoli, who was close with the defendants and was a shaky witness anyway, and Officer Carey, a defense witness.
Napoli was so nervous throughout his testimony he seemed to have difficulty even with easy questions, often asking they be repeated. He testified that, while bent down in his car searching for a police light, he heard tires screech, a collision, and gunshots. Believing Isnora had tried to stop the Altima and its occupants were trying to shoot their way out, Napoli thought the team was "under fire." He grabbed his gun and looked out his window. Seeing Sanchez in his line of fire, Napoli exited the car, and, crawled around to the rear. When he got there, the gunfire was over. Napoli never fired.
Testagrossa elicited from Napoli that he was trained to take cover, assess the situation, and identify a target before using deadly force. Napoli said he wouldn't fire before identifying a target, but that sometimes it was impossible to do so.
Carey, 27, testified on the defense case. He said after the Altima crashed into the van the second time and Isnora yelled "he's got a gun" and fired into the passenger seat, Carey, thinking Guzman had a gun, fired at him three times. Then, noticing Isnora was walking into his line of fire, Carey stopped shooting and ducked behind the passenger door. Realizing this was not adequate cover, he ran around behind the van, whose engine provided cover. By the time he got there, the gunfire had stopped, so he fired no more.
In his summation, Testagrossa argued Napoli never fired because he couldn't identify a target and Carey stopped firing after only three rounds, took cover and reassessed. But this wasn't sufficient to show Isnora and Oliver, in contrast, acted recklessly. Napoli said he didn't fire because Sanchez was in his way and that sometimes one couldn't identify a target. And Carey said he stopped shooting and ran for cover because Isnora was in his line of fire. And neither Napoli nor Carey testified that they wouldn't have done what the defendants did if they were in the same position; only that they did things differently.
What was Isnora supposed to do, Ricco asked in summation. If he believed deadly force was about to be used against him and he was in the middle of the street with no cover, how should he have acted? He thought the men were trying to run him over and Guzman was reaching for a gun. He was following Napoli's orders in following Guzman. How did Isnora deviate from the standard of conduct a reasonable police officer would have engaged in? And, regarding Oliver, could no one testify that shooting 31 times, reloading once, without stopping to reassess was improper?
Since we never heard the "standard of conduct a reasonable police officer would have engaged in," how could it be determined if Isnora and Oliver deviated from it? The prosecution has the burden of proof.
Maybe this is the fundamental problem with cases involving police shootings. Maybe there is never an official willing to testify to what a reasonable police officer would have done differently.