History is no guarantee of conviction in NYPD caseJames Cohen in The Associated Press, February 18, 2010
By COLLEEN LONG
The Associated Press
Thursday, February 18, 2010; 5:45 PM
NEW YORK -- From the beginning, a drug suspect's accusation that an NYPD officer sodomized him with a baton recalled the notorious police abuse case of Abner Louima.
Prosecutors said Louima's bladder and intestines were ruptured in the beating in a Brooklyn police precinct in 1997. They said Officer Justin Volpe beat Louima, brutally violated him with a broomstick, then threw him in a cell where he remained nearly an hour.
Jurors on Thursday were weighing Michael Mineo's claims that an officer sodomized him with a baton in a case with obvious similarities to Louima, right down to defense attorneys. But experts and a former Louima prosecutor say that confusing medical evidence and the historic difficulty of winning convictions of police officers could lead to the officers' acquittal.
"Jurors see officers, as they rightfully should, as people who are the protectors of the rest of us. They put their lives on the line for us every day they go to work. They tend to cut them a break," said James Cohen, a criminal law professor at Fordham University who specializes in police brutality cases.
Mineo testified during the monthlong trial that he was chased into a Brooklyn subway station by police who noticed him smoking marijuana, and that while handcuffed he was sodomized by Officer Richard Kern with a collapsible police baton.
Mineo was hospitalized twice after the alleged October 2008 attack, including days afterward for an abscess near his pelvis. Doctors who treated Mineo said his injuries were consistent with his claims, but doctors for the defense said they weren't plausible because had he been assaulted with the baton his injuries would've been worse - or at least more obvious.
Kenneth Thompson, who prosecuted the Louima case, said there was no doubt about what had caused the Aug. 9, 1997, injuries to Louima, who needed a colostomy bag after surgery and spent two months in the hospital.
Officer Justin Volpe pleaded guilty in the middle of the trial after initially arguing Louima's injuries were the result of having rough sex. One other officer was convicted, and three were acquitted. In the Louima case, the offending officers were white and Louima is black; Mineo is not making race an issue in his case.
"Abner Louima suffered horrible injuries. When they sodomized him, they literally ripped his intestines," Thompson said. "I'm not saying you can't be wrongfully injured by cops and suffer less, but it's not as easy for jurors when the medical evidence isn't overwhelming."
Thompson and other experts say that the nature of Mineo's injuries aren't as severe or as evident as in the Louima case. Jurors asked to listen again to testimony on the medical evidence Thursday.
Another critical issue in the Mineo case is whether jurors will believe testimony by Kern and Officer Andrew Morales, or testimony by Noel Jugraj and Andrew Maloney, two officers at the scene who testified for the prosecution. Jurors asked to rehear testimony by Maloney and Jugraj on Thursday.
"The 'blue wall of silence' is real," said Thompson. "The pressure to stay silent is crushing."
Kern has pleaded not guilty to aggravated sexual abuse and assault. Morales and Officer Alex Cruz have pleaded not guilty to hindering prosecution. John Patten, who is representing Kern, represented an officer acquitted in the Louima case. Stuart London, who represents Alex Cruz, works with the lawyer who represented the second officer convicted in Louima.
Defense attorneys said there was no code to keep quiet, and they ridiculed Maloney as "not the brightest bulb" and coached by prosecutors. They say Jugraj was trying to avoid prosecution himself.
But Assistant District Attorney Charles Guria said it was difficult for Maloney to come forward. Cruz was initially accused by Mineo of the assault, and he knew it was Kern, Guria said.
"He doesn't know either one of them from Adam, and he comes forward and risks his career and his standing in the police department. Why would he do that if he's not sure what he saw?" he said during the trial's closing arguments.
No major police brutality cases in New York have ended with convictions since the Louima case. Cohen said that's because jurors are often predisposed to side with police officers.
"Reasonable doubt is an elastic concept," he said. "What jurors tend to do is decide whether defendants are guilty on a gut basis. If they think they're innocent, the evidence is filtered through a reasonable doubt prism."
Defense attorneys say Mineo made up the story to get a huge payout from the city. Mineo has filed a $440 million lawsuit against the city.
Louima, a Haitian immigrant, won an $8.75 million settlement from the city and moved away from New York with his family. He now works in real estate investment in Florida.
Volpe pleaded guilty to civil rights violations and is serving a 30-year prison sentence. Officer Charles Schwarz was convicted of perjury for helping cover up the assault; his conviction was overturned, he pleaded guilty and he served a five-year term.
Mineo is something of a loner. He appears in court with his attorneys, if at all. There is no community rallying behind him. No protests or visible outrage in the case, unlike other police brutality cases.
"They picked the right guy to do this to," Thompson said. "He has no vocal group behind him, no one outraged or protesting."