2008-06-13 / Columnists

From the Editor's Desk

Of Crime, Punishment And Lawsuits Against The City
Commentary By Howard Schwach

You have to love New York City juries.

In August of 1988, Darryl Barnes was seen running through the streets of the Bronx wielding a Tec-9 semiautomatic gun. An off-duty police officer identified himself and ordered Barnes to stop.

After a chase, Barnes fired at the officer and then continued running. The officer again identified himself and ordered Barnes to stop and put down his weapon.

Instead, Barnes fired at the officer. The officer returned fire, striking Barnes, who sustained severe spinal injuries, resulting in paralysis.

He sued the city, claiming that it was responsible for his paralysis and a psychosis that was the result of the shooting.

The case went to trial twice. In the first trial in April of 1998, a Bronx jury of his peers awarded him $76.4 million of your money.

Think of it. A guy carrying a gun, shooting at a cop, running away, and a jury awards him multiple millions. One can only contemplate where he was going with the gun and what he was going to do when he got there. That a cop saw him and stopped him was in the public good.

Yet, a jury made up of that public thought that Barnes was wronged so badly that they awarded him millions of dollars.

That amount was reduced by the court to $8.9 million, still a princely sum for somebody who was shot while trying to shoot and kill a cop.

The city appealed on many grounds, the most important being the fact that the trial judge had improperly excluded mention of the fact that Barnes was a member of the "Five Percenters" gang, well-known for its vigorous resistance to arrest and its hostility to police officers in general.

The city won.

The next trial was held before a jury in March of 2003.

Barnes refused to attend the trial because he wasn't feeling well, but the Bronx jury of his peers awarded him $50 million, which the court reduced to $10.75 million.

That's the second jury that took a look at the incontrovertible facts of the case and decided that the cop was wrong to shoot Barnes even when Barnes turned and tried to kill him.

Because Barnes would not attend and allow himself to be cross examined, the defense was allowed to read his pre-trial hearing testimony into the record.

In 2007, the Appellate Court unanimously threw out the decision of the jury and dismissed the case entirely. The court found that Barnes had not demonstrated that he was unable to testify in court.

"By not testifying, the plaintiff was able to frustrate the city's fundamental common law right to cross-examine a witness," the Appellate Court decision said. "Barnes had a good reason to avoid coming to court to testify. His strategy denied the city the opportunity to confront and test his credibility on such matters as the assertion that he had no familiarity with guns and that he did not fire at the officer, and to impeach [Barnes] by way of his guilty plea to attempted assault in the first degree, the very act that was the subject of the trial. A deadly weapon was found at plaintiff's feet with two empty shell casings, those corroborating the officer's account that plaintiff had fired the gun at him."

The city eventually won the case, and it was clear from the beginning that he had, in fact, been carrying the gun, did flee from the police officer, who clearly identified himself, and did shoot at the cop.

It was also clear that the cop did not fire until Barnes fired at him.

Yet two juries, 24 peers impartial and true, found that the police officer, and through him, the city, was wrong for shooting Barnes.

While this case became a poster boy for Tort reform, it is not the only case in which an armed man shot at police officers and was wounded in return received a large damage award from a jury.

Only two years ago, a man who was robbing people at gunpoint in a Brooklyn subway station jumped onto the tracks to escape the police officers who were trying to arrest him.

He got hit by a train and lost a leg. He sued the city for damages and a jury awarded him millions of dollars, stating that the police were at fault because they chased him onto the tracks.

That case is still going through the court system, but it adds weight to the fact that city juries will most often side with the criminal rather than with the cops and the city.

Which comes back to the Sean Bell Case.

Doesn't it often seem that everything comes back to the Sean Bell case?

A number of our black leaders, including Malcolm Smith and Greg Meeks, have called for a new state law that would allow a prosecutor to turn down a defendant's request for a bench trial rather than a trial by jury.

That would fly in the face of all of the common law rights we have built up since the Magna Carta and the Constitution.

How can you trust a jury to rule on the facts rather than on emotion and a distrust of the police?

And, make no mistake, many in the black community have a great distrust of the police.

If you don't believe that juries can make rulings based on that mistrust, just take another look at the Barnes case.

When asked by the daily papers after the original case, one black juror said that he believed that the cop was lying.

"The cops always say that we shot at them," he said. "That gives them the right to shoot back and kill us."

Troy Benefield, one of the men in the car with Sean Bell on the night Bell was killed in a fusillade of police bullets said it best.

Benefield continually called NYPD Detective Giscard, who is black, "boy."

That troubled one of the defense counsel, also black, who asked Benefield why he kept calling Gescard "boy,"

Benefield thought for a moment and then responded with the tag line of the trial.

"I don't have any respect for any of them," he responded, meaning the cops. And that, your honor, is the problem.

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