Sean Bell Shooting Trial Day 27: Is a Police Shoot-Out Akin to Gang Warfare?

Last week ended with the defense resting, then making a motion to dismiss the charges for legal insufficiency — a standard motion made in all criminal cases and one that almost never wins, but that is necessary in order to preserve issues for appeal (and for the attorneys to avoid claims that they were ineffective).

Right before the defense rested, they entered into a stipulation (agreement) with the prosecution that all of the minutes of Grand Jury proceedings, witness interviews with the District Attorney, and witness interviews with police officers, that were used throughout the trial to show a prosecution witness’s prior statement was inconsistent with what he or she said at trial, were accurate. This was legally necessary for the defense to prove those prior inconsistences, but it also gave the defense the chance to give a little round-up of all the prosecution witnesses’ inconsistent statements, as they went through them one by one. The inconsistencies ranged from pretty harmless (Mr. Dossantos, the owner of a bullet-pierced car, said at trial his wife told him about the car’s damage but told the Grand Jury it was an unidentified man who notified him of that), to those going to the heart of the case (Fabio Coicou, aka “SUV guy”, told the DA in an interview shortly after the shooting that someone in Bell’s party said, “we can take you right now” and “we’ll get the gat (gun)”, that Bell told his friend not to reveal his real name, that Coicou was scared the men were going to “charge” him, and that he saw the some of the Bell party men “peeking” around the corner after walking away and feared they “were going to go get whatever to do whatever”, yet claimed at trial that he never heard or thought any of those things). There were 11 such inconsistencies in all, but I think Coicou’s were the most important.

The defense motion to dismiss the charges for legal insufficiency was full of legalese and I’m sure mind-numbingly boring to most people, so I won’t go into it all, except the one part I found interesting. Anthony Ricco, Detective Isnora’s attorney, pointed out that there have been no cases in this country involving on-the-job police shootings of suspects who ended up dying from their gunshot wounds in which the prosecution has proceeded on a theory of acting-in-concert to commit reckless manslaughter. Since it is not known which detective’s bullets killed Sean Bell or injured Joseph Guzman or Trent Benefield, in the prosecution’s original motion papers, they charged Detectives Oliver and Isnora with acting in concert to commit the reckless manslaughter of Bell and reckless assault of Guzman and Benefield by aiding each other in firing (a theory others have noted is problematic). To substantiate that theory, the prosecutor cited a case called People v. Russell.

But, Ricco pointed out, that that case involved gang warfare. In that case, two rival gangs open fired on each other in a crowded area, thereby killing innocent bystanders. It could not be determined exactly whose bullet killed each victim, so all of the shooters were charged together with acting in concert to commit reckless homicide.
But this case is wholly different, Ricco said. Here, there were not two violence-prone gangs so caught up in murdering each other that they grossly disregarded the welfare of innocent bystanders. Rather, this case involves a group of police officers trying to maintain order and peace in the community, trying to prevent violence, not cause it. To allow Oliver and Isnora to be convicted on a theory of acting in concert to commit reckless manslaughter, akin to gang members, would be anathema to public policy, to proper policing functioning.

The District Attorney (this time in the form of eloquent but soft-spoken John Castellano, head of the Appeals Bureau, approaching the podium for the very first time this case), responded to this particular argument, by saying that there were other cases of acting in concert to commit recklessness manslaughter that did not involve all out gang warfare (albeit none involving police officers acting in the line of duty), that the theory wasn’t that unusual here, and that the People reserved the right to argue under a variety of theories, such as that Isnora set in motion a chain of events that ended in Oliver’s shooting, and both men could be found guilty by acting alone.

Ricco countered that it would violate due process for the People to change theories at this late date and asked, regarding that causation theory, where one would draw the line at who set what in motion: was it when the car hit Isnora that the events were set in motion, when Isnora put on his badge that night, Ricco queried. One could argue, the events culminating in the shooting actually began when the team decided to try to make one last arrest at Kalua that night.

The acting in concert issue interested me though. Even theoretically, notwithstanding the specific facts of this case (ie: Isnora’s witnessing the fight between the Bell group and Coicou before the shooting, Isnora’s thinking Guzman was reaching for a gun and Bell was trying to run him over with the car), but just theoretically, are police acting in the line of duty, who end up killing or seriously injuring innocent people, akin to a gang involved in illegal activity doing the same? Would it deter police from properly doing their jobs to hold them so accountable?

Anyway, Justice Cooperman, as expected, denied the motion to dismiss. That means, as a matter of law, he held that the charges were sufficient to proceed to the finder of fact — here, himself — to determine whether as a matter of fact, Oliver, Isnora, and Cooper committed the crimes charged. Monday morning begins summations, and then Cooperman will likely take several days to deliberate, issuing his verdict probably late next week or the following week.