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Expert: Defense may have upper hand in Bell trial

BY ANTHONY M. DESTEFANO | anthony.destefano@newsday.com

March 10, 2008

Murray Richman is considered one of the deans of the criminal defense bar in New York.

With nearly 45 years' experience trying and handling cases, Richman, 70, thought there was strong evidence of guilt against the detectives accused in the Sean Bell shooting -- at least until their trial started two weeks ago.

Now, he isn't so sure.

Richman is among a number of defense attorneys contacted by Newsday -- none of whom have any connection to the case -- who believe that so far the charges against the three cops are facing some serious headwind. The trial resumes Monday in Queens State Supreme Court.

"The early impression thus far, to my satisfaction, they have not made a case beyond a reasonable doubt," said Richman, after court adjourned last week. Richman was commenting in particular about the most serious first degree manslaughter charge lodged against Detectives Michael Oliver, 36, and Gescard Isnora, 29. They are also accused of assault. Det. Marc Cooper, 40, faces misdemeanor reckless endangerment charges.

Bell, 23, was killed and his friends Joseph Guzman and Trent Benefield wounded on Nov. 25, 2006 in a 50-shot fusillade after they partied at the Kalua Cabaret. Richman and the other attorneys stressed that there was still more evidence to come for the prosecution and they could change their minds. But all agreed that witnesses called by the Queens district attorney's office so far seemed to bolster the police officers' self-defense argument.

"The prosecution is putting everything out there and what appears to be happening is that witnesses are, at least in part, supporting the defense case," said attorney James Kousouros, of Kew Gardens, who has attended some of the trial.

"The witnesses were making it clear there was a perceived danger, that there was more than ample basis to think weapons were possessed during context of a heated argument," said Kousouros.

Witnesses testified that Bell and friends argued with a man in an SUV outside the Kalua who acted like he had a gun. Det. Hispolito Sanchez testified he told Isnora about a possible weapon and about Guzman yelling out "Yo, go get my gun." No gun was ever found on Bell or his friends.

If the cops thought they risked being fired upon, that belief would undercut the top manslaughter charge because the police action would be seen as justified, said former federal prosecutor Steven K. Frankel. Judge Arthur Cooperman is hearing the case without a jury.

"I would think [first degree manslaughter] is out; I don't think the judge will show intent on the part of any officer to cause Sean Bell serious physical injury," which is a necessary element of the crime, said former state prosecutor and defense attorney James DiPietro of Brooklyn.

DiPietro thinks the evidence so far shows that the police officers' conscious objective that night wasn't to go out and cause serious physical harm, but rather to defend themselves. The prosecution must disprove self defense -- or justification -- beyond a reasonable doubt and DiPietro doesn't think that has been done yet. If Cooperman finds the officers were justified in their actions, the defendants would be acquitted of all charges, said DiPietro.

Some media reports stated that Bell's family, including his fiance Nicole Paultre Bell, were displeased with prosecutors. But lawyers Sanford Rubenstein and Michael Hardy, who represent Paultre Bell, Guzman and Benefield, said that wasn't so.

"Our clients have confidence in the prosecutors and understand all of the evidence is not in yet," said Rubenstein.

Hardy said that prosecutors had to call Sanchez even though he has a sense of loyalty to old police colleagues. But he thought evidence supporting the first degree manslaughter charge was still strong.

Attorneys for Oliver, Cooper and Isnora declined comment Friday.

Through a spokesman, Queens District Attorney Richard Brown also declined comment.