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Federal case may be a longshot

BY ANTHONY M. DESTEFANO | Newsday Staff Writer

December 6, 2006

While federal officials said they are only monitoring developments in the fatal shooting of Sean Bell, new data indicate that making criminal cases against law enforcement officials such as cops is still a difficult task for the Brooklyn U.S. Attorneys Office, the office that would have jurisdiction if the case shifted to the FBI.

The probe into the police shooting of Bell and two friends on Nov. 25 outside the Kalua Cabaret in Jamaica is currently being handled by Queens District Attorney Richard Brown, who has promised a thorough and fair inquiry. As of Tuesday, the case hadn't been sent to the local grand jury where prosecutors would have to not only present evidence against the cops but also raise the issue of self-defense.

Tuesday attorneys for the wounded men signaled they would be waiting to see what happens to the Brown case before going to federal prosecutors.

"We're taking a wait-and-see attitude," said lawyer Sanford Rubenstein, who wouldn't speculate about what his next move would be if no state indictment comes. "Our clients are fully cooperating with the Queens district attorney in this case."

But federal prosecutors nationwide, including Brooklyn, find that making a criminal case against law enforcement officials for misconduct -- be they federal agents or local police -- is tough. Nationally, data show that 96 percent of civil rights cases are not prosecuted.

As reported in October by Newsday, Brooklyn federal prosecutors in fiscal 2005 declined to prosecute 75 percent of civil rights cases, be they complaints about police misconduct, racial violence or human trafficking, according to data compiled by the Department of Justice.

In recent weeks the data, compiled by the non-profit Transactional Records Access Clearinghouse, affiliated with Syracuse University, showed that Brooklyn federal prosecutors continued to take a tough look at complaints involving specific allegations of law enforcement misconduct. Statistics for the first 10 months of fiscal 2006 (October 2005 through July 2006) found the prosecutors declined to prosecute 91 percent of allegations involving "deprivation of rights under color of law," the statute that covers police and other law enforcement misconduct.

Though the data didn't readily show why the cases were declined, statistics for fiscal 2005 showed that weak or insufficient evidence and lack of evidence of criminal intent were key reasons for tossing the cases. An additional problem, said one federal prosecutor yesterday who didn't want to be named, was the standard of criminal intent required under the civil rights law. The standard was a high one for prosecutors to meet, said the official, who added that the issue of self defense in a police shooting could make a federal case harder to prove.

Still, while federal prosecutions of law enforcement aren't frequent, the cases that do go trial often lead to convictions. For instance Brooklyn federal investigators in fiscal year 2006 convicted 84 percent of the law enforcement defendants accused of civil rights violations. A spokesman for the Brooklyn U.S. attorneys office couldn't provide a list of such cases late yesterday, but noted that a number of law enforcement defendants, including "Mafia Cops" Louis Eppolito and Stephen Caracappa, had been convicted or charged this year for offenses committed while acting as public officials.

"Getting convictions in these kinds of cases isn't easy, but it is not impossible," said Rubenstein, noting how his former client Abner Louima was able to prevail in getting justice when police officers were convicted in Brooklyn federal court in connection with the attack on him in 1997.

"We proved in the Louima ... [case] that federal government can bring to justice police officers who have acted criminally."