SDNY COURTHOUSE, August 29 – At the Bellevue homeless shelter on Marcy 6, 2017 the supervising police sergeant Cordell Fitts ended up punching and kicking a homeless man 11 times.
On August 29 a jury founded Fitts not guilty on both counts after a trial in which the victim Tyriek Gladney did not testify or appear.
After the verdict Inner City Press watched as Fitts wept openly in the elevator while his lawyers accepted congratulations. Will this verdict lead to more beat-downs of the homeless? Will more defendants brave jury trials?
While the trial was conducted transparently by SDNY Judge Ronnie Abrams, a Press request to be informed when the jury came back was still not met, an hour after the verdict which Inner City Press happened on only by returning from a terrorism case in 500 Pearl Street to 40 Foley for another case - in the lobby, a transparent Federal Defender said, not without a smile, Not guilty. There's got to be a better way - Inner City Press hopes to have more on this.
Assistant US Attorney Alex Rossmiller on August 26 told a jury presided over by U.S. District Court for the Southern District of New York Judge Ronnie Abrams. Then, Rossmiller said, Fitts falsified a report to obstruct a federal investigation into this use of force.
The closing arguments were on the morning of August 29 with teh courtroom filled with Federal Defenders and the Assistant US Attorneys from such prosecutions as Norman Seabrook and the NCAA college basketball bribery scandals of the coaches, Merl Code, Christian Dawkins and Jim Gatto.
Just outside the courtroom an attendee mused to Inner City Press that the AUSA like the case because they feel on the side of the underdog, the homeless.
Inside the courtroom AUSA Jennifer A. Jude told the jury that Fitts had been "playing offense," not defense. When she mentioned "color of law," Federal Defense Julia Gatto said, "Objection!"
Judge Abrams told the jury that she would be the one instructing them on the applicable law. When it was Julia Gatto's turn she called Officer Feng's testimony bizarre and quickly flashed on the jurors' monitors that Tyriek Gladney refused an HIV test that night. But he refused all tests.
Gatto called Gladney a "sad but sick man" and asked the jury to remember crossing the street to get away from the homeless. It was hard not to note that the Federal Defenders on a daily basis are arguing, as is their job, for the release on bond of just such individuals.
The government's reply was by Rossmiller and he noted the victim-blaming throughout the trial by Federal Defenders. As the jury got the case, one wondered where is Tyriek Gladney? Watch this site.
On August 27 the report(s) were shown to the jury, along with the video. On August 28 Cordell Stewart himself took the stand, and was cross-examined. Watching again and again the video, Fitts ended up saying he was afraid of getting HIV, even as he admitted that he had not been bitten. He said there had been no time to re-assess his approach.
In the gallery with at least six Assistant US Attorneys, including one of the litigators in the Office's still incomplete prosecution of United Nations corruption. There was a similar number of Federal Defenders. One continued to wonder why. The summations will be on August 29.
Cordell Fitts, still working in law enforcement, has a publicly funded Federal Defenders team. On August 27, FD's Jonathan Marvinny cross examined DHS Officer Feng, who repeatedly said "I don't recall."
After the jury left, AUSA Rossmiller said that Feng's failure to remember means he can't really be impeached. The Federal Defenders indicated they might file a letter motion with Judge Abrams on the issue, and now they have:
"Dear Judge Abrams: By this letter we move the Court, pursuant to Rule 613(b), to permit the defense to introduce evidence of Officer Feng’s prior inconsistent statements through testimony from Agent Mason Posilkin. In his testimony today, Feng denied that he helped write the PSR (GX 2) with Fitts (e.g., Tr. 188:22–189:5), and denied that it was common for he and Fitts to collaborate on writing PSRs (e.g., Tr. 195:1–3). Then, when confronted with prior inconsistent statements to Agent Posilkin (and a fellow agent) during a meeting on October 22, 2018 (contained in 3508- 01), Feng either denied making or claimed he did recall making the following statements:
• that he “remembered the PSR from the incident and that [he] wrote it with Sergeant Fitts” (Tr. 197:25 – 198:5);
• that “Fitts helped write the report because he was called over by [Feng] to get involved” in the Bellevue incident (Tr. 199:1–4); and
• that “it was not uncommon for Fitts to write a report and for [Feng] to help him” (Tr. 199:12–15). “It is well settled that for two statements to be inconsistent, they ‘need not be diametrically opposed.’” United States v. Trzaska, 111 F.3d 1019, 1024 (2d Cir. 1997) (quoting United States v. Agajanian, 852 F.2d 56, 58 (2d Cir. 1988)). And if the witness denies making the prior inconsistent statement “or answers that he or she does not remember making the statement, counsel may resort to extrinsic proof as the next step.” 4 Weinstein’s Federal Evidence § 613.05[3][a]; see also 1 McCormick on Evidence § 34 (7th ed. 2016)."
The Federal Defenders were also directed to email not only the prosecutors but also Judge Abrams the names of any expert witness. Inner City Press will have more on that.
Judge Abrams on further reflection and citing case law including about cocaine on fish pallets in Brooklyn found that Gladney having bit a person after the incident was not idiosyncratic enough, or not as much of a signature M.O. as the cocaine on the pallets.
Two EMTs, both now firefighters, testified about the discrepancy between the report held by FDNY and that held by Bellevue, which added the diagnosis Schizophrenia added. Neither had Gladney saying he went off his meds, which Fitts had Feng put in his / their report.
After the government finishes on Wednesday and the defense the same day, closing statements are set for Thursday. And perhaps a jury verdict before the Labor Day weekend. But which way will it go? Two more Federal Defenders were in the gallery on August 27. And Inner City Press has requested the exhibits. Watch this sight.
Inner City Press' research finds that Cordell Fitts was a defendant in a case the City of New York settled, in which he was accused in in the same shelter on September 22, 2016 of abusing a homeless man after telling him "'he did not give a f***,' was not a doctor and ordered Plaintiff to do as he was told." US v. City of New York, Cordell Fitts, et al., 17-cv-4587 (Broderick), settled Aug. 21, 2018. More on Patreon here. We'll have more on this.
On August 16 there was a pre-trial hearing that Inner City Press attended and was surprised to find both that Fitts, employed by NYC Department of Homeless Services, has free Federal Defender lawyers and that these publicly funded lawyers said on that date - contrary to Marvinny's August 26 opening that they intend to "put on trial" the homeless recipient of these blows, including with what he told EMS and doctors.
While referred to as Victim-1 in early filings, on August 16 the parties repeatedly referred to the victim as Tyreek Gladley (phonetic). The Federal Defenders called him psychotic, or a paranoid schizophrenic; the government put up not much defense of him. He himself was not present.
Judge Abrams read out a number of erudite decisions on motions in limine, allowing in a video of the incident but also some "character evidence" about the victim. There will be only two alternates, for a trial projected to last one week. Jurors will be asked their views on mental illness. Apparently those opposing police brutality will be excluded. Inner City Press intends to be there as much as the calendaring of other SDNY cases permits. Watch this site.
Albert Jiminez-Gonzalez pled guilty in April to selling more 400 grams each of heroin, fentanyl and cocaine. His bail was revoked and he awaited sentencing, which took place on August 9. He had more than 20 friends and family in the courtroom of U.S. District Court for the Southern District of New York Judge Ronnie Abrams, and she noticed.
Jiminez-Gonzalez said his months in jail have taught him to be a better son and uncle and neighbor. He faced 57-71 months under the Sentencing Guidelines, a book that earlier on August 9 Circuit Judge Richard J. Sullivan demonstrated to drug defendants Tyquan Robinson before saying he may well do an upward departure from the 10 year mandatory minimum.
The difference appears to be Robinson's involvement with a gun, with a gang, and even his rap lyrics. Jiminez-Gonzalez, with a different vibe and different trajectory it seems, got 24 months and a full five years of Supervised Release. He asked to be designated to Fort Dix in New Jersey. Robinson, on the other hand, had his sentencing and probably upward departure postponed. Inner City Press will continue to cover these cases.
