Newsday
February 26, 2010

A Tale of the Tat Colors Mineo Trial’s Outcome

3 Cops Acquitted of Sodomy

By ARI PAUL

A cop charged with sodomizing a marijuana suspect in a Brooklyn subway station and two fellow officers accused of covering up the crime were acquitted Feb. 22 by a Brooklyn Supreme Court jury, disregarding the testimony of another officer that he saw Officer Richard Kern jab his baton into the buttocks of tattoo artist Michael Mineo.

   
 
The Chief-Leader/Michel Friang
 

THE HOME STRETCH IN A LONG TRIAL: Michael Mineo (right) listens to the defense’s closing arguments Feb. 15. The next day Brooklyn Assistant District Attorney Charles Guria maintained that witnesses who testified during the trial corroborated Mr. Mineo’s accusation that Police Officer Richard Kern sodomized him with an asp in October 2008. Jurors, however, acquitted Mr. Kern and two cops accused of covering up his actions.

Conflicting medical evidence about the extent of Mr. Mineo’s injuries and whether they could have some other cause apparently played a role in the verdict.

PBA Cites Past Criminal Record

Patrolmen’s Benevolent Association President Patrick J. Lynch said in a statement, “This jury weighed the lack of physical evidence, the lack of injury and the lack of motive in this case against the credibility of a known criminal opportunist and cleared these three dedicated Police Officers of any wrongdoing...We appreciate the courage the jury showed in not prejuding this case and for deciding it based upon the merits.”

Mr. Mineo has an inked torso that served as a mural for lawyers to choose characters from for their narratives to the jury in the most highprofile case of alleged police brutality since the the fatal shooting of Sean Bell in 2006.

Mr. Mineo didn’t choose his tattoo of an angel to represent his true self. Admitting to his past as a gang member and a thief, but landing in the courtroom as a victim rather than a defendant, he implicitly likened himself instead to his image of a cat: a little mischievous, but at the end of the day, harmless and affable. The defense attorneys chose a different image affixed to Mr. Mineo’s exterior: a chameleon smoking a joint.

Fellow Cops At Odds

Officer Kern had faced 25 years in jail on allegations that he had sodomized him with his asp in the Prospect Park subway station in October of 2008, while Officers Alex Cruz and Andrew Morales faced four years for allegedly preventing a probe of what occurred by giving Mr. Mineo, who they had apprehended for smoking marijuana, a summons rather making an arrest even though he had an outstanding warrant.

   
The Chief-Leader/Michel Friang
 

DO YOU TRUST HIM?: Defense attorney John Patten painted Michael Mineo as a scam artist and an unreliable person, pointing to his past as a thief and his admitted use of marijuana, saying that he faked injuries in order to reach a multi-million dollar settlement with the city. ‘Would you go to the bank with this man’s statements?’ he asked the jury.

 

The prosecution’s case relied on the testimony of several witnesses, most notably two other cops. Transit Officer Kevin Maloney said that he saw Mr. Kern jab his asp into Mr. Mineo’s rear end, while Officer Noel Jugraj said he heard Mr. Mineo cry out that he had been “violated” and that another officer taunted him, saying, “You liked it.”

Defense attorneys tried to discredit their testimony, noting that Mr. Maloney never saw the asp penetrate Mr. Mineo, and that the cry of being “violated” was too vague to mean he was attacked; for example, they argued, this could have been Mr. Mineo saying that the arrest would result in him “violating” his parole. The lawyers, brought in by the PBA, also questioned the physical evidence, saying that even though Mr. Mineo’s DNA was found on Officer Kern’s asp, it could have been extracted from any kind of cell, while the prosecution claimed it had to have come from his blood. Defense lawyers also argued that the square hole in Mr. Mineo’s boxer shorts couldn’t have been caused by the rounded edge of the asp.

A Victim or a Faker?

It came down to the Brooklyn District Attorney’s Office, admitting that Mr. Mineo had made mistakes in his life, insisting he was the victim of excessive force by police, while the defense insinuated that Mr. Mineo inflicted the rectal tearing with his fingernail, accused him of devising a grand scheme for a civil suit that would force the city to settle out of court for millions of dollars in damages.

John Patten, Mr. Kern’s attorney, told jurors in his summation Feb. 16 that Mr. Mineo’s account of what happened provided plenty of reasonable doubt. Videotape of Mr. Mineo shows him walked upright after the incident took place, although subsequent footage shows him leaning on a friend.

He noted that Mr. Mineo claimed he had no identification when he was arrested, although one frame shows what appears to be Mr. Kern examination a public benefits card. Mr. Patten added that no witness had testified to seeing Mr. Mineo’s pants being pulled down.

But he went a step further, remind- ing the jury that Mr. Mineo had admitted to stealing a friend’s credit card and was an avid marijuana smoker.

“He’s still scamming,” Mr. Patten said. “They have an expectation of big bucks.”

He asked the jury, “Would you go to the bank with this man’s statements?”

DA Cites Medical Evidence

In his closing argument Feb. 17, Brooklyn Assistant DA Charles Guria rejected the defense’s argument, saying that a doctor testified that Mr. Mineo had a spike in white blood cells, indicating that trauma had taken place, rather than there being a pre-existing infection as the defense had argued. Mr. Guria argued that the video of Mr. Mineo walking upright was misleading, because it was time-elapsed, in addition to the fact that he is seen leaning on a friend moments later.

“It’s not going to show you Michael Mineo’s true gait,” he told the jury.

Mr. Mineo, sometimes dressed in baggy clothes and wearing oversized glasses, laughed with chewing gum in his mouth at the defense attorneys’ remarks, and at one point while under cross-examination ridiculed them for asking “dumb-ass questions.” (Justice Alan Marrus allowed the comment on the record, but noted that henceforth he would be the one deciding what comments were “dumb-ass.”)

Debate What Cop Saw

Officer Maloney also became a central figure as the key prosecution witness. Mr. Guria portrayed him as a brave man in a difficult position, torn between telling the truth and sticking by a fellow cop, while defense attorneys noted that he only saw the asp on Mr. Mineo’s buttocks and not going inside his anus. Mr. Patten attempted to have his testimony rejected in closing arguments, noting that the details of the alleged crime were mostly spoken by the attorney in his questions, rather than by Mr. Maloney himself, but Justice Marrus rebuffed him, arguing that he had not objected to this during the actually questioning.

The defense attorneys had their memorable moments. Stuart London, representing Officer Morales, began a day of questioning by asking Mr. Mineo if he had gotten high before coming to court, prompting an outcry from the prosecution. Both Mr. Patten and Richard Murray, representing Officer Cruz, gave passionate closing arguments, as Mr. Guria lobbed numerous objections to their accusations that the prosecution was intentionally misleading the jury, many of which were sustained. Justice Marrus admonished Mr. Patten for casting doubt on Mr. Mineo’s boxer shorts—a size 38-40—by asking the jury how many of them wore underwear three times larger than would normally fit their bodies.

On Feb. 19, Justice Marrus dismissed a female juror who disclosed that she had spoken to others regarding news reports about past allegations of excessive force by Officer Kern. She was replaced by the last remaining alternate juror, a male Traffic Enforcement Agent. The charges against Mr. Kern were deemed unsubstantiated by the Civilian Complaint Review Board, but the city paid $50,000 to settle a civil suit arising from them.