Federal judge Upholds Civil Rights Charge Against Cop

Federal judge upholds civil rights charge against Yonkers cop
The Journal News by Jorge Fitz-Gibbon - April 17, 2009

YONKERS, NY - A federal judge yesterday refused to dismiss an indictment against a city officer accused of body-slamming a 44-year-old woman - even if prosecutors sped up a video of the incident, as defense lawyers claim. U.S. District Judge Kenneth Karas also denied a request by lawyers for accused Officer Wayne Simoes asking that the judge privately review grand jury records to determine if prosecutors were misleading in their presentation. "Even if I were to review the transcripts and decide that I would not have returned a true bill (on an indictment), that is not enough," Karas said during proceedings in U.S. District Court in White Plains. He said prosecutors had other evidence to sustain their indictment, including eyewitness accounts and medical records that show Irma Marquez suffered a broken jaw and other injuries in the March 3, 2007, encounter with police at La Fonda Restaurant in Yonkers.

Simoes, 39, was indicted by a federal grand jury in August. He was charged with violating Marquez's civil rights. Marquez has also filed a $11.3 million civil lawsuit against Simoes and Yonkers. But defense attorney Andrew Quinn claimed that federal prosecutors had more than doubled the speed of a surveillance video from the restaurant that appears to show Marquez being thrown to the ground by Simoes following an earlier fracas at the eatery. Quinn said that the alleged alteration made the video - which he says the grand jury and several witnesses who testified to the panel were shown - inaccurate and "unnatural." He said that a video specialist he hired determined that the video was 208 percent faster than normal. "A grand jury is going to rely very, very heavily on what they see with their eyes," Quinn said. Assistant U.S. Attorney Ann Skotko would not say if the video disc was altered, citing grand jury secrecy statutes. But, she said, there was ample other evidence. "The defense is aware of an abundance of evidence," Skotko told Karas. "It's not our burden to confirm nor deny."

Yonkers police responded to La Fonda on reports of a fight. They were tending to an acquaintance of Marquez's when she approached the officers, prompting the encounter with Simoes. Yonkers police charged Marquez with obstructing governmental administration and disorderly conduct. She was acquitted in May and filed her civil lawsuit just weeks later. Simoes was arrested on a federal criminal complaint in June and indicted Aug. 19. Quinn, Simoes' attorney, sought to have that indictment thrown out yesterday. "Anytime there's a video in a case, I think the jury - and you can ask any lawyer - will rely very, very heavily on what they see on TV," Quinn said. However, Quinn said he did not expect the speed of the video to be an issue at Simoes' upcoming trial, suggesting that prosecutors would now show it at normal speed for the trial jury. "We respect the judge's decision," he said. "I don't think that this is going to be an issue at trial," he added. That was strictly a pre-trial issue." Karas scheduled the start of the trial for May 11, when jury selection is set to begin in the case. jfitzgib@LoHud.com