Sean Bell: The Fix Is In

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Black’s Law Dictionary defines collusion as “an agreement to defraud another or to do or obtain something forbidden by law.�

A prosecutor is authorized to initiate a criminal prosecution to vindicate a harm sustained by the public and not a particular victim. If a trial fails to subject a criminal defendant to possible incarceration, the accused, playing with house money, will benefit from double jeopardy. The three indicted cops in People v. Oliver, et. al., are looking forward to a criminal trial. This trial will be worse than money laundering.

The Anglo-American legal system is adversarial in nature. There must be a genuine dispute between the parties. These parties must act in a hostile fashion toward each other, and the dispute must be presented to an independent decision-maker. There must be no usurpation of judicial authority.

When any of these elements are absent, the state has a responsibility to remove the criminal prosecution from the local authority. This case requires more than a change of venue. There must be a change of sovereignty. Interestingly, civil rights pacifists are calling for a maintenance of the status quo.

NY1 televised the arraignment in People v. Oliver, et. al., involving an eight-count indictment as an exception to Civil Rights Law §52, which prohibits the televising “of proceedings, in which the testimony of witnesses by subpoena or other compulsory process is or may be taken� in a state court. This allowed the prosecutor’s office and the defense lawyers to do their thing in plain view.

An arraignment falls outside of this definition, but a bench trial falls within this statutory prohibition, and it will not be televised to the public. The public’s right to know is left to the Fourth Estate. This means that the public will never know.
An arraignment sets the stage for the entire criminal prosecution. People v. Oliver, et. al. was decided, in toto, on March 19. A judge made critical legal decisions that will impact the entire trial. The Black community has already suffered irreparable harm.

Our revered ancestor, Justice Bruce Wright, was a threat to the prison-industrial complex. His initial decisions in criminal prosecutions kept countless innocent people out of prison. He incurred the wrath of Mayor Ed Koch and the PBA. The criminal justice system eventually separated him from his gavel and gave him a rubber stamp.

A defendant enters a plea to the accusatory instrument. In an adversarial system, the prosecutor invariably overcharges a defendant. When the prosecutor undercharges a defendant, it means that the defendant will walk. The accusatory instrument is the first opportunity for a prosecutor to put the squeeze on the defendant. In the case of these three cops, it is a hug.

A bail application in New York must be decided by a judge who must first make an inquiry under CPL §510.30. Case law requires that a judge, who grants bail without making this inquiry, can be removed from office. A collusive agreement supplanted a judicial determination in People v. Oliver, et. al. This is a subject for the Commission on Judicial Conduct.

In other words, the prosecutor and the defense entered into a collusive agreement. Detectives Michael Oliver and Gescard Isnora were allowed to post $250,000 bail, pursuant to a collusive agreement. Judge Randall Eng allowed the prosecutor and the defense to exercise judicial authority to release Oliver and Isnora pending the trial. This is impermissible under the law.

Judge Eng only ruled that Detective Marc Cooper could be released on his own recognizance for a misdemeanor. It is only a misdemeanor to shoot at a victim four times. Of course, the shooter should be acting under color of law and the target is a person of African ancestry.

The indicted cops have no restraints pending the trial. They still possess their passports. Given the unconstitutional police response in Queens after the shooting, there should have been the issuance of temporary orders of protection under CPL §510.30. These cops should also be tested for possible drug use and alcohol abuse. No judicial order exists regarding the possession of firearms.

The absence of any conditions on bail suggests that the prosecutor’s office believes in the actual innocence of the cops. This runs counter to an adversarial system of justice. A demand must be made for the illegal bail to be revoked as amounting to a usurpation of judicial authority.

Judges are supposed to be randomly selected to hear a criminal case. Since this is an important stage in the criminal process, it should be of no surprise that hanky-panky, sometimes, has preceded a judicial selection. There should be safeguards.

In People v. Oliver, et. al, Judge Eng pulled the name of Justice Arthur Cooperman out of the drum. I would have felt comfortable if someone had been permitted to inspect the drum. Judge-shopping can affect the outcome of a case.

Questions have already arisen about Justice Cooperman, who has been described in the court of public opinion in terms such as pro-police and “loose cannon.� I suspect that the indicted cops are pleased with this judicial assignment. It will permit Judge Cooperman to decide the facts and the law in a bench trial.

Usually, the defense works for the prosecution. This was asserted in The American Lawyer on the front cover of its February 2005 issue: “Whose side is he on? In the new era, defense lawyers have become deputy prosecutors.�

This is why New York has stopped me from practicing law. I refused to become a deputy prosecutor in People v. Sharpton, a 67-count indictment. Black people must learn that when the name of a descendant of enslaved Africans appears on an indictment, it is a declaration of war.

On March 19, 55 years ago, a retired, white cop, Stanley LeBensky, went into a Yonkers bar to investigate why the bartender had served beer to Blacks. Dissatisfied with the answer, he went outside and shot at four Blacks causing the deaths of James and Wyatt Blacknall.

They were unarmed. The judge refused to hear evidence from the medical examiner and a ballistics expert. I can only imagine that the jury instructions sounded like Dred Scott. The jury found both unprovoked shootings justifiable.
While Black selected officials, leading Blacks and civil rights pacifists were serenading Mayor Michael Bloomberg, Michael Palladino, head of the Detectives’ Endowment Association, was plotting a major powwow with Queens County District Attorney Richard Brown. This is an appearance of impropriety.

“Our� leaders, on the other hand, are always chasing cameras even if it means knocking on the wrong door, talking to the wrong people and asking the wrong questions. These leaders should have been meeting with Brown and imposing lawful conditions on the investigation.

Anyone who encourages the community to attend any legal proceedings in People v. Oliver, et. al. fails to understand the law or is acting in concert with the political establishment. When injustice is running amuck, someone has to seek injunctive relief. It is insane to ask Blacks to become cheerleaders at the venue of a judicial cover-up.

Once the prosecution and the defense entered into a collusive agreement, the cops now want to get the indictment to trial post haste. The operative word is double jeopardy. Once double jeopardy attaches, an indicted cop can put on his dancing shoes. Thus, the Black community must play defense. We are in sudden death.

The community’s strategy has to take it strong to the hoop—in the parlance of basketball.

The Queen’s district attorney’s office has already disqualified itself. Despite five fouls, it is still in the game. Civil rights pacifists, leading Blacks and Black selected officials must collect the courage to demand that the “steamroller�—Gov Eliot Spitzer—do his job. A special prosecutor must, immediately, substitute for Queens District Attorney Richard Brown. He has fouled out.

There will be a remembrance of the assassination of Dr. Martin L. King, Jr. and the death of Cong. Adam Clayton Powell, Jr. at UAM’s weekly forum on Wednesday, April 4, at 7:30 p.m. at the Elks Plaza, 1068 Fulton Street (near Classon Avenue) in Brooklyn. Take the “C� train to Franklin Avenue.

See: “The Real Story of Dred Scott� and “Negroes with Guns: Robert F. Williams and Mabel R. Williams�—this is a must-read to understand Tawana Brawley and why I refuse to join others in raising the white flag—at


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