Westchester Guardian/The Court Report.

Thursday, October 2, 2008

The Court Report
By Richard Blassberg

A Great Judge Delivered A Courageous Decision;
And, Three Misguided Judges Have Nullified It

On September 24th, three Judges of the United States Second
Circuit Court of Appeals, Judges Pooler, Sotomeyer, and Restani,
Chief Judge of the United States Court of International Trade, sitting
by designation, reversed the April 3, 2007 decision of the late
United States District Court Judge Charles L. Brieant granting former
Westchester County Corrections Officer Paul Cote a Judgment
of Acquittal. We now reprint The Court Report that announced
Brieant’s decision, together with an updated Current Analysis.

Reprint of The Court Report entitled
“A Great Judge Delivers A Courageous Decision”,
originally published April 12, 2007

On Tuesday, April 3rd, United States Federal District Court Judge Charles L. Brieant af-firmed what seasoned court watchers have known about him for many years as he, once again, summoned the courage and the wisdom with which he has graced the Westchester Community for some thirty-six years, handing down a decision the like of which is all too seldom seen.

Paul Cote, former Westchester County Correction Officer, convicted by a jury on September 20, 2006, in Brieant’s Court, on a single-count indictment, charging violation of 18 U.S.C. Section 242, in the deprivation of Zoran Teodorovic’s right to liberty without due process of law, while acting under color of law. Mr. Cote, who had been tried and convicted of Assault in the Second Degree, in Westchester County Court, in July 2001, serving three months in jail, having granted the United States Attorney’s Office a waiver of the applicable five-year Statute of
Limitations, had been once again tried for the same transaction, exposed in every Constitutional sense to Double Jeopardy, and convicted.
Cote’s prior trial, and conviction were hopefully, truly unknown to the federal jury. Nevertheless, he was being tried by the federal government based on the same set of facts, six years after the occurrence, and was found guilty.

The incident, which took place at the Westchester County Jail October 10, 2000, involved a homeless, belligerent inmate, Zoran Teodorovic, a fellow correction officer, now Corrections Sergeant John Mark Reimer, and Cote. Despite the fact that the Defendant’s involvement did not occur until after Officer Reimer, responding to a punch in the face, had bearhugged the inmate, swinging him through a six-foot radius arc, and
slamming his head to the concrete floor of G-1 cellblock, causing massive cerebral injury, charges resulting from Teodorovic’s ultimate death, some 14 months later, were lodged against Cote, using Reimer as the chief Prosecution witness.

Charged with “striking, kicking, and stomping” the inmate, Cote had rushed to the aid of fellow officer Reimer, as per approved protocols and regulations. Reimer, however, had gone to DA Jeanine Pirro first, and, as so often has been the case, cut his deal with the Devil. At oral arguments
pursuant to Mr. Cote’s appeal of his conviction under Federal Rules 29(c) and 33, the issue of the relationship between federal prosecutors, and the Westchester County District Attorney’s Office, specifically former ADA Robert Neary, was brought up by Defense Counsel Bennett Epstein, drawing a response from Assistant United States Attorney Cynthia Dunne that her office merely monitored the State proceedings. Epstein
strongly suggested that there had been significant cooperation and choreography between the two Offices.

Under Rule 29, federal judges are granted the judge-ordered “judgment of acquittal” replacing the former “directed verdict,” previously returned by the jury under directions from the judge. Coming directly from the judge, in this case Judge Charles L. Brieant, a finding for the Defendant under
Rule 29 is an affirmative determination that the Prosecution had failed to carry its burden of proof.

Rule 33, on the other hand, gives a trial court considerable discretion to set aside a jury verdict, that it deems a “miscarriage of justice,” and order a new trial. The language of the federal rule shows sensitivity to the historic role of the jury, speaking of the need by judges to avoid “wholly usurping” the jury’s responsibility of resolving conflicting evidence, and assessing the credibility of witnesses. The rule speaks of the need to
find “exceptional circumstances” before a judge may “intrude upon the jury function.”

Having presided over the two week trial, Judge Brieant concluded: “The verdict was not fairly based on the evidence presented at trial, and was not in proper conformity with the Indictment. The Court also concludes, based on its direct observation of the entire trial, that the interests of Justice were not served by the verdict, and that if on appeal Defendant is deemed not entitled to a judgment of acquittal, in contrast to this Court’s
view, then he is at least entitled to a new trial.”

Judge Brieant further ruled: “The motion for a judgment of acquittal under Rule 29(c) is granted. The motion for a new trial under Rule 33 is conditionally granted if the judgment of acquittal is reversed. The judgment is stayed pending Appellate finality.”

Analysis:

The case brought by Assistant United States Attorneys Cynthia Dunne and Andrew Schilling against former Westchester Correction Of-ficer Paul Cote was not a good one. Based upon the confabulated testimony originally presented by former ADA Robert Neary in Westchester County Court, more than five years earlier, following the “deal with the Devil” struck by the person actually responsible for Zoran Teodorovic’s unfortunate death, John Mark Reimer, and Jeanine Pirro.

Given the extraordinary number of cases that were subject to extreme prosecutorial misconduct by the Office of the Westchester District
Attorney, for twelve years under Jeanine Pirro, and with recognition of the fact that the present District Attorney has shown no inclination to
rectify the injustices visited upon so many innocent persons suffering incarceration, and the long, difficult, and often unavailing, appeals process in State Courts, as evidenced recently in the Anthony DiSimone case, the presence of Judge Charles L. Brieant, a man of great wisdom, compassion,
and dedication, in the Federal Courthouse in White Plains, was truly an act of great kindness and thoughtfulness bestowed upon the People of Westchester by President Richard Milhous Nixon nearly thirty six years ago.

Current Analysis:


When Judge Charles L. Brieant overturned the conviction of former Westchester County Correction Officer Paul Cote on April 3, 2007, we were not surprised, knowing the character and fiber of the man. In fact, we had predicted that he might, based upon all that was observed in pre-trial
hearings and at the trial. The Government had presented a very weak case, certainly from the standpoint of any reasonbly intelligent observer.

They had taken a confabulated State case; a typical Pirro “Deal With The Devil", and decided, for the satisfaction of whatever vindictive agenda, they would breathe new life, new coercion, new authority, possessed only by “The Feds" into a very ugly, "whoever runs to the DA first" immunity deal, as though they had nothing better to do with judicial resources.

Judge Brieant had shown not only the intelligence and common sense to see through four bad Prosecution witnesses out of four, but also the intestinal fortitude to identify each in his corrupt, cowardly, self-serving mode of treachery and, unlike the three ‘Nail- Polished Ladies Of The Bench’ who failed to show him either the proper deference or respect in their recent decision, he was in the courtroom; and, he conducted
both the pre-trial hearings and the two-week trial.

Furthermore, he knew the jury as some of us who attended the trial did. He watched and understood their detachment, their coolness, their willingness to casually arrive at a verdict in under an hour; their general "whatever" attitude.

Perhaps Judges Pooler, Sotomeyer, and Restani couldn't handle the fact that Judge Brieant had the courage to reverse a jury conviction; to say, by legal process, to them, what this reporter uttered to the court officers upon hearing their verdict, "I thought you guys make sure that the jurors
have removed their heads from their butts before you let them in here."

Perhaps it was too much to expect of the distaffed tribunal to not only show the appropriate deference to Judge Brieant, but also to place stock in his instincts and ability to see, for what it truly was, the unholy alliance of three incentivized jailbird witnesses, and a rogue, overgrown, liar
like Sgt. John Mark Reimer, who would turn in his mother to save his own butt.

Reimer had spent 17 hours of rehearsal with federal prosecutors Dunne and Schilling. God knows they deserved each other; and still he couldn't get his lies straight. No matter, for this tribunal, his words and the mutually contradictory accounts of the three inmates, somehow, were the Synoptic Gospel.