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ALBANY, N.Y. � A notorious civil rights case, which has already made law in both federal and state court, came to trial Monday, with dozens of blacks hoping to put an end to racial profiling in New York state. The Court of Claims case of Brown v. State, 94540, is rooted in an incident on Sept. 4, 1992, when an elderly New Jersey woman staying at the home of a prominent family near Oneonta was accosted by a knife-wielding intruder as she slept. The woman awoke during the burglary and attempted rape, and a brief struggle ensued before the perpetrator fled. The victim, who was sleeping on her stomach in a dark room, never directly saw the burglar, but she did see his hand, hear his voice and witness his agility as he fled. Based on those observations, the woman was certain the assailant was a young black man. She also suspected that he had cut himself with his own knife, perhaps severely, and a trail of blood supported that suspicion. Police reacted swiftly and aggressively, first by obtaining the name and address of every black male attending the nearby State University College at Oneonta. They allegedly interrogated students in their dormitories, on the campus, in their off-campus apartments and on the street. Dozens of potential suspects were stopped, questioned, inspected for wounds and asked to provide an alibi. When that effort failed to yield a suspect, police expanded the dragnet citywide and for five days questioned every nonwhite man they could find in and around Oneonta, a city of 10,000 with a black population of about 300. For five straight days, black people walking the streets, driving their cars and attempting to enter or leave the city by bus were stopped and interrogated by police, according to court records. The incident attracted national scorn from civil rights leaders, and sparked a Ku Klux Klan recruiting drive in upstate New York. Gov. Mario Cuomo apologized profusely, as did then Attorney General Robert Abrams, Comptroller H. Carl McCall, officials at the college and the chancellor of the state university system. But the State Police maintain to this day that their actions were justified � and that insistence is at the core of the trial that began yesterday after 13 years of legal gymnastics. At issue ultimately is whether police, provided with a description of a suspect, are justified in targeting people who generally fit that description when the main, almost exclusive identifying factor is race. The case arrived at the Court of Claims after various journeys and sidetrips through several courts, and some landmarks in both federal and state tribunals. In 1996, the Court of Appeals used this case to, for the first time, recognize a state constitutional tort that could sustain money damages (see 89 NY2d 172). Four years later, it led to a sharply divided opinion of the Second Circuit U.S. Court of Appeals (221 F3d 329) that said police, “absent other evidence of discriminatory animus,” could act on the basis of the victim’s race-based description without violating the Equal Protection Clause. A petition for a rehearing en banc was denied, but prompted an extraordinary six separate concurrences or dissents. Shortly after the terrorist attacks of Sept. 11, 2001 put a different spin on racial profiling, the U.S. Supreme Court denied a certiorari petition. After the Appellate Division, Third Department, in May 2004 rejected the state’s collateral estoppel defense and cleared the way for the plaintiffs to seek damages under the state Constitution, the case finally landed before Court of Claims Judge Thomas McNamara for a nonjury trial. Yesterday, the 60 named plaintiffs � nearly all of them former college students who were stopped by police � had their first day in a trial court. The plaintiffs claim they were unconstitutionally subjected to police interrogations and forced into a guilty-until-proven-innocent posture by overzealous police relying on a policy of racial profiling. The state sharply disputes that racial profiling played any role, arguing that police did not target black men but instead focused on individuals who happened to be black and met the victim’s description of the would-be rapist � young, male, with a black accent and possibly nursing a flesh wound. “There was no city-wide sweep,” insisted Assistant Attorney General Michael Rizzo in his opening statement. “There was no racial profiling in any way, shape or form … No one in this case was questioned on the basis of race. They were questioned based on the wholly legitimate basis of the description by the victim.” Rizzo, who is defending the state along with Assistant Attorney General Belinda Wagner, said the investigation was a diligent effort using “valid investigatory techniques.” He said police looked to hospitals and drug stores in an attempt to find a young black man with a significant arm or hand wound. He said they turned their attention toward the college after a janitor there found a stash of bloody towels. Additionally, Rizzo said, the victim had attended an event at the college earlier on the evening of the attack � her host, with whom she was staying, was a member of the college foundation � and it was conceivable that she was followed by a would-be rapist. Scott Fein of Albany’s Whiteman Osterman & Hanna, the largest firm in town and the one that has dedicated 13 years of pro bono service to this case, told the judge that any way it is portrayed, police in Oneonta singled out blacks, and subjected hundreds of innocent men and woman to the indignity of a physical inspection solely because of the color of their skin. “Mr. Chandler deemed all blacks suspect, with an opportunity to exonerate themselves,” Fein said in his opening, referring to then State Police Senior Investigator H. Karl Chandler, who led the investigation. “They were suspects by virtue of their race.” Chandler was on center stage yesterday, enduring a lengthy direct examination by Fein’s partner, Joseph Stinson. The former detective admitted he had a “very limited description” of the assailant from the 76-year-old victim, and denied he was generally targeting blacks, insisting instead that he and the officers under his command were specifically searching for a young, black man with a seriously cut hand. But evidence indicates that at least some women and middle-aged men were also questioned. Chandler admitted that the victim’s bedding was analyzed, and that the subsequent report showed that the analysis was limited to a search for hairs of black people. He said it never occurred to him that the victim’s description of her attacker might be inaccurate. Chandler acknowledged that all of the officers involved were white. Some fireworks erupted when Stinson attempted to discredit Chandler in two ways. First, Stinson introduced a photograph of Chandler’s car with a license plate reading “CIVL WAR” and held in place with a State Troopers Association frame. Stinson indicated that the retired police officer was active in an online fantasy re-enactment of the Civil War. That led to an objection by Rizzo, and an exchange between the court and Stinson. “Are you telling me that I am to draw an inference that because a person is interested in the Civil War that he or she is a racist?” Judge McNamara asked, demanding an offer of proof. But he allowed Stinson to pursue the line of questioning under close scrutiny. Chandler said he has played the online game, which he described as a tactical test of military strategy, and at times has played as war secretary for the union and at times as war secretary for the confederacy. “Are you a racist?” Stinson bluntly asked the witness. “No,” responded Chandler. “Do you fabricate evidence?” inquired the claimants’ counsel. “No, absolutely not,” Chandler responded indignantly. Judge McNamara interceded. “Mr. Stinson, do you have a good faith basis for the questions you are asking?” he asked impatiently. Stinson responded by pulling out a 345-page 1997 report into evidence tampering at Troop C, where Chandler worked. The investigation leading to a final report by Special Prosecutor Nelson Roth uncovered widespread corruption and concluded that evidence was fabricated “on an almost routine basis” by Troop C officials from 1984 to 1992. Five troopers were convicted and authorities suggested tainted evidence had polluted more than 40 cases. Chandler was implicated in the Roth Report, although he had retired before it was released, with the author saying the detective was less than candid about his involvement. In the report, Roth said that if Chandler was not already retired, he would have called for his dismissal. The issue of Chandler’s potential involvement in the evidence tampering scandal arose yesterday in the context of the witness’ credibility. Stinson noted that Chandler’s report on the Oneonta sweep was written several weeks after police had come under heavy criticism for the manner in which the investigation was conducted, suggesting that the detective tempered his report to diffuse that criticism. The Roth Report suggests that Chandler altered his statements on the evidence-tampering scandal after it became clear that several of his co-workers were guilty. Trial resumes this morning before Judge McNamara. The case has been a cause for Whiteman Osterman & Hanna attorneys for more than a dozen years, and so far amounts to about $1.5 million in pro bono services, Fein said. “In 1992, when it was explained to the firm what had occurred, it was clear to us that a race-based street sweep was at once unlawful and corrosive,” Fein said outside of court. “It breaks the bonds that tie a community together when you segregate out one group and subject it to different standards. The minority community in Oneonta came to us, and asked us to intercede with the State Police to obtain a commitment that this would not re-occur. I met with the State Police and I assumed in the aftermath of the governor’s apology and the state comptroller’s apology and the chancellor’s apology, the State Police would be glad to do this. But the State Police maintain that this was an appropriate law enforcement tool.” Fein said the 60 named claimants are seeking vindication, not money damages. Although they are required to request monetary relief, the claimants will forgo financial damages in return for a comprehensive State Police policy on racial profiling, racial sensitivity training for law enforcement officials and the maintenance of annual statistics detailing incidents in which an investigation is based on racial profiles, Fein said. The lead claimant, Ricky Brown, who was a freshman at Oneonta College at the time of the incident, is a Boston College Law School graduate assisting Whiteman Osterman & Hanna. He works in insurance subrogation for a company in Milton, Mass. “The moral outcome we are seeking is that the police were wrong,” said Brown, who said the incident inspired him to attend law school. “They need to be more culturally sensitive. You can’t just stop people based on their race alone.” John Caher is a reporter with the New York Law Journal, a Recorder affiliate.

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