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Lawyers well-steeped in civil suits by police-shooting victims are raising eyebrows over reports that New Jersey might pay $10 million to the men shot by troopers when their van was stopped on the New Jersey Turnpike in 1998. “It sounds awfully high,” says a former state deputy attorney general involved in such cases, in light of the damages and the bar against plaintiffs receiving punitive damage awards against a public entity. A criminal defense lawyer is more blunt. “That’s outrageous,” he says, noting that John Hogan and James Kenna, the state troopers involved in the April 1998 shooting, have had their criminal indictments in the shooting dismissed. On Nov. 2, Superior Court Judge Andrew Smithson threw out indictments charging the pair with aggravated assault and Kenna with attempted murder. Attempted murder counts against Hogan were dropped earlier at the state’s request. The potential $10 million settlement would not be finalized and paid until the end of the criminal case against the troopers, according to one attorney familiar with the case. New York attorney Peter Neufeld earlier this month said, “Nothing has been wrapped up, and discovery is continuing,” although he did not deny that a $10 million offer was being negotiated. In an article published on Nov. 11 outlining the $10 million payout, The Star-Ledger reported that the plaintiffs’ side is pushing for a provision allowing their clients to move for more money at a later date. The newspaper also reported that the state has been negotiating for a possible global settlement, covering all criminal as well as civil matters. Roger Shatzkin, a spokesman for the state Attorney General’s Office, says there will be no comment on the civil case. Hogan and Kenna face separate charges brought by another grand jury, for allegedly falsifying their reports in an effort to cover up racial profiling. The state charges that the pair was primarily stopping minority motorists and engaging in racial profiling when they pulled over the van in the spring of 1998. It was the van shooting case that propelled racial profiling to the front pages. After the van was stopped along the turnpike shoulder, the driver, Keshon Moore, put it in reverse and, according to his testimony, most probably hit the accelerator, causing the van to go backward and strike Hogan. Moore maintains, though, that he made a mistake. He was nervous because he had no valid driver’s license, so he moved backward accidentally by fumbling nervously to shift the gear into park. Kenna opened fire, and all told, 11 shots were pumped into the van, seriously wounding passengers Danny Reyes and LeRoy Grant, who still have bullets in their bodies, while wounding Rayshawn Brown less seriously. Moore was not hit. In his decision dismissing the indictment, Smithson found that the prosecutors denied the troopers due process by manipulating the grand jury, in part for “political expediency” coming from the top, a presumed reference to former Attorney General Peter Verniero. At the time, racial profiling had emerged as a hot state issue and Verniero was fighting to gain confirmation to the state Supreme Court. “This is being driven by politics, absolutely,” says Philip Elberg of Newark’s Medvin & Elberg, a firm that has handled police-shooting cases for plaintiffs. GOVERNMENTS NORMALLY PAY LESS A random sampling of seven high-profile civil cases in the state involving complaints against police officers accused of shooting suspects without justification seems to bear out the reaction of the lawyers, one of whom assumes the state “is paying to get rid of this case.” The attorneys wished not to be identified. In all the samples, the officers were white, while those shot were black or Hispanic, as is the case with the 1998 turnpike incident. In the case involving another van shootout, the June 1991 shooting by Newark and Hillside police of six black teen-agers in a stolen van following a chase, the municipalities settled all six suits for a total of $1.1 million, including attorneys’ fees. Families of the two teen-agers who were killed accepted settlements of $330,000 and $290,000. The parents of Phillip Pannell, the 16-year-old youth killed by Teaneck Police Officer Gary Spath in 1990, settled their civil action for $195,000 in 1994. The family of another 16-year-old, Lawrence Meyer, shot dead by a Paterson housing officer in 1995, agreed to an $80,000 settlement in 1998. In the civil suit over the 1991 shooting death of Shaun Potts by New Brunswick Police Sgt. Zane Grey, Potts’ family received a structured settlement valued at about $125,000 in 1993. In the 1996 shooting death of 39-year-old prostitute Carolyn Adams by New Brunswick Police Officer James Consalvo, her family received nothing when the case settled last month. However, the city agreed to establish an outreach program for prostitutes, including education, medical care, child care and career counseling. The amount of the cost to the city was not disclosed. Relatives of Maximino Cintron, who sued Jersey City after his fatal beating by Jersey City Officer John Chiusolo during a 1991 melee that was triggered when Chiusolo issued Cintron a summons, also received nothing. Two lawyers involved in the case said Cintron’s lawyers dropped the action. The plaintiff’s attorney could not be reached. In another case involving Chiusolo, the 1995 fatal beating of Julio Tarquino during a brawl at a gas station, the civil case has not been settled in six and a half years. In each of those cases the suspects shot were involved in a crime, were running from the police, were struggling with an officer or had a criminal history. By contrast, the four men in the van pulled over by Hogan and Kenna were stopped only for speeding, and were not suspected of anything else. Moreover, the complaints filed by the four men allege a violation of 42 U.S.C. 1983, charging that the troopers under the color of state law violated their civil and constitutional rights. Such complaints, if successful, usually carry higher verdicts or settlements than a simple wrongful death suit, like some of the cases in the random sample. Those settlements are often higher for a second reason; 42 U.S.C. 1985 provides for the payment of legal fees by the defendant, in this case, the state. In addition, the four men claimed to have bright futures, including possible careers as college and later as professional basketball players, a factor that is considered in valuating such cases. RUSHING TO CIVIL JUDGMENT? On the other hand, in almost all police-shooting cases, the civil case is not resolved until the criminal case against the officers is over. In fact, the civil suit is often stayed, pending the outcome of the criminal case, to protect the rights of the defendant police officers. But in the trooper van shooting case, Mercer County Superior Court Judge Paulette Sapp-Peterson declined to stay the civil action, and discovery has been proceeding. The lag in time between the disposition of the criminal case and the subsequent settlement of the civil case is due in part to the wait for the outcome of the criminal case. Normally, a guilty plea or criminal conviction on the part of the shooting officers enhances the value of any civil settlement, while an acquittal, a grand jury no-bill, or a dismissal lessens the civil case’s value. In the criminal cases of Phillip Pannell, Shaun Potts, Lawrence Meyer and Carolyn Adams, the police officers were acquitted of any wrongdoing by grand juries. In the 1991 van shooting of the six teen-agers on the border of Newark and Hillside, four officers were cleared by a grand jury. However, Newark Officer Marvin Carpenter was indicted on a misconduct charge that accused him of lying about firing his gun. But he was acquitted at a 1993 trial. Settlement talks between the plaintiff and Jersey City in the Tarquino case are pending, but close to resolution, says plaintiffs’ lawyer Shelley Stangler, a Springfield sole practitioner. Officer Chiusolo was convicted in December 1998 of misconduct, aggravated assault and possession of a weapon for unlawful purposes, and was sentenced to nine years in prison. The jury was hung on the most serious charge of manslaughter. In the other case involving Chiusolo, a grand jury cleared the Jersey City officer in the death of Maximino Cintron. But in all of these cases, the settlements came long after the disposition of the criminal charges. The fastest settlement, involving the 1991 van-shooting suit against Newark and Hillside, was reached 14 months after the trial of the lone officer charged. The slowest settlement, on the complaint filed by the sister of Carolyn Adams against New Brunswick for the 1996 fatal shooting, occurred just last month, almost four years after Officer Consalvo was cleared by a grand jury. And in the suit in the death of Tarquino, no settlement has been reached almost two years after Officer Chiusolo’s conviction. The average time of settlement of the five examples is almost two-and-a-half years after final adjudication of the criminal probe. But in the current turnpike shooting case, the criminal case is nowhere near being over. After Smithson’s dismissal of the shooting indictment, Attorney General John Farmer Jr. asked federal prosecutors to investigate the case for criminal civil rights violations, and U.S. Attorney Robert Cleary has agreed to do so. Meanwhile, Farmer is moving to appeal Smithson’s dismissal order. Smithson also stayed the falsification of records case against Hogan and Kenna.

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