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James J. Culleton doesn’t like to give away trying a case before a jury. Simply put, it is better to have 12 people making that decision rather than one judge, he said. But Culleton passed it up in defending one of three New York police officers prosecuted in the Sean Bell shooting case. He did it because he didn’t have a choice. Culleton, a former prosecutor in the Bronx District Attorney’s Office who’s been in private practice since 1985, said the Sean Bell case had triggered too much pretrial publicity. After celebrating at a Queens strip club in the early morning hours before his November 2006 wedding, Bell and his friends got into a confrontation with police. They were not armed but the police believed one in the group had a gun. Officers fired 50 shots, killing Bell and wounding Bell’s friends. Culleton, counsel for Detective Michael Oliver, an officer who fired 31 of the shots, said the publicity was intense. Bell’s family and bride-to-be are very likeable people who made very sympathetic public appearances after the incident, Culleton said. No venue change Defense lawyers filed a motion to change venue away from Queens — a familiar move for Culleton, who represented another police officer in a similar case that had a similar outcome, the 1999 police shooting of unarmed Amadou Diallo. New York v. Kenneth Boss, No. 1814-99 (Albany Co., N.Y., Sup. Ct.). “We didn’t think that in New York City, based on the publicity, that we could get a fair trial because of the sympathy factor. It would just overwhelm jurors,” Culleton said of the Bell case. But the motion was denied, leaving the lawyers with only one option: bench trial. After four weeks, Supreme Court Justice Arthur J. Cooperman acquitted the three officers of all the charges, from felony manslaughter to misdemeanor reckless endangerment, finding that the government failed to prove the shooting unjustified. New York v. Oliver, No. 07-00001 (Queens Co., N.Y., Sup. Ct.). A spokeswoman from the Queens District Attorney’s Office declined to comment. Key to winning the case was the defense focus on the credibility of the government witnesses, Bell’s friends injured in the incident, said Culleton, a partner at Culleton, Marinaccio & Foglia in White Plains, N.Y. He and co-lead counsel Anthony L. Ricco and Paul P. Martin strategized as a group on how to attack the witnesses, but planned their cross-examinations separately, Culleton said. “Everybody did their own thing.” Neither Ricco nor Martin could be reached for comment. The witnesses’ trial testimony contradicted their grand jury testimony as well as statements to prosecutors after the incident, Culleton said, providing plenty of impeachment material. One witness said at trial that a statement he made in a tape-recorded interview with police internal affairs officials hours after the incident was made up, he said. Their statements also did not match the scientific, forensic and ballistic evidence, the defense argued. “Their stories were designed to convict the police officers,” Culleton said. “Their credibility was, quite frankly, shattered, destroyed, whatever word you want to use.” Culleton said the defense attacked the reliability of evidence collected from the crime scene because “very shoddy” investigators failed to close off the area. With a courtroom style he described as “animated,” Culleton said he really enjoys cross-examinations. “I jump around in the courtroom. I am pacing all over the place,” he said. “I like to bust chops, so to speak.” Cross is all about pressuring a witness, “but you have to do it in a way to show respect to the court and respect to the witness,” said Culleton, who in more than 11 years at the Bronx DA’s office worked his way up to chief of the rackets bureau. Another key strategic decision in the case was determining whether the officers would testify at trial, Culleton said. The defense decided the officers would not testify at trial because there was no need for them to do so after the prosecutor read their grand jury testimony into the record. Culleton said the defendants had nothing to add to that testimony. “That was their side of the story,” he noted. “When you deal with police officer cases, for the most part you would put the police officer on the stand, especially in a shooting here where the defense is justification,” Culleton said. But in the Bell case, the grand jury testimony was sufficient, he said. “Their testimony was given at a time when they didn’t even know what the evidence would show,” he said. “In a normal case you probably wouldn’t even put your client in the grand jury. You just wouldn’t do it. All he has to say is one thing that doesn’t match and he is lying about everything.” Culleton’s other police officer clients have taken the witness stand. The officer in the Diallo case testified, as did former police deputy inspector Dennis Sindone, acquitted in 2002 in federal court on corruption charges, but fired after a 19-year career. Both of those cases were jury trials, Culleton noted.

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