History > 2008 > USA > Justice > States (II)

American Exception

Foreign Courts

Wary of U.S. Punitive Damages

March 26, 2008
The New York Times
By ADAM LIPTAK

In the late summer of 1985, Kurt Parrott, a 15-year-old who loved baseball and Pac-Man, was thrown from his motorcycle in Opelika, Ala. The buckle of his helmet failed, and he died when his bare head hit the pavement. Mr. Parrott’s mother sued the Italian company that made the helmet, and an Alabama court awarded her $1 million.

The company refused to pay. And last year, when lawyers for the Parrott family tried to collect in Italy, they were blocked by the Italian Supreme Court.

The court said that a peculiarity of American law — punitive damages — was so offensive to Italian notions of justice that it would not enforce the Alabama judgment.

Most of the rest of the world views the idea of punitive damages with alarm. As the Italian court explained, private lawsuits brought by injured people should have only one goal — compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.

Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators.

Some common-law countries do allow punitive damages, though in limited circumstances and modest amounts. In the United States, by contrast, enormous punitive awards are relatively common, although they are often reduced or eliminated on appeal. Last month, for instance, the United States Supreme Court heard arguments in the Exxon Valdez case, where a jury’s initial award of $5 billion was later reduced to $2.5 billion.

Still, such awards terrify foreign courts.

“The U.S. practice of permitting a lay jury to exercise largely discretionary judgment with limited constraints in awarding punitive damages is regarded almost universally outside the U.S. with a high degree of disfavor,” said Gary Born, an American lawyer who works in London.

Foreign lawyers and judges are quick to cite particularly large American awards. Julian Lew, a barrister in London, recalled a Mississippi court’s $400 million punitive award against a Canadian company in 1995 with scorn. “It did bring America into total and utter contempt around the world,” Mr. Lew said.

Yet there are signs that the gap between the United States and the rest of the world is narrowing, as American courts and legislatures start to limit punitive awards and other countries start to experiment with them.

Punitive damages have deep roots in American and English common law, but their nature has changed here over time. “Until well into the 19th century,” Justice John Paul Stevens of the Supreme Court wrote in 2001, “punitive damages frequently operated to compensate for intangible injuries” like pain and suffering or emotional distress.

These days, driven by the structure of the American civil justice system, entrepreneurial plaintiffs’ lawyers and the populism they embrace, punitive damages are used to send messages to large corporations, to fill gaps in regulation and to reward successful plaintiffs with multiples of what they have lost. Distinctive features of the American legal system — civil juries, class actions, contingency fees and the requirement that each side bear its own lawyers’ fees — all play a role in amplifying punitive damages.

Punitive damages are so embedded in the American legal system that the rationale for them is rarely explored. One of the best explanations came from a German Supreme Court decision in 1992, which said the concept had four main purposes: to punish the offender for “uncivilized conduct,” to deter the offender and others from doing similar things, to reward the plaintiff for enforcing the law and so improve “general law and order,” and to supplement inadequate compensatory damages.

The case decided by the German court, like the one involving Kurt Parrott, was an effort to enforce a judgment from an American court against a defendant who had no assets in this country and refused to pay. Ordinarily, it is a relatively routine matter to ask a foreign court to enforce an American court judgment. Not so when punitive damages are involved, even where the conduct in question is shocking.

The German case, for instance, involved sexual abuse. In 1985, a state court in Stockton, Calif., entered a $750,000 judgment, including $400,000 in punitive damages, against Eckhard Schmitz for abusing a 13-year-old boy. Mr. Schmitz would not pay, and he fled to Germany while he was appealing a 13-year criminal sentence for engaging in sex with other teenage boys.

But the German court nonetheless said that the dangers of allowing punitive awards outweighed the benefits. The plaintiff should not get a windfall, the court said, and should not be allowed to act as a “ ‘private public prosecutor’ infringing the German state’s monopoly on punishment with its associated safeguards.”

The German court did enforce the $350,000 compensatory award. The Italian court, by contrast, refused to enforce any of the $1 million award to Kurt Parrott’s mother because the Alabama judge had not said how much of it was for compensation and how much for punishment.

But “the tide may be about to change,” John Y. Gotanda, a law professor at Villanova, wrote last year in The Columbia Journal of Transnational Law. “Traditional hostility to American awards of such damages may be dissipating.”

That is partly a consequence of changes here. American courts and legislatures are experimenting with ways to limit punitive damages, often in response to lobbying and litigation from business groups that say huge punitive awards are arbitrary, unfair and hurt the American economy.

Five states — Louisiana, Massachusetts, Nebraska, New Hampshire and Washington — ban or severely limit punitive damages. Others restrict the amounts awarded. Some states, responding to the criticism that the awards are a windfall for the plaintiffs, require that a part be turned over to the states.

The United States Supreme Court has in the last decade or so started to impose its own limits. In 1996, it ruled that a $2 million punitive award in an Alabama consumer fraud case involving a $4,000 compensatory award was excessive, given that the harm was merely economic, far exceeded the maximum punishment the state could have imposed and was disproportionate to the compensatory award.

In 2003, the court said that the ratio between punitive and compensatory awards must typically be in the single digits to be constitutional. It struck down a $145 million punitive award in an insurance fraud case where the compensatory damages had been $1 million.

At the same time, courts in a few countries around the world are expanding the availability of punitive damages.

The Tribunal Supremo in Spain, for instance, enforced a $1.3 million punitive award in a Texas trademark and unfair competition case in 2001. The Supreme Court of South Australia in 2005 indicated that it would consider enforcing American punitive awards where they involved “brazen and fraudulent conduct.”

Perhaps most notably, the Canadian Supreme Court in 2003 upheld a $50,000 punitive award in a Florida land dispute, saying it “does not violate our principles of morality.”

Justice Louis LeBel explained, with an air of resignation, why this was so, saying there was nothing in the American approach that was inherently offensive to Canadian ideas of basic fairness.

“It is simply a different policy choice,” he wrote, “and it affords U.S. plaintiffs a level of protection of which they ought not necessarily to be deprived just because the defendant’s assets are here.”

Even in Germany, which flatly rejected an American punitive award in 1992, there are signs of change, said Franco Ferrari, a law professor at the University of Verona in Italy. “The traditional compensatory regime has been permeated by punitive elements,” he said.

In cases involving a fake interview with Princess Caroline of Monaco, intellectual property and employment discrimination, he said, German courts have started to award damages that seem to be meant to punish as well as compensate.

Kurt Parrott’s mother, Judy Glebosky, learned about the Italian Supreme Court’s decision from a reporter. Her lawyers had turned the matter over to an international collection agency and had not bothered to tell her that she had lost.

The case seemed simple to her.

“I bought Kurt a helmet that was supposed to be the best,” Ms. Glebosky said. “It did not perform, and I lost Kurt.”

Questions about punitive damages seemed academic to her, if not heartless.

“A million-dollar award is really nothing,” she said. “It’s really not enough to punish any large company in this day and age, and it certainly does not bring back Kurt.”

    Foreign Courts Wary of U.S. Punitive Damages, NYT, 26.3.2008, http://www.nytimes.com/2008/03/26/us/26punitive.html?hp

Guilty Verdict in Nixzmary Brown Case

March 18, 2008
The New York Times
By ANDY NEWMAN

A jury in Brooklyn acquitted Cesar Rodriguez, the stepfather of 7-year-old Nixzmary Brown, of second-degree murder Tuesday, but convicted him of a lesser charge, first-degree manslaughter, for fatally beating her as punishment for stealing a snack and jamming his computer printer with toys.

The lower charge carries a maximum sentence of 25 years in prison; second-degree murder carries a possible life sentence.

The verdict, reached on the fourth day of deliberations after an eight-week trial, brought an end to the first trial in one of the most horrific child deaths in the city’s recent history, one that triggered an overhaul of the city’s child welfare system. Nixzmary’s mother, Nixzaliz Santiago, is to be tried later on murder charges.

The difference between second-degree murder and first-degree manslaughter is subtle. In convicting Mr. Rodriguez, 29, of first-degree manslaughter, the jury determined that Mr. Rodriguez had caused Nixzmary’s death by recklessly engaging in conduct that created a grave risk of serious physical injury. To find him guilty of second-degree murder, the jury would have had to determine that he acted with “depraved indifference to human life.”

During the eight-week trial, Mr. Rodriguez’s main lawyer, Jeffrey T. Schwartz, told jurors that though Mr. Rodriguez, who admitted beating Nixzmary regularly, was a child abuser, he was not a killer and that he never thought any of his beatings would cause Nixzmary’s death.

As the foreman of the 10-woman, 2-man jury in State Supreme Court in Brooklyn declared Mr. Rodriguez “not guilty” of the top charge, Mr. Rodriguez looked down. One of his lawyers, Barry Deonarine, put an arm around his shoulder. Mr. Rodriguez continued to look down as the foreman read the rest of the 12 verdicts, most of them guilty. Eventually, he closed his eyes.

After the verdict was read, Ana Dwimoh, the lead prosecutor, told reporters outside the courthouse that she would not comment on whether she was satisfied with the verdict.

“The bottom line is that the jury has spoken,” Ms. Dwimoh said.

A law enforcement official who spoke on the condition of anonymity said with a shrug of the shoulders, “It could be worse.”

One juror, Terrence Cobwell, said afterward, “We would have liked to have upped the charges but the prosecution didn’t really give us enough."

He said the mood inside the jury room had been tense, just as the mood throughout the trial had been.

Mr. Cobwell said the verdict had been “sort of” a compromise. “We just wanted justice for the little girl,” he said.

Mr. Rodriguez’s main lawyer, Jeffrey T. Schwartz, who complained throughout the trial that prosecutors had withheld exculpatory evidence, had mixed emotions afterward.

“It’s rewarding given what we had to work with,” he said, “but it’s unconscionable because the prosecutors cheated, and that will form the basis of our appeal.”

Nixzmary lived and died in a two-bedroom apartment on Greene Avenue in Bedford-Stuyvesant with her mother, her stepfather and five half-siblings. At the trial, a portrait emerged of a poor family plunged into chaos after Ms. Santiago had a miscarriage in late November 2005, less than a year after giving birth to her sixth child. Ms. Santiago was depressed, and, according to many sources, blamed Nixzmary for the miscarriage and called her a devil.

The parents stopped sending the children to school regularly. Mr. Rodriguez lost his job as a security guard. He said he began to beat Nixzmary daily and to tie her to a chair with duct tape, rope and bungee cords because she was trying to harm her siblings and destroying the family’s precious food supplies.

Nixzmary’s injuries did not escape the notice of her teachers on the rare occasions she came to school. They notified the city’s Administration for Children’s Services, which sent workers to the family’s home several times in early January 2006 but failed to make meaningful contact with the family, in part because Mr. Rodriguez was unreceptive.

On Jan. 10, 2006, the welfare agency assigned case workers to visit the home after hours, but the case workers decided to wait till the morning.

Before dawn on Jan. 11, Ms. Santiago woke an upstairs neighbor and asked her to call 911, saying that Nixzmary had drowned. Paramedics found her dead on the floor, most of her rail-thin body covered with cuts and bruises and black eyes in various stages of healing. An autopsy revealed that she had died of bleeding on the brain caused by blows to the head.

In the hours that followed, Mr. Rodriguez gave a series of statements to detectives and prosecutors in which he said that on the last night of Nixzmary’s life, she got in trouble for taking a snack from the refrigerator — a yogurt or pudding — without permission and for jamming his computer printer with toys. He said he had pounded her with his hands, demanding to know why she was so destructive, and had shoved her head under a cold bathtub faucet.

When he was done, he said, he feared he had beaten her more seriously that night than he ever had before, that she looked “more pale than any other day,” would not meet his gaze and appeared “dazed out.” He says that after beating her, he left her moaning and went to his room, and that when his wife told him she was concerned that Nixzmary was having trouble breathing, he told her not to worry because “I thought it was just one of her scams.”

A medical examiner testified at the trial that Nixzmary was actually passing through the stages of death from bleeding on the brain: headache, nausea, confusion, sleepiness, coma, respiratory depression.

After Nixzmary’s death, and reports of multiple missed opportunities to intervene in the girl’s short, sad life, Mayor Michael R. Bloomberg declared, ”We, as a city, have failed this child.” The city overhauled the Administration for Children’s Services, firing more than a dozen officials at the agency and putting new safeguards in place. Nixzmary’s death also sparked a surge in child-abuse reports and placement of children into foster care.

Both parents were charged with murder and were originally to be tried together. But Ms. Santiago’s case was held up so many times that prosecutors severed the cases to bring Mr. Rodriguez to trial first.

The trial, plagued by delays, legal bickering, relaxed punctuality and a general air of glacially unfolding chaos, dragged on for more than eight weeks.

Prosecutors relied heavily on Mr. Rodriguez’s statements and on visceral visual aids to make their case: graphic photos of Nixzmary’s savaged body; ruined tokens of innocence like a bloodstained Donald Duck pillow; the school chair and the duct tape that bound it to her; and the litter box into which she was forced to defecate when locked in her room.

Mr. Schwartz, Mr. Rodriguez’s main lawyer, staked his case on a claim that while Mr. Rodriguez beat Nixzmary, it was Ms. Santiago who struck the fatal blow. Because Mr. Rodriguez was charged not only with killing Nixzmary himself but also with helping Ms. Santiago kill Nixzmary and with failing to get her medical attention, Mr. Schwartz needed to persuade the jurors that Ms. Santiago bore all the blame for the girl’s death.

He portrayed Mr. Rodriguez as a hard-working, caring father and Ms. Santiago as an unstable, erratic woman who had had children by four different men by the time she was 26. After her miscarriage, Mr. Schwartz said, Ms. Santiago grew violent, beating Nixzmary badly enough for her to require stitches. Mr. Schwartz frequently referred to a jar that Ms. Santiago kept on her dresser containing placental tissue that she said was from her miscarriage.

Mr. Schwartz promised the jurors at the beginning of the trial that they would hear in Ms. Santiago’s own words that she beat Nixzmary until she was lifeless.

But when the testimony finally came, it turned out to be an allegation that Ms. Santiago had told a friend in jail that she had dreamed she beat Nixzmary lifeless. The jailhouse friend, a convicted con artist who befriended Ms. Santiago while working as a suicide prevention aide on her unit, said that Ms. Santiago had told her that in real life, she and Mr. Rodriguez killed Nixzmary together.

Annie Correal contributed reporting.

    Guilty Verdict in Nixzmary Brown Case, NYT, 18.3.2008, http://www.nytimes.com/2008/03/18/nyregion/18cnd-nixzmary.html?hp

2 Sentenced in W.Va. Torture Case

March 13, 2008
Filed at 12:53 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

LOGAN, W.Va. (AP) -- Two people accused of taking part in the torture of a young black woman received the maximum sentence possible Thursday, but the victim's mother said it wasn't enough.

Karen Burton, 46, and Frankie Brewster, 49, both pleaded guilty last month for their roles in the kidnapping and assault of Megan Williams last summer. They were among seven white defendants charged in the case.

Logan County Circuit Judge Roger Perry sentenced Burton to 10 years for violating Williams' civil rights. She also received separate 2 to 10 year sentences for assault charges. All three sentences will be served consecutively. Brewster received a 10-to-25-year sentence for second-degree sexual assault.

Williams and her parents wept as the sentences were read.

''I just believe he (prosecutor Brian Abraham) shouldn't have plea bargained with any of them,'' said Williams' mother, Carmen, after the sentencing. ''She (Megan Williams) wanted them to do life.''

Megan Williams, wearing dark sunglasses and a large black coat, made no statement.

Malik Shabazz, a founder of Washington, D.C.-based Black Lawyers for Justice, also decried the sentences. He called for a special state prosecutor and renewed involvement by federal authorities.

''I don't understand what happened here in Logan County and why they don't take what happens to our people seriously,'' Shabazz said.

The judge said during the brief, sparsely attended hearing that he was giving the maximum sentence in each case.

According to Department of Corrections officials, Burton must spend at least six years and six months in prison before becoming eligible for parole. Brewster must serve at least 10 years before being considered for parole.

Authorities say Williams was held captive for several days last summer at Brewster's trailer in Big Creek. In addition to the beatings and assaults, authorities said Williams was forced to eat animal feces and was stabbed. The 21-year-old woman was rescued by sheriff's deputies on Sept. 8 after they received an anonymous tip.

Two other defendants already have pleaded guilty and been sentenced. Burton's daughter, Alisha, 23, and George Messer, 27, both pleaded guilty in February to kidnapping and assault and received 10-year sentences.

Felony charges including kidnapping and sexual assault are pending against Brewster's son, Bobby, 24, and Danny Combs, 21. A seventh defendant, Karen Burton's son, Linnie Burton Jr., 21, was indicted on a misdemeanor battery charge.

The Associated Press generally does not identify suspected victims of sexual assault, but Williams and her mother agreed to release her name. Carmen Williams has said she wanted people to know what her daughter had endured.

    2 Sentenced in W.Va. Torture Case, NYT, 13.3.2008, http://www.nytimes.com/aponline/us/AP-Woman-Tortured.html

Sidebar

Around the U.S., High Courts Follow California’s Lead

March 11, 2008
The New York Times
By ADAM LIPTAK

The California Supreme Court is the most influential state court in the nation.

That’s not just talk. The numbers back it up.

A new study counted up the number of times the decisions of state high courts were followed in other states — in other words, how often one state’s decision played a direct role in shaping a decision elsewhere. That sort of citation analysis is a common measure of influence, and there is a cottage industry of rankings for judges, law professors, law reviews, law faculties and the like.

According to the study, published in December in the University of California, Davis, Law Review, the California Supreme Court won by a landslide.

In the 65 years ending in 2005, more than 24,000 state high court cases have been followed at least once. California leads with 1,260 decisions. Washington is next, with 942, and Colorado is third, with 848. New York comes in 10th and is only about half as influential as California, with 627 followed cases.

The Kentucky Supreme Court is the least influential high court in the nation, with 177 cases. The median was 453.

California also leads nationally if only cases followed three or more times are counted. The same goes for cases followed five or more times. In each category, California beats New York handily, by 160 to 39 for three or more followed cases and by 45 to 6 for five or more. The race has tightened a little, though, in the last 20 years.

Gary Spencer, a spokesman for the New York Court of Appeals, the state’s highest court, had no comment.

Justices in other states did not embrace the study.

“Not to be too petty about it,” one wrote in a detailed critique when asked by a reporter, “but a report by the chief supervising attorney of the Supreme Court of California and the reporter of decisions of California that concludes — voilà! — that California is the most ‘followed’ jurisdiction in the nation is presumptively suspect.” The justice was granted anonymity to allow him to be petty.

It is true that the study’s authors, Jake Dear and Edward W. Jessen, work for the California court system. But the study’s methodology seems smart and hard to quarrel with.

The authors of the study did not merely add up the raw number of citations, given that the mere citation of a decision says nothing about whether the citing judge found it to be well reasoned or persuasive. Sometimes courts cite decisions in order to criticize them. Sometimes they mention cases in passing.

But, as all litigation associates know from late nights and bitter experience, a service called Shepard’s characterizes citations. Decisions may be, for instance, “overruled,” “criticized,” “questioned,” “limited” or “explained.” (Woe be to the associate who fails to discover that a partner’s brief is premised on a decision that has been overruled.)

The study counted only citations designated “followed” by Shepard’s. The designation is used relatively rarely and only for “controlling or persuasive authority,” meaning that the cited decision played a substantial role in shaping the later decision. A manual Shepard’s provides to the lawyers who work for it says that the “followed” designation should be used only if the citing decision “contains language beyond a ‘mere going-along’ with the cited case.”

California’s victory thus seems authentic. What drove it?

Judge Michael A. Wolff of the Missouri Supreme Court said the nature of the California Supreme Court’s jurisprudence and the state’s legal culture might have played a role in the study’s findings.

In several personal-injury decisions, the California court, Judge Wolff wrote in an e-mail message, has been “out in front in emerging theories of liability.”

Indeed, the most followed decision, with 20 citations, was Dillon v. Legg in 1968, in which a woman was allowed to sue for the emotional distress caused by witnessing her child’s accidental death. Next, at 17 citations, was Tarasoff v. University of California in 1976, which ruled that mental health professionals sometimes have a duty to warn people about dangerous patients.

Such decisions, Judge Wolff wrote, “were accompanied by a Greek chorus of academic commentary, favorable for the most part as long as the trends remained liberal.”

The study itself said that California’s size and diversity gave its Supreme Court an enormous inventory of interesting cases to choose from; that lower-court decisions there tended to present the pertinent issues well; and that the Supreme Court had a professional legal staff whose main job was to analyze petitions for review.

Ronald M. George, the chief justice of the California Supreme Court, said the court had not commissioned the study, and he added that the most interesting result was not his court’s dominance, which may be at least partly based on the state’s population, but the good showings of high courts in states with fewer people, notably Washington and Kansas.

But there is something special about the California Supreme Court, as the packed courtroom last week for arguments in a same-sex marriage case demonstrated. Lawyers on both sides said they expected the ruling, which will be issued in the next three months, to be quite influential.

At the hearing, Chief Justice George quoted repeatedly from a 1948 decision of his court, Perez v. Sharp — the first state high court decision to strike down a law banning interracial marriage. Over the next two decades, the rest of the nation followed it, culminating in a similar ruling by the United States Supreme Court in 1967.

The California Supreme Court must now decide whether to follow the Supreme Judicial Court of Massachusetts, the only state high court that has endorsed same-sex marriage.

Chief Justice George, discussing the study Friday, did not talk about the same-sex marriage case, of course. But he did say a little about his court’s citation philosophy.

“We look for wisdom wherever we can find it,” he said.
 

Online: Documents and an archive of Adam Liptak’s articles: nytimes.com/adamliptak.

    Around the U.S., High Courts Follow California’s Lead, NYT, 11.3.2008, http://www.nytimes.com/2008/03/11/us/11bar.html?hp

Jury Convicts Inmate of Capital Murder

March 11, 2008
Filed at 1:21 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

ABINGDON, Va. (AP) -- A jury on Tuesday convicted a jail inmate of capital murder for killing a hospital security guard and a sheriff's deputy during an escape from custody.

Jurors deliberated for about 3 1/2 hours before finding William Morva guilty of the August 2006 slayings in Montgomery County.

Jurors will hear more testimony before deciding whether to sentence Morva, 26, to death or to life in prison without parole. Those are the only two sentencing options in capital murder cases in Virginia.

Morva was convicted of overpowering a sheriff's deputy at a hospital in Blacksburg and then using the deputy's pistol to kill security guard Derrick McFarland. He also was found guilty of killing sheriff's Cpl. Eric Sutphin one day later near the Virginia Tech campus.

During the manhunt for Morva, Virginia Tech canceled classes on the first day of its fall 2006 semester.

Jurors heard three days of testimony in the trial, which was moved to Washington County from Montgomery County because of difficulty seating a jury.

    Jury Convicts Inmate of Capital Murder, NYT, 11.3.2008, http://www.nytimes.com/aponline/us/AP-Inmate-Slayings.html

N.J. Convict Charged in 1968 Slaying

March 11, 2008
Filed at 1:24 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

FREEHOLD, N.J. (AP) -- A convicted killer imprisoned since 1975 for the slaying of a teenage girl was charged Tuesday with the 1968 murder of another girl, a 13-year-old from Middletown.

Robert Zarinsky was charged in the death of Jane Durrua, Monmouth County prosecutor Luis Valentin said. Authorities were expected to release additional details at a Tuesday afternoon news conference.

For years, authorities considered Zarinsky a prime suspect in a string of unsolved slayings in Middlesex, Monmouth and Union counties from the 1960s and 1970s.

Durrua, an eighth-grader, was on her way home from school Nov. 4, 1968, when she was raped and bludgeoned on an isolated pathway near her home, and her body dumped next to abandoned railroad tracks.

Zarinsky, 67, a former grocer, was convicted in 1975 of murdering Rosemary Calandriello, 17, of Atlantic Highlands, who was last seen in 1969. He is serving a 98-year sentence at South Woods State Prison in Bridgeton.

In January, prosecutors sought to use DNA evidence to try to tie Zarinsky to Durrua's killing.

Another man, Jerry L. Bellamy, had been charged in 2004 with Durrua's slaying, but the charges were later dropped. Authorities said they realized that a laboratory scientist had handled DNA evidence involving Bellamy, a convicted sex offender, and evidence from the Durrua killing on the same day. That raised the possibility that the evidence of Bellamy's DNA had contaminated the Durrua evidence.

Zarinsky was also linked in recent years to an even older slaying, the Nov. 28, 1958, death of Charles Bernoskie. The Rahway police officer was shot to death during a botched burglary at a car dealership.

The Bernoskie link was part of a bizarre squabble over Zarinsky's six-figure fortune, which came from proceeds from the inheritance from his mother's house.

Zarinsky was charged in 1999 after he made a telephone call from prison and complained that more than $100,000 was missing from his mutual fund. Investigators traced the money to his sister, who then implicated him in Bernoskie's death.

In 2001, he was acquitted of Bernoskie's murder, but a civil trial jury later found him liable and awarded $10.8 million to Bernoskie's widow. She got $154,143 from the mutual fund, but a state appeals court vacated the jury award in 2006 and Zarinsky demanded his money back.

The public rallied when the widow -- who had already given the money away to her children -- said she faced the loss of her home in order to repay. Donations enabled her to return the money, but Zarinsky recently filed a notice that the amount did not include enough interest.

    N.J. Convict Charged in 1968 Slaying, NYT, 11.3.2008, http://www.nytimes.com/aponline/us/AP-Old-Murder.html

Trial’s Spotlight Finds a Shadowy Place

March 3, 2008
The New York Times
By MICHAEL WILSON and JOHN ELIGON

Exhibit No. 2A, a simple floor plan of a night club, was placed into evidence by the prosecution in State Supreme Court in Queens last week. It is a crime scene investigator’s pen-and-ruler rendering of Club Kalua, and while it had the club’s dimensions down to the inch, the number of stools at the bar and the size of the stages, it managed to tell nothing about the place.

It is like looking at an empty glass and trying to taste one of the club’s popular $16 Long Island iced teas. There is nothing on the diagram, for instance, marking the spot where Trini and Holiday, two dancers, once wrestled a man out of the changing room. The drawing does not explain that when dancers implore customers for $20 glasses of champagne, it’s not because they’re thirsty.

There is nothing there about the police raid in 2006 that collected a gravity knife, a bag of cocaine and a stun gun from a purse behind the bar. Nothing about the customer who called the dancers “family.”

But the criminal trial of three detectives charged in the killing of Sean Bell in a fusillade of 50 bullets has brought new attention to the club. As the first week of testimony ended on Friday, details about the moment of the shooting remained murky, but life at the club, as described by patrons and employees, had become far clearer. Perhaps too clear for a scene normally blurred by shadow and liquor.

Some have vilified the place. A defense lawyer in the case, Anthony L. Ricco, chose colorful language in his opening statement before the 74-year-old judge who will render a verdict. Mr. Ricco all but described it as the next Sodom and Gomorrah: “A place where people go to drink, watch women shake their booties and fulfill a sense of twisted sexual prowess.”

Before the shooting, it was a second-rate men’s club, an off-the-beaten-path dive in Jamaica below an elevated train and near a shop selling live chickens. And yet, a reporter’s visit last week suggested that 2006 may have been the club’s heyday. Today, it smells bad inside, like a person who needs a bath.

But for those who are there day in and day out, it is more like a cozy neighborhood pub than a strip club. It is a place where a young woman can work to put herself through college, where dancers who are competing for every dollar nonetheless develop an us-against-them camaraderie. It is like a family, said Harold James, who used to visit three times a week — a family that frisks its visitors, but a family nonetheless.

The night of Mr. Bell’s party was like most any other at Club Kalua, employees said. A doorman patted everyone down, from shoulders to ankles. Even Mr. James, 37, said he was frisked from time to time, although just for show, “If there’s a crowd outside.”

Once inside, the music was deafening. There were a couple of arcade games opposite the main stage, an A.T.M. in the back that charged a $5 service fee and dancers who, when they weren’t dancing, were prowling the floor, flirting with customers and hustling the valuable champagne drinks. For every $20 glass of champagne sold, the dancer pocketed $10, according to the testimony of one dancer, Marseilles Payne. At the Kalua, Ms. Payne was known by her stage name, Trini, which is short for her family’s homeland in Trinidad.

“Everybody was making money,” she said of the night of Mr. Bell’s bachelor party. “Everybody was having fun.”

Not quite everyone.

One of Mr. Bell’s friends, Larenzo Kinred, said, “I saw a woman throw a drink at a man.” And later, he said, “A female had come up to me, crying, talking about how she had just gotten smacked.”

Ms. Payne recalled the confrontation that night in the dressing room between a dancer, Lizette, and her boyfriend. “They started arguing and Lizette got up and smacked him,” she said. He returned the blow: “Back of the hand,” she said. “They were tussling.” Ms. Payne and another dancer jumped between them, pushed the man out and slammed the door.

A ramp in the rear led to a small so-called V.I.P. area, which Mr. Bell and his friends visited after ordering Long Island iced teas. The bartender, Emilcen Angulo, 53, who has worked there for four years and has been known to have a customer’s refill ready before it is ordered, testified that she still remembered Mr. Bell’s $5 tip.

Another bartender, Tina O’Neale, 25, testified that one of Mr. Bell’s friends, Joseph Guzman, ordered a glass of Hennessy cognac and bought her a shot of tequila, and asked her out. “He was like, ‘Are you going to give me an answer before you leave?’ ” she told a grand jury last year in testimony released last week.

Seeing friends was more important than seeing the women, said Mr. James, the regular who was known by his nickname, Bones. “I know all the girls,” he said. “It’s not like I’m seeing something spectacular.”

The feeling was mutual. “Bones was Bones,” Ms. Payne testified. “If he liked you, he’d tip you a couple of dollars. Other than that, he was just there to talk, to run his mouth.”

The club was the latest sex-oriented operation in Jamaica closely associated with Martina and Roger Duran, a mother and son who have managed to remain in business for nearly a decade despite repeated raids by police and attempts by the city and state officials to shut them down, according to a review of court records and enforcement actions conducted by The New York Times in December 2006.

There have been no arrests at the club since Mr. Bell’s shooting, said Paul J. Browne, the Police Department’s chief spokesman. The State Liquor Authority has two cases pending against the club, one for more than two years, that could lead to the revocation of its liquor license, possibly this month.

One case cites a failure to include Ms. Duran on the license application, the other is a 2005 prostitution charge. An administrative law judge issued findings in both cases on Feb. 12, said William Crowley, a spokesman for the Liquor Authority, who said that the findings will not be made public until they are finalized.

The club has 20 days to review the findings before a final order is issued. The authority’s board is expected to issue its final order at a meeting on March 20, Mr. Crowley said.

While the club is still open, a visit on Thursday night suggested that the last year had not been kind.

The club seemed decorated to fit any occasion, with Christmas lights and snowflakes in one area, and “Happy Birthday” and sagging Valentine’s Day balloons in another. A sign behind the bar reminded bartenders that “hair and nails must be done.” A disk jockey repeatedly told customers that they must have a drink in their hands at all times. That would not have been many drinks: The dozen or so dancers outnumbered the men they were dancing for.

The dancers clung to the men, offering back rubs and lap dances and asking for champagne. They wore bikinis, and did not strip on stage, which employees said had long been the case even though since the shooting and during the trial it had often been described as a strip club. One dancer who was flirting with customers paused to pay a Chinese food deliveryman for her vegetable lo mein, which she ate by herself in the V.I.P. area.

Employees said business has slowed since the shooting. The weekends are sometimes busy, they said, but not always.

Even Mr. James, who last year told the grand jury, “This is my family in here,” testified that he hardly went in the club anymore.

“Maybe once in a blue moon,” he said.

Ray Rivera contributed reporting.

    Trial’s Spotlight Finds a Shadowy Place, NYT, 3.3.2008, http://www.nytimes.com/2008/03/03/nyregion/03bell.html

Commander Testifies

He Felt ‘Under Fire’ Outside Nightclub

March 1, 2008
The New York Times
By JOHN ELIGON

The commanding officer of the detectives charged in the fatal shooting of Sean Bell testified on Friday that believing he was under fire, he drew his gun and pointed it toward the passenger windows of his car that night. He was ready not only for ambush, he said, but ready to add to the fusillade of 50 shots that claimed Mr. Bell’s life.

“If anyone came up on our car, I would have fired,” said the officer, Lt. Gary Napoli, in part of the second-by-second account he gave in the trial of three detectives charged in Mr. Bell’s killing after his bachelor party on Nov. 25, 2006.

The lieutenant also testified that an oft-quoted radio transmission from one of the detectives before the shooting that the situation was “getting hot” was, to his mind, a frantic call for help.

Prosecutors have said that the team led by Lieutenant Napoli, a 24-year police veteran, was disorganized and incompetent. The group was part of the Police Department’s “club initiative” in which undercover officers bought drugs in clubs and backup officers arrested the sellers.

The group that night was hoping to make arrests at a Jamaica strip club, the Club Kalua, where Sean Bell and some friends were celebrating his bachelor party. In State Supreme Court in Queens on Friday, the lieutenant said they were forced into split-second decisions they believed were necessary to protect their lives.

Detectives Gescard F. Isnora and Michael Oliver face first- and second-degree manslaughter charges and Detective Marc Cooper faces a reckless endangerment charge.

Lieutenant Napoli recalled being in a car with two colleagues — Detectives Paul Headley and Cooper — not far from the Club Kalua, when he got an urgent call on his cellphone from Detective Isnora.

“He lets me know there’s two groups basically in a heated argument,” Lieutenant Napoli said, describing Detective Isnora’s call. “He’s near them and he believes there may be weapons involved.”

A short time later, Lieutenant Napoli testified, he received another, more frantic call from Detective Isnora, who told him it was “getting hot” and that “I need you here quick.”

“That was a call for help in my eyes,” Lieutenant Napoli said.

With Detective Headley driving, Lieutenant Napoli in the passenger seat and Detective Cooper in the back seat, their car turned south onto Liverpool Street from 94th Avenue, the lieutenant said. He spotted Detective Isnora, who raised his chin in an upward motion, gesturing toward Mr. Bell’s car, he said.

They drove past Mr. Bell’s car and were coming to a stop when he bent down to reach for the flashing bubble light to place on the dashboard, he said. Before he could get to it, Lieutenant Napoli said, he heard a collision and then gunshots.

“I told Marc and Paul, ‘Get down, we’re under fire,’ ” Lieutenant Napoli testified.

Lieutenant Napoli said that he drew his gun, and that his initial reaction was to aim out the rear window, but Detective Cooper blocked his line of fire. So instead, the lieutenant crouched in his seat and aimed out the side windows, he said.

But then he realized, for one simple reason, that their car, a tan Toyota Camry, was not under fire: none of the windows were broken. As the gunfire continued, he said, the three got out of their car. Lieutenant Napoli said he crawled toward the back of the car.

Trying to find the source of the gunfire, Lieutenant Napoli said, he reached the rear of the vehicle — but then the shots stopped.

“When it ended, there was almost like an eerie silence,” he said.

Lieutenant Napoli, who did not fire his gun, said he did not recall the long pause that other witnesses have testified about.

“This is seconds,” he said. “Everything is in seconds. A very close approximation of time.”

Asked by prosecutors what went through his mind, Lieutenant Napoli said, “Just to see that, thank God, none of us were hurt and we were going home.”

The assistant district attorney, Charles A. Testagrossa, in his questioning, seemed to suggest that the lieutenant had shown restraint when the detectives who fired did not.

“You would not just let shots go without having an identified target?” he asked the lieutenant.

“Correct,” Lieutenant Napoli responded.

From a crouched position behind his car, the lieutenant said, he saw movement in Mr. Bell’s car. He told the passenger to show his hands, and Mr. Guzman stuck his hands out the window and wiggled his fingers, he said.

As he got closer to the car, Lieutenant Napoli told Detective Michael Oliver to call an ambulance. Lieutenant Napoli said he could not remember if any of his detectives were wearing their badges.

“It was surreal; we were all in a state of shock,” he said. “We were O.K. We didn’t really discuss anything more.”

Lieutenant Napoli was the only witness to testify on Friday as the first week of the trial came to an end.

Under cross-examination from Anthony L. Ricco, the lawyer for Detective Isnora, Lieutenant Napoli tried to dispel the suggestion that he led an overzealous unit looking for an arrest that would get the Club Kalua shut down and keep his team intact. The department was planning to streamline its club initiative anyway, he said.

“If we made an arrest, that wouldn’t have kept our command together,” he said. “That decision was beyond us.”

Detective Isnora had helped secure prior arrests at Kalua, Lieutenant Napoli said.

But under questioning from Mr. Testagrossa, Lieutenant Napoli confirmed that undercover detectives do not generally make arrests; rather, they are supposed to alert their backup units to handle that.

Lieutenant Napoli described Detective Isnora as quiet, thoughtful and good at his job. He said Detective Cooper was a responsible officer. He spoke highly of the detectives’ ability to infiltrate the Club Kalua.

“It’s basically a neighborhood location and people tend to know each other,” he said, “unlike Manhattan, which is more transient.”

    Commander Testifies He Felt ‘Under Fire’ Outside Nightclub, NYT, 1.3.2008, http://www.nytimes.com/2008/03/01/nyregion/01bell.html