'A DEFENSE ATTORNEY’S DREAM'

'A DEFENSE ATTORNEY’S DREAM'
By CHRISTOPHER KILBOURNE
Staff Writer
A white cop responds to a report of a black youth with a gun. A heated chase ends in a tragic shooting. The cop says self-defense; prosecutors say reckless manslaughter. An all-white jury sitting in the cop’s back yard is asked to decide.
"It's a defense attorney's dream," said Miles R. Feinstein, a Clifton defense attorney who has represented several police officers in criminal cases. "A split-second reaction in the line of duty. The suspect may have had a gun. What you have here is a reconstruction based on differing accounts, and that makes the case very difficult to prove."
Defense attorney John P. Lacey, a former federal prosecutor, agrees: "I wouldn't say it's a definite win for the defense, but it certainly is an uphill battle for the prosecutor."
On the eve of opening arguments, a number of veteran trial attorneys said the odds are heavily against conviction in the trial of Gary S. Spath, the Teaneck police officer charged with reckless manslaughter in the April 10, 1990 shooting death of 16-year-old Phillip C. Pannell.
All agreed that Glenn D. Goldberg, the 19-year Essex County assistant prosecutor brought aboard by the Attorney General's Office to lead the Spath prosecution, is among the best at his profession. But Goldberg will have to navigate a river of emotional and evidentiary snags that could sink the state's case, expected to be presented later this week, they pointed out.
Lawyers cited several factors that could make the jury unreceptive to the evidence against Spath, including his status as a law enforcement officer, the "hometown" location of the trial in Hackensack, the conflicting expert and eyewitness testimony, and the likelihood that jurors will never learn of Spath's three prior on-duty shootings.
On top of everything else, the prosecution will have to counter defense attorney Robert L. Galantucci's depiction of Spath as an upstanding member of the thin blue line, an officer who was doing the best he could at a thankless job under the most difficult -- and dangerous -- circumstances.
The magnitude of Goldberg's task is reflected in the fact he will have to prove guilt beyond a reasonable doubt in a case in which the first of two grand juries that reviewed the evidence did not even find probable cause to indict.
Goldberg, an outsider to the Bergen County legal arena with no apparent political ambitions, was tapped for the job last July.
One of his biggest obstacles, the experts say, is the inherent difficulty of trying to persuade jurors to convict a law enforcement officer.
Paterson defense lawyer Adolph J. Galluccio said he has seen a distinctly "pro-police" bias by jurors. "They give them the benefit of the doubt in these situations because they don't like to second-guess a police officer," he said. "They recognize that they are the last line of defense and that if you alienate them they might not be there when you need them."
But the badge does not shield police officers in all criminal cases. When the charges involve drugs or corruption, the fact that the defendant is a police officer can result in a backlash of public outrage, the lawyers said.
"But this case is more difficult," said Feinstein, a criminal law specialist who will be providing occasional commentary for Court TV's extensive coverage of the trial. "You have an officer acting in the line of duty who is making a split-second decision -- an officer who ostensibly had no malice toward the victim."
Reports that Pannell was brandishing a gun before the officers^ arrival and allegations that Spath's partner, Wayne Blanco, felt a pistol in Pannell's pocket during a frisk also changes the picture, the experts said.
"That in and of itself puts the officer's life in danger as well as the life of anyone around him," said Lacey, who practices defense law in Roseland. "That gives him the right to use all necessary force -- including deadly force -- to prevent the suspect from harming the officer or anyone else in the area."
Some lawyers downplayed the significance of the trial's taking place in Hackensack, right next to River Edge, where Spath lives, and Teaneck, where he works. They said that careful questioning of prospective jurors should have winnowed out people with a bias toward local law enforcement.
Others, however, said the Bergen County venue is almost certain to be a factor. Bernard K. Freamon, director of the Center for Social Justice at Seton Hall Law School, said the all-white panel of 12 jurors and four alternates is "kind of a typical Bergen County jury. He'll get a jury of his peers, and his peers in Bergen County may not be as friendly to the claims of the victim."
"Justice is geographically dispensed," said Allen C. Marra, a former Essex County assistant prosecutor who now does defense work. "In Bergen or Monmouth or Morris, you get a different type of juror who has not been touched by the types of problems an inner-city person may have experienced. In Essex or Passaic, the jury is more realistic in that they tend not to place credence in the testimony of a police officer just because he is a police officer."
Lacey, a former assistant U.S. attorney, cautioned that the Bergen County setting for the trial is a double-edged sword: "This is their back yard, and jurors will have to ask themselves whether they want him exercising that kind of judgment in their back yard -- it can work both ways."
As in any criminal case, the conflicting testimony of the witnesses is more of a problem for the prosecution, which has to prove the elements of the charge against Spath beyond a reasonable doubt. Goldberg will have to address differing accounts of whether Pannell had his arms raised in a gesture of surrender, whether Blanco frisked the youth, and what, if anything, was said by Pannell before the shooting or by the officers after the shooting.
"Anytime you have a standard of proof beyond a reasonable doubt and a credible person says it was X and another credible person says it was Y, you have to hesitate," said Galluccio. "And if you have to hesitate, you have reasonable doubt."
Goldberg may also be hindered by a kind of role reversal among the witnesses: Police officers called to the scene of the shooting will testify for the defense, while some of the youths who Spath was initially called to disperse wound up as star prosecution witnesses.
"You would expect someone [Pannell] was traveling with to know he had a gun in his possession," Lacey said. "That raises questions about their credibility, and whether they might have lied about what they planned to do with the gun, and about what happened that night."
Goldberg also could be hampered by rules of evidence that may prevent him from letting the jury know that Spath had fired his gun on duty on three prior occasions. On one of those occasions he was commended; on another, he was verbally admonished; and on the other, he was suspended.
"That tends to be devastating evidence," Freamon said.
Rule 55 of the New Jersey Rules of Evidence, though, will preclude Goldberg from introducing evidence of the prior shootings unless he can show that they were so similar to the Pannell shooting as to be part of a pattern. And most of those interviewed said that is an argument that Goldberg probably cannot win.
Freamon suggested, however, that the prosecutor may be able to get the prior shootings in through the "back door," possibly as rebuttal evidence if Spath raises a defense that the shooting was an accident or mistake.
Feinstein said Goldberg may have to overcome what he called "jury nullification," a phenomenon where jurors feel so much sympathy for a defendant that they won't convict even if the prosecution proves its case.
Even if Goldberg does not convince the jury that Spath committed reckless manslaughter, he may get a conviction on lesser charges ranging from aggravated assault to a disorderly persons offense.
Whether Superior Court Judge Charles R. DiGisi instructs the jury that they can convict Spath of a lesser offense will depend on whether any evidence to support those charges is introduced at trial.
"The defense may have some surprises, as may the state," said John H. Norton, a general practice lawyer in West Orange. "Trials are like life -- they tend to take some surprising turns."