Lawyers defending New York City in the Gidone Busch federal civil suit have yet to present their case to the jury. But even before they call their own witnesses, the attorneys’ line of questioning in cross-examination has ignited charges from local politicians of stereotyping and bias.
The lawyers from the cityís office of the Corporation Counsel, who are defending police officers who shot the hammer-wielding Busch 12 times in 1999, have asked civilian witnesses (all Orthodox Jews) if they discussed the case with Busch’s mother, community leaders or each other at synagogue.
Questions have also probed the close-knit nature of the Borough Park community, strongly hinting at collusion by those offering testimony that is potentially damaging to the officers.
"It’s obscene," said Borough Park City Councilman Simcha Felder. "They have an obligation to protect the city’s financial interests, but they also have a responsibility not to malign a community."
Councilman Bill de Blasio, who also represents part of Borough Park, denounced the city’s tactic in a statement as "the worst type of ethnic stereotyping."
Felder, de Blasio and Borough Park Assemblyman Dov Hikind this week called on Mayor Michael Bloomberg "to rein in the Corporation Counsel." But Bloomberg’s press secretary, Ed Skyler, dismissed their complaint.
"The allegations of anti-Semitism [against] the city’s Jewish Corporation Counsel are preposterous and irresponsible," Skyler said, referring to Michael Cardozo, the city’s top lawyer.
The defense tactic appears to straddle a thin line between questioning specific recollections of an incident to contrast them with previous statements (a standard litigation tactic) and suggesting that the close-knit Orthodox community in Borough Park cannot be trusted to provide an unbiased account of an incident that left an Orthodox man dead.
"On the one hand it’s disquieting," said Marc Stern, the legal affairs expert for the American Jewish Congress. "On the other, it’s a perfectly legitimate tactic, given the circumstances. They are not suggesting that every Jew in Borough Park is a liar. They are asking questions, apparently with some effect, so they are not shooting in the dark."
Rep. Jerrold Nadler, whose district includes Borough Park, called on the magistrate in charge of the case, Judge Sterling Johnson, to take action against the attorneys if their conduct is proven inappropriate.
"These questions about the nature of the community are either laying the groundwork for some legitimate question or not," Nadler told The Jewish Week. "If they are, it will come out in court. If not, they are designed to appeal to prejudice against the chasidic community, and that is improper and ought to be disciplined."
In the first days of the trial, which may last as long as a month, the cityís lawyers have been able to point out inconsistencies in some statements made by Jewish witnesses, even as the plaintiff lawyers have exposed contradictions in some of the officers’ testimony.
The central issues in the trial are how close the officers were to Busch, who had a history of mental problems and was wielding a hammer, when they opened fire on him on Aug. 30, 1999, and whether they had reason to fear that Busch would harm them.
The Busch family argues in its suit that the police officers coordinated their responses to investigators to avoid prosecution or disciplinary action in the shooting. But the defense has yet to suggest a motive as to why the witnesses would conspire to implicate the police.
While the line of questioning is surely intended to register with the racially mixed 10-member jury (six men and four women) it remains to be seen if the lawyers will offer a specific theory while making their case or in closing arguments.
During a break in the trial on Tuesday Glenn Busch, the older brother of Gidone who grew up on Long Island, lives in Manhattan and is not Orthodox, said it was "outrageous" to suggest neighbors on his brother’s block would lie to help him.
"When I go there, I feel like an outsider," said Busch, an attorney, who noted that defense attorney Alan Scheiner asked witnesses if they attended an annual memorial service for his brother.
So far, the charge of impropriety on behalf of the Corporation Counsel’s office has been leveled mainly by elected officials, although residents of Borough Park flooded a Jewish radio program, "Talkline," with angry calls last week about the direction of the trial.
Jewish groups have stayed on the sidelines, perhaps hoping to avoid the appearance of pitting the Jewish community, which has good relations with the police, against the NYPD.
The director of the Borough Park Jewish Community Council, Yechiel Kaufman, did not return repeated calls for comment on Monday and Tuesday. The council relies on grants from city agencies to fund a large portion of its social service operations.
The umbrella group representing most of the city’s major Jewish groups, the Jewish Community Relations Council, consulted with member agencies this week but decided to take no position on the matter while the trial is pending.
"It’s inappropriate to comment on matters that are still to be decided by a jury," said David Pollock, associate director of the JCRC. "We know the Busch family is being ably represented by counsel who can readily bring any concern to the judge."
The Anti-Defamation League also declined to comment.
Hikind, an early and outspoken critic of the police response, said Bloomberg should "prevent [the lawyers] from invoking this outrageous slur against the chasidic community of Borough Park."
He said any inconsistencies in reports from witnesses following the shooting and in later questioning likely resulted from a language barrier.
"For many chasidic Jews, their English leaves something to be desired," said Hikind.
Felder, who has had a close working relationship with Bloomberg at City Hall and recently accompanied him to Israel, said "the mayor is a very honest man and doesn’t care about ruffling anyone’s feathers in order to do the right thing."
On Monday and Tuesday, three police officers testified in the case, including Sgt. Daniel Gravitch, who did not fire at Busch but is a defendant in the suit. Another officer who did not fire at Busch, Kieran OíLeary, testified but has been dismissed from the suit.
The Busch family lawyer, Myron Beldock, questioned Gravitch as to whether Busch became more agitated after cops repeatedly told him to drop the hammer: in line with Beldock’s theory that the officers’ actions aggravated rather than ameliorated the situation.
Gravitch agreed that Busch did become more animated as the officers tried to disarm him.
Also on Monday, a medical expert testified that Busch likely was blinded by the pepper spray, contradicting a defense claim that the spray had no effect on him.