In a Manhattan courtroom, a small little case is being tried that reflects the impact that at-the-ready videocameras are having on litigation. Many cases I have tried in recent years, both civil and criminal, have had their outcomes effected by a video or picture captured either from a cellphone camera or one of the dozens of indiscriminate video cameras that quietly record our every move. The NY Civil Liberties Union has a website that lists the 2,397 videocameras working in Manhattan. Here’s a link to their site: http://www.mediaeater.com/cameras/overview.html. Similar sites lists cameras in other boroughs. As soon as possible after a case comes in, I check the lists to see if there was working camera in the area then either try to get the video voluntarily or get a subpoena for it.
But bicyclist Chris Long should be particularly gratified that the ready availability of handicams on cellphones recorded the incident in July 2008, between him and rookie cop Patrick Pogan. That’s the case that’s being tried from yesterday in Judge Max Wiley’s courtroom at 100 Centre Street. Long was part of a protest called Critical Mass which involves dozens and dozens of bike riders congregating on public streets and making a general nuisance of themselves.
As Long took his turn riding through Times Square, Officer Pogan (11 days on the job) had enough and ran towards Long and viciously shoved him off his moving bicycle. Long who suffered minor injuries, was then handcuffed on the ground, and arrested for disorderly conduct and resisting arrest. It was Pogan’s first arrest of his career. It was also his last, because other bikers who had been taping the protest with their cell phones showed that Pogan’s complaint report that Long had tried to drive into him was false – Long was driving straight until Pogan charged him and then tried to avoid contact with the officer but was unable to. So the charges against Long were dismissed and Pogan was arrested for filing a false report and assault.
The tape tells the whole story, so all Pogan’s PBA lawyer can do is attack Long. Here is a sample of the cross-examination as reported by the NY Times:
“Would it be fair to say you like to get stoned?” asked Stuart London, the lawyer who is defending Mr. Pogan.
“That would be a fair assessment,” Mr. Long agreed, but he said that for the duration of the trial, he had, at the request of the prosecutor, suspended the pipeful of pot that is his customary start to the day.
Was he anti-police, Mr. London asked.
“As an armed organization, I would say yes,” Mr. Long said. “But not as individuals.”
He smiled frequently at the spectators, as well as the jury and Mr. Pogan.
“Why are you anti-government?” Mr. London said.
For the same reasons he was anti-Police Department, Mr. Long said: “I think it’s too far gone to be reformed.”
Whatever that means. What all of that has to do with getting shoved off a moving bicycle, I don’t know but London, whose whole practice revolves around representing police officers through the PBA has little to work with. His other defense is that he was told by supervisors to “do whatever had to be done” to contain the protest.” So yesterday I blogged about Arizona using “Your papers please” to combat illegal immigration and today the PBA is using the Nuremberg Defense: “I was just following orders” to justify excessive force. It didn’t work in Nuremberg and Pogan will likely get convicted as well.
Because there was a tape. No tape and the charges against Long don’t get dismissed. No tape and the story is not overzealous cop abuses stoner protester. No tape and the story is hero rookie cop arrests crazed bike assailant. Because without the videotape, what Manhattan jury would take Long’s word over Pogan’s word?
A cautionary tale for all potential litigants and all trial lawyers. Don’t ever forget to check for video evidence, it could come back to bite you.