A new piece of undisclosed evidence has delayed the trial of two Buffalo police officers accused of using excessive force.
The trial, scheduled to start Monday, was put on hold at the last minute because of an appeal by federal prosecutors seeking to use the evidence against Officers Raymond Krug and Joseph Wendel.
Prosecutors said the evidence, discovered about two weeks ago, arose from a "conversation in the hallway" but offered no other details on what was said or who said it.
The appeal also came on the heels of a defense motion challenging the government's use of statements from retired police lieutenant Gregory Kwiatkowski, a former co-defendant who took a plea deal two weeks ago.
Defense lawyers claim Kwiatkowski made statements in a Nov. 29 interview with the prosecution that should be considered "privileged and confidential."
Without mentioning Kwiatkowski or anyone else by name, U.S. District Judge William M. Skretny found the evidence to be '"attorney-client privilege" and, in a decision over the weekend, ordered it suppressed. He also sealed court papers detailing the new evidence.
Skretny dismissed the jurors in the case Monday but with the understanding they will be called back when the government's appeal is decided. He told them the appeal is expected to take about three months.
"Until then, we can't go forward with the trial," the judge said.
The delay is the latest development in a criminal prosecution that charges Krug and Wendel with violating the civil rights of four teenagers during their arrest on Treehaven Road in May 2009.
Suspended with pay, Krug and Wendel also stand accused of shooting one of the teens with a BB gun while the young man sat handcuffed in the car.
All four teens, now in their 20s, are expected to testify at the trial.
Defense attorneys Terrence M. Connors and Rodney O. Personius said the defense was prepared to go forward with the trial Monday and suggested the government's appeal's was nothing more than a delaying tactic.
"Obviously, we are disappointed the government chose to appeal," Connors said Monday. "It's another delay in justice in this case."
Federal prosecutors Mary Catherine Baumgarten and Aaron J. Mango urged Skretny to unseal court papers detailing the new evidence and pointed to the "public's right to know."
They also denied allegations that the government is stalling.
"I can stand here and tell you that this is not for delay," Mango told Skretny.
Indicted by a grand jury in 2014, Krug and Wendel were initially charged along with a third officer, Gregory Kwiatkowski.
A retired lieutenant, Kwiatkowski pleaded guilty to a reduced misdemeanor charge two weeks ago and agreed to testify against his fellow officers. As part of his plea deal, he admitted using excessive force on the four teens during their arrest seven years ago.
The defense is expected to challenge Kwiatkowski's credibility as a government witness and, as part of that strategy, point to what Connors calls a "long list of disciplinary issues."
Krug and Wendel are also expected to counter with evidence about the teenagers' actions that night.
Arrested in what police called a drive-by BB gun shooting, they were accused of firing into a crowd at Main and Custer streets and striking at least two people with pellets.
The four teens were charged with felony assault, reckless endangerment and criminal possession of a weapon but pleaded guilty to a lesser charge of harassment. They were each sentenced to a conditional discharge and community service.
The trial will also cast a spotlight on a civil suit two of the teens filed against the city in 2010 that resulted in settlements of $65,000 and $10,000 a piece.
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