On hold for nearly nine months, the trial of two Buffalo police officers accused of using excessive force against four teenagers is moving forward and may reveal for the first time what was said in a secret hallway conversation between the defendants.
The trial will begin in December, nearly a year after it was first postponed, and one of the key witnesses is expected to be former co-defendant Gregory Kwiatkowski, a retired Buffalo police lieutenant.
Kwiatkowski, who pleaded guilty on the eve of the trial last year, will testify against Officers Raymond Krug and Joseph Wendel and is expected to disclose a new piece of evidence — private comments between Krug and Wendel.
Prosecutors said the evidence arose from a "conversation in the hallway," but neither the government nor the defense has commented on what was said or who said it.
A legal fight over the hallway conversation delayed the trial and the anticipated testimony of the four victims, now in their 20s. But that changed when a federal appeals court overturned a lower court decision declaring the conversation privileged and confidential and ordering that it be suppressed.
In short, Kwiatkowski can now testify about the conversation.
Prosecutors, who won the right to use the conversation during trial, now want a new jury to hear that testimony and on Wednesday argued that the nearly nine-month delay has created questions in the minds of the original jurors from last December.
"They're going to be wondering what was this," Assistant U.S. Attorney Aaron J. Mango said of the delay. "The issue is going to gnaw at them the entire time they're serving on the jury."
U.S. District Judge William M. Skretny dismissed the jurors last year, but with the understanding they would be called back when the two sides were ready to begin the trial.
Mango, who is prosecuting the case with Assistant U.S. Attorney Mary Catherine Baumgarten, pointed to the weekly news accounts of police shootings across the country and suggested it would be impossible for the jurors not to have read or heard those accounts.
"You'd have to be under a rock," Mango said. "You can't pick up a newspaper and not see a story."
Mango also noted that, while race is not expected to play a major role in the trial, it has been an issue in other shootings and the jurors are sure to notice that the victims are African-American and Krug and Wendel are white.
The government's request for a new jury is the latest development in a criminal prosecution that charges Krug and Wendel with violating the civil rights of the four teenagers during their arrest on Treehaven Road in May 2009.
Investigated by the FBI, 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. The two officers are currently suspended with pay.
Defense attorneys Terrence M. Connors and Rodney O. Personius would not comment on the hallway conversation, but made it clear they oppose the selection of a new jury.
Personius and Connors want Skretny to question the current jurors to determine if they can still serve, and said their answers should be proof enough to satisfy both sides.
"Truthfulness," Personius said. "That's what the whole system is based on."
Indicted by a grand jury in 2014, Krug and Wendel were initially charged with Kwiatkowski, who eventually pleaded guilty to a reduced misdemeanor charge and agreed to testify against them. As part of his plea deal, he admitted using excessive force on the four teens during their arrest eight 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."
On Wednesday, Connors also raised questions about Kwiatkowski's mental health and possible use of mood-altering drugs. He also claims one of the victims was recently arrested in a domestic violence case involving a girlfriend.
During the trial, Krug and Wendel are also expected to counter with evidence about the teenagers' actions that night in 2009.
Arrested in what police called a drive-by BB gun shooting, the teens 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, Jeffrey E. Campbell II and Donald J. Silmon, filed against the city in 2010. Court records indicate Silmon received a $65,000 settlement while Campbell received $10,000.