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Cops accused of BB gun assault going to trial nine years later

Even now, only a handful of people know for sure what happened on that May night eight years ago in the back seat of a Buffalo police cruiser.

One of them, a Buffalo teenager who was handcuffed at the time, says Officer Raymond Krug shot him in the leg with a BB gun and then tried to shoot him a second time in the groin.

He says another officer, Joseph Wendel, egged Krug on.

With jury selection starting Wednesday, Wendel and Krug will go on trial in what federal prosecutors are calling an important civil rights prosecution, a case of excessive force by three on-duty officers.

The trial, in the making since the BB-gun incident in May 2009, will also focus on that third officer, Gregory Kwiatkowski, a retired Buffalo police lieutenant and the first officer on the scene that night.

Kwiatkowski, as part of a misdemeanor plea deal, admitted using unnecessary force on the four teens and agreed to testify against Krug and Wendel.

On hold for more than a year, the trial before U.S. District Judge William M. Skretny begins at a time when police shootings and police relations with African-Americans are front page news.

The four teens arrested that night, now in their 20s, are black. Krug and Wendel are white.

"We look forward to finally having the opportunity to confront the government's evidence in a meaningful way," Rodney O. Personius, Wendel's defense attorney, said last week.

The trial may 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, the teen shot in the leg, received a $65,000 settlement while Campbell received $10,000.

In the civil suit, Silmon said it was Krug who fired the BB gun and that Wendel was there, watching and laughing.

From Day One, Krug has denied the allegation.

"As we have maintained consistently throughout the proceedings, he did not shoot anyone with a pellet gun," said defense attorney Terrence M. Connors.

During the trial, Krug and Wendel are expected to counter with evidence of the teens' 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.

In the end, 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.

Connors and Personius, in court papers, have made it clear they may call the two shooting victims to testify in order to offer evidence of their clients' state of mind. They also claim both Buffalo and Cheektowaga police were on the look-out that night for pellet gun shooters.

Prosecutors declined to comment on the upcoming trial but, in pre-trial briefs, outlined what they think happened to Silmon, identified in court papers as D.S., that night on Treehaven Road.

"A BB lodged in D.S.'s lower leg in the first shot, and not only did Wendel fail to stop Krug from shooting D.S. with a BB gun the first time, he encouraged Krug to shoot D.S. a second time," prosecutors said in their court papers.

Assistant U.S. Attorneys Mary Catherine Baumgarten and Aaron J. Mango are leading the prosecution.

Investigated by the FBI and indicted by a grand jury in 2014, five years after the incident, Krug and Wendel were initially charged along with Kwiatkowski. 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." Kwiatkowski retired in 2011 with three separate cases pending against him alleging improper conduct.

Kwiatkowski, who pleaded guilty in the BB gun last year, is expected to testify about what happened that night eight years ago and possibly a new piece of evidence, as well.

Prosecutors said the new evidence – believed to be private comments between Krug and Wendel – arose from a "conversation in the hallway," but neither side has commented on what was said or who said it.

A legal fight over the hallway conversation delayed the trial for several months and led to a federal appeals court ruling allowing the conversation to be entered into the case as evidence.

In short, Kwiatkowski can now testify about that conversation.

Krug and Wendel  are currently suspended with pay. If convicted, they face up to 10 years in prison.


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