The video shocked and offended many across the world, but it's not enough to convict two Buffalo police officers, local defense lawyers said this week.
While the recorded images of officers shoving a 75-year-old protester struck many as slam-dunk evidence, attorneys with a history of successfully defending police officers think it falls far short of what the law demands for a conviction.
One of them went so far as to suggest the charges could be dismissed short of an indictment.
"It might not even get out of the grand jury," said Rodney O. Personius, a criminal defense lawyer. "I think there's an opportunity to take this to a panel of citizens. You might even have your client consider testifying before the grand jury."
If there is an indictment, Personius thinks the case will almost certainly go to trial given the consequences facing the officers – up to seven years in prison and termination from the force.
“A trial is inevitable," said Terrence M. Connors, who won acquittals in three recent police brutality trials. "There is too much at stake and no real ability to resolve this case without a trial.”
When you talk to Connors and Personius about the evidence against Officers Aaron Torgalski and Robert McCabe, they will tell you, yes, the video is disturbing to look at, but it's only one part of a larger story.
Viewed tens of millions of times, it shows the two officers pushing Martin Gugino and walking past him as he lay on the ground, blood seeping from his head. The officers were part of a Buffalo police unit clearing the crowd after a peaceful protest.
Shot by a WBFO reporter, the video went viral, prompting reaction from across the world, most of it critical of the officers.
For lawyers who defend police, it doesn't matter what critics think. What matters is what a jury, after hearing both sides, might think.
They also believe that, in the end, the case will come down to one single question: What were the officers thinking when they pushed Gugino?
"Where was the intent to injure?" said Timothy W. Hoover, a Buffalo attorney who won acquittal for a Buffalo police officer two years ago. "Looking at the video, I don't see any improper actions or any intent to injure."
Like Hoover, Connors and Personius think the case will rise or fall on how a jury sees the officers' state of mind. They also expect defense lawyers Joseph M. LaTona and Thomas H. Burton will ensure that a jury hears the full story of what happened that day, not just what was captured on a reporter's cellphone.
"The focal point of the trial will be the intent of the officers at the time of contact with Mr. Gugino," Connors said. "Was it their conscious objective to cause physical injury to him, and can that be established beyond a reasonable doubt?”
The defense will likely argue that Torgalski and McCabe were following orders to clear Niagara Square of protesters when Gugino approached, blocking their path.
And to prove they were simply doing their job, their lawyers may go after Gugino, a well-known activist.
By now, the defense and prosecution are investigating both the officers and Gugino, delving into their backgrounds, looking into everything from friends and family to comments made on social media.
"A witness' credibility can be put at issue," Hoover said. "As a result, attorneys always want to know about a witness' history, character and what they were doing leading up to the incident."
Personius thinks Gugino's actions that day should be scrutinized as much as those of the officers charged with assault.
"Why does he approach the officers the way he does?" he asked. "Why is he carrying a phone?"
From the start, Gugino's friends, many of them fellow activists, rallied around him, dismissing suggestions that he was an agitator looking for a fight.
Even as he laid in a hospital bed recovering from his head injury, Gugino found himself the target of a tweet from President Trump suggesting he's a member of Antifa, the word used to describe a group of militant anti-fascists.
"Oh, that's ridiculous," Victoria Ross, executive director of the Western New York Peace Center, said of Trump's tweet. "They are just plain making things up."
Torgalski and McCabe are due back in court on July 20 for a preliminary hearing, but that appearance could be canceled if prosecutors convene a grand jury, which have been on hold because of Covid-19, in time to seek an indictment. Even without an indictment, it's possible the pandemic might lead the court to delay the hearing.
Despite those delays, the three defense lawyers agree that, barring a dismissal of charges, the case will go before a judge and jury, a sentiment one of the officer's lawyers echoed this week.
"This case is going to be tried in a court in front of someone wearing a black robe," said Burton, the lawyer representing McCabe.
Erie County District Attorney John J. Flynn declined to comment for this story.
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