Malcolm Ferguson Hearing – January 28, 2021, 10 am Eastern

Transcript: Hearing on the Case of Malcolm Ferguson


  • Rapporteur Priscilla Ocen
  • Commissioner Mr. Hannibal Uwaifo
  • Commissioner Sir Clare Roberts
  • Mr. Seth Harris, attorney for the Ferguson family

Priscilla Ocen  00:00

My name is Priscilla Ocen and I’m the rapporteur for this hearing. I will be introducing our proceedings today. So let me first welcome you to the hearings of the International Commission of Inquiry on systemic racist police violence against people of African descent in the United States. These hearings are a process by which witnesses can present accounts of the unjustified killings and maimings of Black people by police officers in the United States before an international panel of human rights experts. We will now begin in the hearing of the case of Malcolm Ferguson. Presiding over this hearing is our Commissioner Sir Clare Roberts of Antigua. And Commissioner Hannibal Uwaifo of Nigeria. Witnesses, or the witness for this hearing, is attorney Seth Harris. There will be 50 minutes for this hearing, witnesses will testify, followed by a period of questions from the commissioners. I will interrupt very briefly at the 30 minute mark, as well as the 45 minute mark, as this is, again, a 50 minute hearing, giving some allowance for the technical delays. Okay. So commissioners Roberts and Uwaifo, I now present to you our first witness, Mr. Seth Harris. Mr. Harris, before your, before you testify, can you please confirm your name?

Seth Harris  01:33

My name is Seth Harris,

Priscilla Ocen  01:34

And do you promise that your testimony to the Commission of Inquiry will be true to the best of your knowledge and belief?

Seth Harris  01:41

Yes. Okay.

Priscilla Ocen  01:44

Mr. Harris, you may begin.

Seth Harris  01:48

Is there a specific question or you just want me to talk generally about the Ferguson case?

Priscilla Ocen  01:55

Generally about the facts and the legal process, that that you have undertaken to try to get some degree of justice for Mr. Ferguson and his family?

Seth Harris  02:09

Well, you know, this was a case that was tried several years ago regarding an incident in March of 2000. So we’re going back a long time. I try many cases, at least pre COVID. In a year, actually, I take more verdicts in any lawyer in the state of New York over the last seven years. And I tell you this, because, you know, I’ve tried so many police cases specifically. This one has always stood out in my mind is one of the most egregious cases because Malcolm was a very young, very young man and was ultimately shot and killed while being totally unarmed, and this is according to the shooter, officer Louis Rivera. Officer Rivera had, in essence, they were just patrolling an area in the Bronx and entered a building of which Malcolm and several of his friends were hanging out, but not doing anything suspicious or untoward. But there was a, there was a program, a neighborhood program back at that time in the Bronx, where officers would just generally patrol what they called high crime areas. But really, that was just more of an excuse for them to stop young men of color, frankly. And in any event, on this particular occasion, when the police came into the door of the building, on the ground floor, Malcolm, for whatever reasons, and of course, we’ll never know exactly why because he’s deceased, took off and ran towards the back staircase. He was pursued by officer Rivera, who grabbed him on the staircase and it was a according to officer Rivera, remember all of the testimony here, as to the facts of the occurrence. was through the defendant, officer Rivera since he was the only witness available to testify at this civil wrongful death trial in Bronx County Supreme Court.

In any event, Officer Rivera admitted to a struggle. He didn’t know at that time if Malcolm had any type of weapon or gun, but thought he had drugs. He didn’t see any drugs. He didn’t see Malcolm trying to sell any drugs. But the only form of suspicion that officer Rivera could testify to was that earlier he had somehow seen Malcolm walking into this vestibule of this building, which our recollection was the building where he lived, looking over his shoulder and walking sort of briskly, and that was the only reason according to Rivera, why he even entered the building in the first place. And then after this pursuit in the building and the struggle on the staircase, Officer Rivera said that Malcolm started to get his jacket off of his, off officer Rivera’s shoulder and thought he might be reaching for officer Rivera’s gun, but he never actually touched that gun. At which point officer Rivera took his gun out of his waistband. And he claims that the gun went off one time accidentally. And when he was questioned as to why it went off accidentally, his answer was in some substance that the trigger just pulled very quickly.

Of course, the weapon was subsequently tested by the ballistics lab. And it was found to have and, you know, folks, I’m telling you this from my pure recollection. I don’t have most of this file anymore in my office. But the facts are still so clear to me. The ballistics report showed that there was firmly 11 pounds of pressure on that weapon consistent with any regularly operated Glock as they call them. Here in New York, that was the weapon of choice for police officers. And the case came together more conclusive, conclusively, when the medical examiner came to testify. The medical examiner testified amongst other things that specifically, there was gunpowder residue in Malcolm’s scalp at his temple at a point where the gun had to have been at point blank range. Meaning that the barrel of the gun was touching Malcolm’s temple at the time that the trigger was pulled. That’s an important fact, especially since officer Rivera specifically testified that at the time, the gun was several feet away, and not anywhere near Malcolm’s head, and that the gun just simply went off accidentally. Naturally, the jury was enraged, a large verdict was awarded, trying to remember, it was approximately $3 million, $4 million. Remember, there was no conscious pain and suffering here, which is all that a jury can award money for in New York, conscious pain and suffering, not for the death itself. And then there was some additional award for Malcolm’s mother, who she claimed that Malcolm would support her with small, like $50 in cash weekly, from a carwash that he was working at, but there was no documents to substantiate those payments. But an award was given nevertheless, of about half a million dollars over the next 10 years for those payments, I believe something to that effect. And the case went up on appeal. That’s a general summary of the case. I’m not sure if that’s the information your counsel is looking for here.

Priscilla Ocen  10:21

Mr. Harris, here we will transition to our Commissioners’ questions. And perhaps that will be a good way to continue to explore the facts that led to the death of Mr. Ferguson. So I will turn it over to our commissioners, Commissioner Roberts and Commissioner Uwaifo. You’re welcome to ask questions to our witness, the attorney for Mr. Ferguson.

Sir Clare Roberts  10:52

Mr. Harris, Good morning. I noted that there was no prosecution, no indictment of officer Rivera for the killing. What were the obstacles to having the case investigated, criminally prosecuted, and some sort of accountability and sanction for the perpetrator of the killing?

Seth Harris  11:27

Well, that’s a great question I had, you know, back in those days anyway, in the year 2000. The system for district attorneys prosecuting police officers for the wrongful death of a citizen allowed officers to remain silent for, I believe, 48 hours, basically, while they got their story straight with the other officers that were present and such. And, you know, at that time, Rivera, when he was represented by counsel, my recollection was his take was, you know, the gun went off accidentally, and didn’t mean for this to happen. And you know, and that was sort of it, and they never prosecuted. After the civil trial, which was the only, in essence, prosecution of officer Rivera, but it wasn’t for any criminal punishment, only money, I took the trial transcript, and I forwarded it to the DA’s office outlining the difference in the testimony that he gave at the civil trial, versus his statement after the initial shooting. Specifically, with the ME’s testimony that I’ve outlined for you this morning, we claim that this could never have possibly been an accident, because the gun was at point blank range. And we had hard evidence of that, it wasn’t circumstantial. And I literally gave the entire appellate record, which is what we created, there was an appeal on this case, which I haven’t gotten into yet, but the entire appellate record to the DHS office, and I said the mother, we, are all ready, willing and able to come forward and give statements and explain the case, go through the evidence with you. And we just never got a response. There is no statute of limitations in New York for homicide, the ME’s report ruled that it was a homicide, not an accident. And they just never responded. And my recollection is is I actually floated this information on two separate occasions, several years apart. at the behest of what was then I think, was called the October 11 commission against police brutality. And again, no response. You know, as a civil attorney, I don’t have the power to compel a prosecution on a criminal level. I just don’t have that power. I did what I could, but I was always ignored. And to this very day, Officer Rivera, as far as I know, walks around with his gun and his badge on the streets here in New York City.

Sir Clare Roberts  14:49

I want to ask you, ask Mr. Harris, to what extent rendered in the case, I know in the civil side, do you think that race may have played a part? And obviously, Rivera shooting, taking such lethal action against victim?

Seth Harris  15:22

Well, you know, I I do think that race plays a role. And just in a limited, well, not limited, but the effect that Malcolm was a young Black man who, you know, we know, especially back at that time, we’re talking 20 years ago, were seriously profiled and targeted by the police, and stopped on a regular basis in the outer boroughs, especially the Bronx, and in Brooklyn. At that time, Officer Rivera was Latino. But that didn’t mean that he wasn’t recognizing the color of Malcolm’s skin. Of course he was. And this was happening in those days, on a daily, regular persistent basis. It seems to have gotten better, but it still happens, you know. And at that time, I think, you know, people like Rudy Giuliani, were encouraging officers to do this sort of thing, and in their eyes clean up the streets of New York, which, of course, is was their, I guess, justification, the, you know, the the ends justify the means or something? I don’t know. But there’s been a lot of civil cases since and forgot the name of the federal judge a few years ago that started mandating the whole chest camera system so that officers would be filmed by their own actions, to try to put an end to this, and I think that that’s actually helped a bit.

Hannibal Uwaifo  17:33

Thank you. I just wanted to find out, as you mean, whether the prosecutors, had the will, to prosecute this rather strange case. With all the evidence in the civil court, and not be good evidence to be used at a criminal trial. I just want to find out from you as an attorney. And then secondly, I hear that it’s somewhat also very strange to me that the district attorney will be appealing a civil case. already judged. They have failed to take on the criminal trial. Now there is a civil trial, which has been won, and damages awarded and is appealing, somewhat another strange event. I just wanted to know, this appeal is still on, if it is still on? What the damages are there to the family if it did? I just wanted to do this.

Seth Harris 19:02

Okay, well, we’re conflating two areas of the events here. And that might be my mismanage miscommunication, if which I apologize. The district attorney did not appeal the civil case. Those are two separate arms of law here in New York. So that the appeal from my civil verdict was brought by the City of New York and their legal office, which is known as the Corporation Counsel’s Office. That is a totally separate office from the district attorney’s office, which only prosecutes criminal cases. But testimony under oath is testimony. And so what I did was is to try to facilitate a criminal prosecution with the DA’s office, is I forwarded the transcript from the civil court proceedings to the district attorney with the hope that that was going to be enough for them to reopen that criminal case. Does that, Does that make sense? I’m not sure if I’m explaining this correctly for you.

Hannibal Uwaifo  20:28

Yes. Just a bit of sense. But I was wondering what’s the appeal about?  I see that the corporation or whatever it’s called. doesn’t think they don’t think that the court was right, or did they believe that it was wrong? Okay, he knows crime did not deserve compensation? Because I’m sorry, you must have been in possession of the reasons for that. And then lastly, I wanted to find out the appeal this topic of the compensation to deal with that? Thank you.

Seth Harris  21:06

Right. Well, you’re right. Those are good questions. The appeal was brought by the Corporation Counsel’s Office for the city of New York, simply to save the city from paying the award. And their arguments were not that this, that these facts were inaccurate somehow or did not occur. That’s not, that wasn’t the appeal. The appeal was, you know, whatever monies the jury awarded for pain and for suffering, were not justified, because Malcolm was killed instantly, and therefore cannot have consciously suffered any type of pain or suffering. So it was more on a technical level. And then, of course, the other piece of the appeal, there was two other arguments. One was that with regard to the monies that the jury awarded, for, Malcolm’s contribution to his household, from the earnings of the carwash could not be upheld, in that they weren’t substantiated with any, you know, paycheck stubs or any documents that would have supported those payments other than the mother’s testimony, that is that her son made those payments. And then the third argument on appeal, which, in some ways was maybe the most interesting from a legal perspective, was that the city of New York should not be responsible for the punitive damage award that the jury gave against officer Rivera directly. So too, and this is a subject we haven’t discussed yet this morning. But specifically, part of the multimillion dollar award here was for punitive damages, just to punish officer Rivera for what he did. And then the question is, well, you know, a police officer doesn’t have the means to pay millions of dollars. So what happens? Well, the question was a legal one, that the Appellate Division determined, the city of New York must pay those punitive damages on behalf of officer Rivera, since he was acting in his capacity as a police officer. So those were the general areas of the appeal. It had nothing to do with officer Rivera’s innocence or guilt in pulling the trigger on that day.

Priscilla Ocen  23:58

Thank you very much. I just want to give the panelists and our commissioners at 30 minutes, that we’re at 30 minutes. So we’ll we’ll have another 15-20 minutes of conversation.

Sir Clare Roberts  24:12

You mentioned that the targeting of black, young Black people in New York seem to have diminished somewhat over the years since the Ferguson case. Could you tell us what measures were implemented to improve the situation? For instance, you mentioned that body cameras had to be worn. I this mandatory police police in New York and what are the measures and while you are there? That is there now an independent complaint review entity board that will look at independently, will look at police, investigating police?

Seth Harris  25:08

Well, okay, you’ve asked two questions about, one with the body cameras and one with an independent body. I will tell you that I don’t, with regard to the cameras, I don’t know the specific protocols that are in current place now, other than that some officers wear body cameras. I don’t know that all officers are mandated to wear body cam. I just don’t know currently what that rule says. I can find out. And

Priscilla Ocen  25:46

Also, I just wanted to clarify, I think also, Commissioner Roberts was also asking what kind of reforms have taken place. You mentioned that there were routine patrols of residences, as part of, you know, this initiative to have more of a police presence in high crime areas, sort of this broken windows, form of policing, aggressive stop and frisks. Can you talk about any of the any, if there have been any reforms? And if so, can they be effective? I think that was the question that the commissioner posed?

Seth Harris  26:23

Sure. There were no correct, to just be, I want to be direct with my answer here. I am not aware with any specific remedial measures that were instituted following the Malcolm Ferguson case. As an attorney, one of the most frustrating things as a civil attorney is that in all of my trials, and this, of course, was one of the most significant ones, no remedial measures were put in place. However, the body cameras stemmed from other actions that were brought in federal court., this is, my, my case was in state court, and were unilaterally put in place by a judge. I think it was judge Sheindlin, I have to check, several years ago. Separately, there has always been a body called the civil complaint Review Board, which is a very small office or arm of the city of New York to house complaints that civilians can make against officers for, you know, being discourteous to assault or battery or anything of that nature. But they’ve always historically been tremendously understaffed. And even with our current administration, with de Blasio, our current mayor, who promised an expansion of this board, and people that had less ties to the police department itself, which, unfortunately, historically was always the case hasn’t really happened, you know.

And, of course, I’m speaking anecdotally from you just rarely see a finding where the review board substantiates the findings of the complaint. Now, they’ll often say, well, the witness didn’t show up for the hearing, or their testimony was incredible, or this or that, and rarely does any complaint lead to the punishment of an officer. And the other thing you must know is that under the civil rights law, up until recently, 50-b protected, the officers’ history of any type of punishments within the department was always maintained as confidential. Now, finally, that law has been recently changed and the information is discoverable. But that’s only like in the past year or so. So, you know, if there’s an officer had a history of, you know, beating people up on the street, it was never disclosed unless we were lucky enough to stumble upon it through some back channel. Now, it is discoverable. But, you know, since the pandemic, the courts have been virtually closed and we haven’t even had the opportunity to, in a good way exploit this new law. So we’ll see how that goes going forward, but cautiously optimistic.

Priscilla Ocen  30:06

Thank you very much. Mr. Harris. I just also note that we’re at 7:45, 10:45, which means that we have about five to 10 minutes remaining in this hearing,. Commissioners, if you have additional questions.

Hannibal Uwaifo  30:23

Thank you very much. Mr. Harris. I’d like to find out this, like, as in many other cases, the capacity of the prosecutor to do and undo, prosecute or refuse to prosecute. Is it in any way justified? Particularly, when we see the atrocities and the injustice, glaring injustices that have resulted, in particular against the background that so many of the civil suits have been won? Can we really justify the acts of the prosecuting authority? Is there any justification at all? For those sort of passes given to them? Or don’t you believe this is the time to change the laws that compels the prosecutor to do what is right?

Seth Harris  31:23

I’m not sure that I was able to hear your entire question, the way you’ve posed it. But I believe you’re asking, Is there any way to compel a prosecutor to do their job? Is that in essence, what you’re asking?

Hannibal Uwaifo  31:38

Yes, I will say, Mr. Harris, that considering the do and undo pass of the prosecutors and the attendant injustices that we have seen, particularly against the background of the various civil suits that have been won, against the refusal of the prosecutors to undertake criminal proceedings, is enough time that we check these laws and get laws that will compel the prosecutors to do the proper thing. Can we justify this? Why ask in any way? That’s what I’m asking?

Seth Harris  32:24

Well, that’s a that’s a great question. Under current law, prosecutors enjoy tremendous immunity here in the States. And their actions and choices to prosecute, are purely discretionary, based on their review of the evidence. And there is no mechanism currently to sue a prosecutor, for example, or compel them to prosecute a case that, you know, civil attorney or some of the general public thinks that they just chose not to do. So there is just there’s just no mechanism for it other than, other than to vote that prosecutor out of office when they’re up for reelection, which, you know, recently has occurred. And the prosecutors that have been coming into the position of power of late in the last several years have been much more inclined to go after the officers, frankly, than those of the past. But it’s not uniform by any means. It’s, you know, there are a few couple good cases. But generally speaking, I think that that officers are still given every benefit of the doubt, by the prosecutor’s office. Remember, prosecutors are just a higher level of a police officer. So they’re all on the same team so to speak. And we still don’t have a great independent body to investigate their misdeeds the way it should be. Unfortunately, that’s the answer.

Sir Clare Roberts  34:51

Mr Harris, we have heard in another model, in another case of this what appears to be an unholy alliance between the prosecutors and the police department. What you describe that would seem to be the case, in many instances in New York, correct?

Seth Harris  35:16

Unfortunately, that is correct. The lines are very blurry between the prosecutor’s office and the police department. Remember that if you’re a prosecutor, most of your evidence comes from the mouth of your police officers and their sworn testimony. And so they have to work in conjunction with each other to prosecute, you know, 95% of street crimes that are out there, because they just don’t have witnesses, or witnesses that will cooperate. And so they are relying on each other for their daily business, so to speak. So then when you have a situation where the officer becomes a defendant, the prosecutor’s office is resistant to do their job, just by the dynamics of the way, the way the system is set up. And that’s an inherent problem.

Priscilla Ocen  36:18

Okay, we are now at 10:51. And that concludes the time that we’ve allocated for the hearing. In the case of Malcolm Ferguson, we think our witness, Mr. Harris, especially given that looks like you’re moving around, thank you so much for being with us. So at this point, we will take a short break, about eight minutes. It’s now 10:52. And we will resume our next hearing with the case of Juan May at 11am Eastern, 8am Pacific. Thank you very much, Mr. Harris, and thank you, commissioners for your questions.

Seth Harris  37:06

Our pleasure. Thank you for inviting me to participate