Ousmane Zongo Hearing – February 1, 2021, 7 pm Eastern

Transcript: Hearing on the Case of Ousmane Zongo

SPEAKERS

  • Rapporteur Marjorie Cohn
  • Commissioner Mr. Arturo Fournier Facio
  • Commissioner Prof. Osamu Niikura
  • Mr. Sanford Rubenstein, attorney for the family of Ousmane Zongo

Marjorie Cohn  00:00

Good afternoon, everyone. Welcome to the hearings of the International Commission of Inquiry on systemic racist 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 individuals by police officers in the United States before an international panel of human rights experts. We now begin the hearing in the case of Ousmane Zongo. My name is Marjorie Cohn and I am the rapporteur for this hearing. Presiding over this hearing today is Commissioner Arturo Fournier Facio of Costa Rica. The witness for this hearing is Sanford Rubenstein. There will be 50 minutes for this hearing. The witness will testify followed by a period of questions from the commissioner. I will call time at the 30 — I will call time at the 30 minute mark and the 45 minute mark. Please excuse my interruptions. Commissioner Fournier, I now present to you the witness Sanford Rubenstein, Sanford Rubenstein, please confirm your name.

Sanford Rubenstein  01:24

Sanford Rubenstein.

Marjorie Cohn  01:27

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

Sanford Rubenstein  01:34

I do.

Marjorie Cohn  01:36

You may begin.

Sanford Rubenstein  01:37

My name is Sanford Rubenstein. I am a civil rights attorney who has represented countless victims who have suffered serious personal injuries as well as over 20 families in New York City and the New York metropolitan area who have lost loved ones as the result of excessive use of force by police, all victims of police brutality. At this time, I will be addressing the killing of Ousmane Zongo, a 35 year old wood maker from Burkina Faso in West Africa, who was on May 22 2003. shot four times at his place of business on the third floor of the Chelsea mini storage warehouse, a large Self Storage Facility in New York City. He died a few hours after he was shot. He was shot and killed by a young New York City Police Officer Brian Conroy, on the force for three years, who was part of a plainclothes New York City Police Department unit called the Staten Island Task Force. The six member unit was at the warehouse to make a bust on a counterfeit CD ring operating out of a locker at the Chelsea warehouse.

Zongo worked out of a different storage unit in the warehouse, repairing African artifacts, had nothing whatsoever to do with that counterfeit CD ring. In my testimony today, we’ll be drawing heavily from an account of his killing and the aftermath, including two criminal trials as well as my civil representation of his family. The book that I’m taking this information from is entitled The Outrageous Rubenstein: How a media savvy trial lawyer fights for justice and change. And the chapter is “Justice for Zongo.” What this book focuses on is the trial before the trial in the court of public opinion, which is so important when representing victims of police killings. Justice for Zongo, including not only obtaining a substantial damage award for his family, his wife and two young children back in Burkina Faso in West Africa. But most importantly, holding the police officer who killed him criminally accountable for his wrongful acts. Now to the facts as to what happened. Zongo, who is working in his storage locker apparently heard a commotion of the police raid of the counterfeit CD locker and went out into the hallway to see what was going on. According to an eyewitness Zongo saw a police officer, Conway in the hall dressed in street clothes with a gun in hand, apparently thinking he was about to be robbed. Zongo panicked and ran several 100 feet through a maze of corridors until he reached a dead end.

 At that point, police officer Conroy, who had been chasing him, fired five times four of the bullets hitting Zongo, taken by ambulance to St Vincent’s Hospital. Zongo died on the operating table several hours later, probably not even knowing that the man who shot and killed him was a police officer. The first action I took was to request then Governor of New York, George Pataki to appoint an independent prosecutor, to be named in the case. In my view, or at least in the view of public opinion, local district attorneys, no matter how well intentioned they may be, are handcuffed by the dependence on made members of the local police force as witnesses, and so many of their prosecutions that they well, they may be well intentioned, have a bias. And it’s better to have an independent prosecutor. In fact, the state of New York now requires, by law, the Attorney General to act as an independent prosecutor, in all cases in which a civilian has been killed by police. Back to the case, to keep the public outcry alive over what happened to Zongo. A demonstration was organized outside the Chelsea warehouse, where it happened. I would like you to pull up now photo one, which shows the speaker myself at that demonstration, surrounded by a number of leaders from the African community and New York City. That’s possible. Can we pull up photo one?

There I am speaking, there is a large crowd gathering right outside the warehouse. And you can see right up front, some of the leaders from the African community who were helping to fight for justice for Zongo. Okay, thank you.

To keep the public outcry alive, over what happened is ongoing. This demonstration occurred. And it’s impossible to overstate the importance of what I call as mentioned earlier, the trial before the trial in the court of public opinion. As a trial lawyer for over 40 years, I have learned never to underestimate the influence of public opinion. Not only does it have an inevitable subtle effect on a jury pool, which is drawn from the public, but the sway of public opinion, also, while it’s not supposed to, very well can affect a prosecutors determination as to whether to put a case against the police officer before a grand jury and indict the officer for a crime. As the demonstration was underway, a TV reporter covering the event asked if he could film the actual scene of the shooting. I immediately agreed not only for him, but for all the media present. So two dozen cameraman photographers and reporters all follow the security guard from the storage facility, tracing the zigzag path that Zongo would take it as he was fleeing this plainclothes police officer with gun in hand. It was apparent Zongo was running for his life. Finally, we arrived at the dead end where the shooting occurred. The first bullet holes were in the wall. This made the killing of Ousmane Zongo, the lead story in the evening news in New York City and in fact, covered by press all over the world. An important aspect when a lawyer wants justice for his the family of his client. During the investigation of what happened, we uncovered a witness to the killing. I promptly promptly turned the witness over to the New York District Attorney’s Office, who is now conducting a criminal investigation of the actions of police officer Conroy. I next hired, Dr. Joseph Cohn, a pathologist to conduct an independent autopsy, as well as an engineer to inspect the lighting in the warehouse, which turns out to be absolutely fine. At times, the efforts of a lawyer representing a victim’s family goes far beyond the legal work. I did as requested, accompany Zongo’s remains from New York City to Burkina Faso in West Africa. At the burial prior to which I met his widow and his young children, and I would not like to ask if you go to photo three, you can see the remains of Zongo in a coffin, his brother, his wife, his little child, one of them and his other child, and myself standing at the airport with a coffin had been unloaded.

Thank you at the funeral service I promised to get justice for Zongo. Actually, it was the burial. Next, the family of Zongo wanted to visit the site of his killing. Only after an intervention with the State Department by then Brooklyn congressman Ed Townes was his widow and brother permitted to come to New York. His children were denied a visa, the disappointment of myself and his family. The jurisdiction for criminal prosecution at that time, was with the Manhattan district attorney Robert Morgenthau. At a meeting with him, with the widow, telling me…was present. He told us that in all likelihood, he would be convening a grand jury to hear evidence regarding this killing. It is, in my opinion, always a good idea to meet if possible, with the head of a prosecutor’s office, in this case, an elected district attorney with victims families, so that there’s a human face placed on the loss of that family of their loved. While in New York, Zongo’s widow and brother retrieved this property from his locker at the warehouse to return any items Zongo was working on at that time, the time of his death, to their rightful owners. It was also important to them to be at the place the actual place where he died. The Grand Jury promised by Morgenthau in April of 2004, returned an indictment of second degree manslaughter against police officer Brian Conway.

The first criminal trial in New York State Supreme Court began in February of 2005, and ended in a hung jury. According to press reports, the jury had voted 11 to one for conviction. Then in the final tally, before the judge declared, the jury hung, when it became clear no resolution was going to be made. one juror abruptly switched sides and voted to acquit. So the vote was 10 to two for conviction. A unanimous verdict is required for a conviction in New York State courts. So the question then became would the case be retried? Prosecutors quickly made public the decision to retry Conway and at the request of Conway’s defense team, the second trial would be a bench trial rather than a jury trial. In New York State, a defendant in state court has the unilateral right to waive a jury and have a judge determine his fate. So the judge not only makes decisions regarding facts, and applying the law, but also makes a determination regarding guilt or innocence. Interestingly, in the federal system, such a waiver of a jury trial can only occur with the consent of the prosecutor. That’s not the case in state court in New York. So now it was a judge, who was to make the decision as to guilt or innocence of police officer Conway. The defense also asked the judge to consider at this trial the additional charge of criminally negligent homicide, which is a lesser offense than second degree manslaughter, which the grand jury had indicted Conroy of.

Clearly the defense was gambling, they, by giving the judge a middle road to take. I believe they hoped to steer the judge away from a conviction on a more serious secondary manslaughter charge, which he was indicted of, which could lead to a stiff jail sentence. At the same time, the move carried the risk that Conway might be convicted on the lesser charge, whereas he otherwise might have gotten off completely. On October 21 2005, the Judge Robert Strauss after a second trial, announced his decision. Brian Conroy, the police officer who killed Ousmane Zongo, was acquitted of secondary manslaughter, but found guilty of criminally negligent homicide. It’s important to understand what the judge said. And at sentencing, the judge said not just in this case, but in any case, if a defendant receives a non jail sentence, that doesn’t mean that the defendant somehow has had his actions vindicated or minimized. Nor does it mean in any way, the terrible result that occurred to the victim. If a defendant receives a jail sentence, that can never be the equivalent of the life that was taken, because there’s no way to measure or equalize time against life.

He continued, we start out with what seemed to be a well intentioned police officers stress it was one who was insufficiently trained, insufficiently supervised and insufficiently led. The judge went on to blast in New York City Police Department for their aerosol conduct during the raid, describing utter confusion and lack of leadership on almost every level. And he continued. I think there is a lot of blame to go around in this case. But again, I’m not here to assess individual blame or blame except that of the defendant. But he’s a product of his training, and he’s a product of his leadership. There was one target, the target was arrested, and yet the first thing he does referring to Conway, when he sees Mr. Zongo, was to draw a service revolver is semi automatic pistol and pointed at him. Is this training. Is this what he’s taught to do? It is appear, it would appear, the answer is yes. I’ve given this matter a lot of thought the judge said as far as whether you should go to jail or not. And the judge said it last have ultimately concluded that you will not go to jail. I think you should be placed on probation. After sentencing, Salimata Sanfo, the widow of Ousmane Zongo had me issue a statement on her behalf. And you might want to go to photograph for which was the recital of her statement before the press after the sentencing, photo four.

Thank you. The widow of Ousmane Zongo. This was her statement. The widow of Ousmane Zongo feels strongly that the conviction of police officer Brian Conroy was what was most important, because it demonstrated that Ousmane Zongo did nothing wrong and was a victory because the fall for his death was clearly found to be with police officer Brian Conroy. While she is disappointed that he did not receive time in jail, she hopes the conviction of police officer Conroy for criminally negligent homicide will stand as an example, to police offices all over the country, that if you are a police officer, and you wrongly kill someone, you will be held accountable criminally. She believes the conviction was a victory for justice. I would add just as important as the conviction and there also was a monetary award in this case of $3 million for the widow and her children. We’d also been successful in getting the NYPD to change their policies to the better thanks to the aggressive attempt to keep the Zongo case in the public eye and to the powerful message sent by both the judge sentencing statement at Conway’s trial and the city’s financial statement with the Zongo family. The police were forced to take a long hard look at the way the Chelsea mini storage raid had been conducted, including the kind of training Conway received and his fellow plainclothes police officers received beforehand.

As a result, the police department began a serious overhaul of their entire plainclothes operation, a point noted by the New York Times in their article about the Zongo settlement published the day after the agreement was reached. Quote, in the wake of Mr. Zongo’s death the police department reinforced training for plainclothes police officers department wide, making certain that anyone assigned in plainclothes underwent a rigorous training program before being deployed, said Paul Brown the department chief spokesperson. I strongly doubt this training would have been implemented without a full court press in the media on behalf of the family of Ousmane Zongo. In the future. There were new policies hopefully, that will prevent out of control, plainclothes raids, like the one that cost Ousmane Zongo his life, in which case, this good man, this good family man would not have died in vain. That concludes my testimony.

Marjorie Cohn  19:31

Thank you very much, Mr. Rubenstein. Now, we will hear questions from our commissioners. And I wanted to note that Commissioner Osamu Niikura has joined us as well. So questions now from the commissioners, please.

Arturo Fournier Facio  19:52

Yes, thank you very much. We are quite pleased to be of assistance and to be Part of the International Commission. I wanted to ask you a question. Also regards with the next case we have today. What was the language spoken by Mr Zongo?

Sanford Rubenstein  20:17

Mr. Zongo’s, when he was alive. I don’t know the dialect, but it’s a dialect that is used in Burkina Faso. When he came to New York with his brother, they both spoke that dialect as well. And fortunately, we had translators from the Burkina Faso community in New York with them to help translate. As a matter of fact, two of them accompanied me to Burkina Faso with the body for its burial.

Arturo Fournier Facio  20:56

Yes, I’m asking this because it is very important to for the police officers to know whether they could communicate well with the victim in that moment, if they are understood or not.

Sanford Rubenstein  21:14

I would think because this is a plainclothes police officer with a gun in his hand. And there were witnesses who said that he didn’t identify himself in any way as a police officer. So how was Mr. Zongo to know this was a police officer. So we believe he never knew that the man that killed him, was a member of the New York City Police Department.

Arturo Fournier Facio  21:39

Yes, yes. I have read that in your report. Also, that means that he was not asked to, to speak with an officer, or he was not advised that he was subject to a police search or something of the sort. Correct. So that he couldn’t know if that if there was an imminent threat by a police or by a burglar.

Sanford Rubenstein  22:12

We believe he believed a man with a gun was about to rob him. And that’s why he ran.

Arturo Fournier Facio  22:21

Did Mr. Zongo have any sort of weapon with him?

Sanford Rubenstein  22:27

No, he was an artisan. He was repairing artifacts from West Africa for artists. And that’s the work that he did. And at the time that he went out to the, to see what was going on when he heard the commotion. He was unarmed. And he saw a man with a gun. He thought he was going to be robbed, we believe, and he ran like anyone else probably would do. It was a zigzag through corridors of lockers and ended up in a dead end. And when we went there, we saw bullet holes in the wall at that dead end. So –

Arturo Fournier Facio  23:06

Did he did the police had any search warrant from a judge? Or did he told the, sees that there was a no knock warrant?

Sanford Rubenstein  23:21

The police would not there with regard to anything that Mr. Zongo was doing. The police were at the warehouse to conduct a raid which they probably had a warrant for on a counterfeit CD ring that was operating out of the same warehouse. The raid had nothing to do with Mr. Zongo whatsoever.

Arturo Fournier Facio  23:43

He had a body camera?

Sanford Rubenstein  23:48

At that time body cameras were not mandated by the New York City City Council. So at that time, there was no body camera.

Arturo Fournier Facio  24:04

I am sorry, Professor Niikura, I must keep too many questions. Do you want to pose some questions or shall I continue?

Marjorie Cohn  24:21

Commissioner Niikura? Okay, thank you.

Osamu Niikura  24:24

Okay. Thank you. No, I have no special question. Please continue.

Arturo Fournier Facio  24:36

All right. Thank you very much. Do we have time? Rapporteur?

Marjorie Cohn  24:44

Yes, we have plenty of time. We are at the 25 minute mark. So we still have 25 minutes left in the hearing. So continue, please. All right.

Arturo Fournier Facio  24:55

Thank you very much. Attorney Rubenstein. You have hear, have had hearings with administrative officials of the city of New York.

Sanford Rubenstein  25:12

With regard to there were two trials. The first trial was a jury trial. The second was a non jury trial. There were no proceedings before any administrative agency. The only other court that was involved in this case was the federal court in which we bought a brought a civil action for damages against the city of New York and the police officer, and the New York City Police Department. For this wrongful act, that matter was resolved in a settlement with the City of New York, in which $3 million was paid to the widow and to the children. And I might add that there’s a problem that to this day exists, because the money was placed in trust for the two children, they were young. Once they reach the age of consent, which is 18, they’re permitted to take that money from the bank account in which it was placed by the federal judge, and take it home. The problem that I am having, and I can’t tell you how many hours I’ve spent trying to resolve this is that due to certain financial regulations and banking regulations, the banks will not release the money to a bank in Burkina Faso, I need actually and perhaps this opportunity to testify will help me in getting an international banking lawyer to give me some help to get this money, which is in New York bank accounts to banks in Burkina Faso, which to this day, so long after this case was settled. It is not been possible to do of course, we had to wait until the children were 18, which is rather recently, but both reached the age of 18, which they both have now. But if there is someone out there who has expertise in banking, and banking laws, perhaps they can reach out to me Sanford Rubenstein. And my phone number is I’ll give you my cell phone, my office number 718-522-1020. Please chat to me, because it’s been a struggle to try to get this money which is in the bank for the children to them in Burkina Faso.

Arturo Fournier Facio  27:23

So far, none, not the children, not his wife has been able to receive it.

Sanford Rubenstein  27:31

His wife did receive a settlement because she was an adult. Children’s had to be put in a trust account based on on the law in New York until they were 18. There’s a problem now getting the money transferred to Burkina Faso.

Arturo Fournier Facio  27:47

Right? Did you cut in sort of response from the police department or any law enforcement agent, agency, the major office or any other authority whatsoever from New York explaining what had happened?

Sanford Rubenstein  28:04

Other than the spokesperson for the police department, I believe that was gentlemen, let me find that, the chief spokesperson, Paul J. Brown. The police department did not make any official statement regarding this case. But they did reflect on the fact that the police department after this had happened because it happened had reinforced its training for plainclothes police officers department wide, making certain that anyone who was assigned in plainclothes underwent a rigorous training program before being deployed. That was the statement of the police department. And the only comment officially made regarding this matter by the police department.

Arturo Fournier Facio  28:59

You try to speak with them or attain any other response but for that?

Sanford Rubenstein  29:04

Well as a defendant, New York City Police Department, I wasn’t permitted to speak with them directly other than through counsel. I think that what’s really important to victims is to try to get some change so that what happened to their loved one doesn’t happen to another. We see here some change. Was it enough? I don’t think so. We’ve had since then, a number of killings in New York, by police officers of individuals. But perhaps there is some solace to know that the training of plainclothes police officers was improved and made more rigorous as a result of this case.

Arturo Fournier Facio  29:46

Have you received an explanation whatsoever about this law enforcement, enforcement misconduct, or the use of lethal force by the police department?

Sanford Rubenstein  30:00

Well, it was a use of force that that was simply criminal, as found by the courts. So the police department generally does not comment in New York, other than what they said regarding these matters.

Arturo Fournier Facio  30:29

And what about passing to the other side of the judicial operators? What suit to dispose was there from the DA, the prosecutorial side of of justice?

Sanford Rubenstein  30:45

Well, the DA did their job. And they convened the grand jury in this case, they got an indictment, the second degree manslaughter, a very serious crime. Ultimately, a judge decided that this was criminally negligent homicide. So to some degree, to some degree, the system worked in terms of guilt of this police officer. But let me point out something else, which I think is very significant. I’ve represented over 20 families in New York and in New York metropolitan area, in cases involving police killings. Not one of those police officers has gone to jail, not one, including Brian Conroy. The only case in which I represented a victim and thank God he lived, was the case of Abner Louima, tortured by police in a Brooklyn precinct house. And that case prosecuted by the federal government, the Justice Department, the police officer, was saying, after pleading guilty after lengthy trial, the police officer was sentenced to 30 years in jail, and he is still in jail serving time.

Arturo Fournier Facio  31:58

Let me go a little bit back. He was trial by jury or by the judge?

Sanford Rubenstein  32:05

Which case, Louima?

Arturo Fournier Facio  32:09

No, how he was prosecuted. The officer Conroy.

Sanford Rubenstein  32:14

Oh, in this case, first trial was a jury trial. And I indicated that according to press reports, the jury was tempted to go for conviction, but you need a unanimous jury. Bench in the second trial, the trial, he opted for a non jury trial. And as I explained, the defense in New York in any criminal case, has the right to waive a jury. That’s different than the federal system, by the way, and the federal system. In order for a jury to be waived in a criminal trial, the prosecutor must consent. So there’s a difference in our two systems of justice, ie federal and state and in the state system, a defendant can unilaterally waive a jury trial. And the federal system, the prosecutor must agree.

Arturo Fournier Facio  33:04

All right. Now going out of court, how was it covered by the fourth power, as we call it in Costa Rica, the press? I’ve seen three articles that you sent, but in general terms was was the press objective?

Sanford Rubenstein  33:29

I would say the press was not only

Arturo Fournier Facio  33:37

Sorry, I couldn’t your voice cut a little bit. The Press what?

Sanford Rubenstein  33:43

The press covered this case extensively, initially, when it happened. And then subsequently, when the widow came to New York, there was substantial press coverage for going to the scene of where it happened. And there was substantial press coverage during both trials regarding what happened. So this was a case that was well publicized by the New York press. And I believe that’s important for a number of reasons, when a case is in the press, prosecutors who have to make the decision whether to put a case before a grand jury or not, are more aware of it and aware of the public’s interest in the case. And I think that that’s something that ultimately helps in getting justice for victims.

Arturo Fournier Facio  34:31

I’ve seen that in many cases, police tend to alter their explanation of the facts occurred.

Sanford Rubenstein  34:39

Well, there wasn’t much. There wasn’t much that – And you know, it’s interesting also, because police unions have their representatives, very outspoken on behalf of the police. And we see that in New York in particular with the Police Benevolent Association. The only ones that victims have are the activists. And the activists play a very important role in bringing attention, media attention to what happened, what what has happened, marches, demonstrations, all have very significant to bring press attention and ultimately the prosecutors attention to what’s happened. And that’s what happened. In this case, there was a march, there was the demonstration in front of the warehouse. There was a lot of public interest when the body was sent from New York to Burkina Faso, there was a lot of press interest in that. And a one of the funerals that was held a funeral was actually held in New York at a mosque had a lot of press attention, as well. And the burial also was reported by the New York press. So this was a case that was well covered by the press. And I think that that’s something important that when a tragedy like this occurs, it isn’t, so to speak, swept under the rug.

Arturo Fournier Facio  36:03

Did the officer, officer Conroy gave his version of the facts? And it was according to what really had happened?

Sanford Rubenstein  36:13

Clearly, they tended to convict as well, as the judge found that this police officer violated the law. That was what was important regarding this case.

Arturo Fournier Facio  36:25

No, but I mean, the officer, officer Conroy, did he spoke, spoke about what has happened?

Sanford Rubenstein  36:34

It was no public — His lawyer spoke for him

Arturo Fournier Facio  36:40

His lawyer. So do you think that he has been held accountable or not?

Sanford Rubenstein  36:50

Well, we didn’t get full justice. Conroy did not go to jail. So we got some justice by having him found guilty, as the widow said, demonstrating that her husband did nothing wrong, which he did not do anything wrong. So we got a measure of justice here, which is a lot more than some expected when the shooting first occurred.

Arturo Fournier Facio  37:17

Right, so the last question, this is, from a political point of view. I have heard President Biden is speaking about racism, among other issues that attracts our attention. Do you think there there is going to be a change for the good in the US regarding these matters?

Sanford Rubenstein  37:40

Let me be — something that I’ve been speaking about for quite some time. When Trump was elected president, Sessions was the Attorney General. They, the Justice Department stopped doing what’s called pattern and practice investigations of police departments in which there was police brutality. Under the prior presidents. these investigations resulted in change in police departments in training and the manner in which police departments train their new police officers. That all stopped. The consent decrees that were entered into, I believe helped to try to address the problem of police brutality. But under Trump, they were totally eliminated and only the Justice Department can bring lawsuits in federal court regarding patterns and practices of police brutality and police departments. So if the Justice Department stops bringing those lawsuits, which is what happened under President Trump, then a tool that’s utilized to try to address police brutality is gone from the toolbox. I’m hoping and asking that the Biden administration, that Justice Department begin these pattern and practice investigations and ultimately lawsuits in federal court so that the tool of either consent decrees or having a federal judge appoint a monitor to oversee a police department is back in use to try to get some change in police departments that have a history, a record of police brutality.

Marjorie Cohn  39:18

Do you have any questions? Commissioner Niikura. Would you like to ask any questions of the witness?

Osamu Niikura  39:35

I have no questions. Thank you.

Marjorie Cohn  39:39

Okay, I have a couple of questions myself. First of all, Mr. Rubenstein, what is the use of force policy in the New York Police Department, in other words when are officers permitted to use deadly force?

Sanford Rubenstein  39:55

Deadly force is permitted when the police officer believes he or a fellow police officer is the subject of a risk that they are going to be either killed or injured.

Marjorie Cohn  40:05

Is that a subjective belief? Or is that an objective belief?

Sanford Rubenstein  40:09

Well, ultimately reasonable, ultimately the determination is made by by a jury based on testimony. So that the question becomes is that an appropriate manner in which to justify a police officer using deadly force? In this case, it was clear that there was absolutely no justification for the use of deadly force with regard to the killing of Ousmane Zongo.

Marjorie Cohn  40:38

Okay, and could you explain please to the commissioners, why a defendant, an ordinary defendant versus a police officer defendant would waive the right to a jury trial and try his case to a judge. Do you think different considerations go into a police officer defendant waiving jury versus a non police officer defendant waiving jury?

Sanford Rubenstein  41:07

Well, I’ll tell you there’s public opinion that juries have difficulty convicting a police officer, so that it might be beneficial for a police officer not to waive the jury, which is not what happened in this case, of course. In this case, the defense lawyers, and I must say the defense lawyers for these police officers in these trials are some of the best lawyers out there, most competent trial lawyers. So they must have made a decision. I’m only speculating, in this case, that since the jury was tending to, for conviction of this police officer in the first trial, they’re better off going with a judge only trial. And they know who the judge is because the case is then appointed to a judge. So they make a determination perhaps based on the judges past record, his political leanings, who knows what, but any defendant in New York has the right to waive a jury and have a judge only trial.

Marjorie Cohn  41:58

So do you think that a police officer defendant would be more likely to waive the right to a jury trial and try his case to a judge, then a non police officer defendant?

Sanford Rubenstein  42:09

Perhaps, but I really think what’s really important is each case and the facts of each case, and and that those decisions be made based on that.

Marjorie Cohn  42:23

Thank you, Commissioner Fournier or Commissioner Niikura, o you have further questions for attorney Rubenstein?

Osamu Niikura  42:41

No, thank you.

Marjorie Cohn  42:49

Commissioner Fournier, do you have further questions?

Arturo Fournier Facio  42:54

I think not anymore. Thank you.

Marjorie Cohn  43:00

Okay,

Arturo Fournier Facio  43:01

Just, just one in general terms. You said that there was a good change in the behavior of the New York Police. Do you think that it has been a sustained attitude after this case? Has there been a reduction of use of deadly force use?

Sanford Rubenstein  43:27

I don’t think this case, as described by a police spokesperson, that more rigorous training of plainclothes officers occurred after this case can be quantified in any way. But this remains in New York City a problem with police brutality, we’ve seen that with regard to the demonstrations, led by Black Lives Matter, for example, demonstrations in New York, in which people were wrongly arrested, in which people were assaulted by police. So to say that, that there’s been a change in New York for the better since this happened. I’m afraid I can’t say that.

Arturo Fournier Facio  44:12

Or there are some questions by the public attending in this hearing. Did he went back to work with the police force? Or did he receive a pension?

Sanford Rubenstein  44:25

He retired…he has his pension because I don’t believe police officers lose their pensions. Even when they convicted but he may have retired before he was convicted. So I really am not clear in my memory. This did happen 15 years ago.

Arturo Fournier Facio  44:42

Right. But he didn’t work for the police anymore.

Sanford Rubenstein  44:45

I don’t believe so.

Arturo Fournier Facio  44:48

Thank you.

Marjorie Cohn  44:50

There are five minutes remaining in this hearing and I wanted to ask attorney Rubenstein, what were the changes in training that plainclothes police officers receive from New York police department as a result of the Zongo case.

Sanford Rubenstein  45:10

My information which comes from the spokesperson simply was that their training would be more rigorous. The specifics with regard to that training, being more rigorous were not outlined by the police department.

Marjorie Cohn  45:27

Thank you.

Arturo Fournier Facio  45:28

One last question. I have been defending Human Rights of Man all my life. And I’m quite pleased to be from a country, Costa Rica, that has promoted an inter American covenant of human rights, the Pacto de San Jose. And we also hold the inter American human rights court here in Costa Rica. But the United States is not part of this system. What do you think about trying to ask the US government to be a part of this so that you could present also cases before the inter American human rights court?

Sanford Rubenstein  46:15

Well, now that we have a president, President Biden, who has committed to make whatever efforts are necessary to try to end the senseless killing of victims by police in this country, perhaps that’s something that this administration should consider. Certainly, under the Trump administration, I doubt very much if it even would have been considered. But now that we have Biden as President, I am hopeful that he would consider such involvement in his committed effort to address the issue of police brutality and racism in this country.

Marjorie Cohn  46:58

Thank you, Attorney Rubinstein. Commissioner Fournier or Commissioner Niikura, do you have any further questions of this witness?

Arturo Fournier Facio  47:10

For me, that will be all.

Marjorie Cohn  47:15

Commissioner Niikura. Do you have any questions of this witness?

Osamu Niikura  47:19

Oh, yeah. Thank you. May I ask you the situation, is it improving or not? And by what, What that means improving?

Sanford Rubenstein  47:31

I’m sorry. Could you repeat that?

Osamu Niikura  47:35

Do you think the situation is improving? But because your case is very 15 years ago?

Sanford Rubenstein  47:45

In the last 15 to 20 years, I’ve represented over 20 families whose loved ones have victims here in New York City of police killings. That’s definitely not an improvement. And unfortunately, there is a reality in the community with regard to the fact that wrongful killings of innocent victims, particularly Black and brown people in this city is something that is feared.

Osamu Niikura  48:20

Thank you.

Marjorie Cohn  48:23

Any further questions from either of the commissioners? Okay, this concludes the hearing in the case of Ousmane Zongo. We will now have a short break. hearings will resume on the hour with the case of Antonio Garcia. Thank you.

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