An Enigma

December 24, 2008

Weighing Guilt When the Man on Trial Did No Killing

By KAREEM FAHIM

In the glare of public scrutiny, juries in Brooklyn and the Bronx started deliberations on separate cases last week, considering the same shocking charge — the murder of a police officer.

That was not all they had to contend with: Prosecutors in both cases were asking for murder convictions for the defendants who, the authorities acknowledged, were not the men who fired the fatal shots.

In deciding whether to convict, the jurors in Brooklyn repeatedly asked for readings of the law, and explanations, in plain English, for what it meant to be an accessory to murder.

In the Bronx, jurors sifted through all of the evidence over and over, to try and divine whether the defendant in their case knew that an acquaintance of his — the man who killed the officer — was carrying a gun.

In both cases, jurors had to be sure that while the defendant did not pull the trigger, his role in the crime was enough for a murder conviction.

In the Bronx case, the jury decided that the defendant, Lillo Brancato Jr., a former actor, did not know that the man he was with had a gun. Mr. Brancato, 32, was acquitted of felony murder in the 2005 killing of Officer Daniel Enchautegui, but convicted of attempted burglary.

The man Mr. Brancato was with that night, Steven Armento, 51, was convicted by another Bronx jury on Oct. 30 of first-degree murder for firing the fatal shot.

The Brooklyn case ended in a mistrial.

The defendant, Lee Woods, 30, was charged with aggravated murder and other crimes for what prosecutors said was his part in the killing of Officer Russel Timoshenko during a traffic stop last year.

Prosecutors said that Mr. Woods, who will be retried, had not fired a gun but was a willing partner of the men who did.

On Monday, when the mistrial was declared because a juror fell ill, other jurors said they were still debating the murder charge.

Public officials and relatives of the police officers expressed frustration and anger.

The mayor, Michael R. Bloomberg, captured some of the feelings about the Brancato verdict on Tuesday. “It’s just beyond me,” he said, “how the jury could come to that conclusion.”

But interviews with jurors and the defense lawyers in the two cases present a more complicated picture, and suggest that murder convictions for these two men presented a difficult leap for many jurors. Prosecutors in both cases declined to be interviewed.

Mr. Woods and Mr. Brancato were charged with murder under two different legal theories, each one presenting challenges.

Mr. Brancato was charged with felony murder, in which any participant in a felony crime is held responsible for any deaths that occur during the crime — in Mr. Brancato’s case, burglary.
A few states, including Hawaii, Kentucky and Michigan, have abolished their versions of felony murder.

Mr. Brancato’s lawyer, Joseph Tacopina, said New York State’s version of the law was “archaic,” and shifted the burden of proving innocence onto the defendants.

A juror in Mr. Brancato’s case, Arnaldo Nuñez, said that Mr. Brancato’s version of events had been convincing.

In the jury room, he said, “Every stone was turned over at least four times,” but the panel could not find that Mr. Brancato had known or should have known that his accomplice was carrying a gun.

Mr. Woods was charged as an accessory — someone who played a role, no matter how small, in a crime and is criminally liable for the acts of his partners.

Being present, the judge told his jury, was not enough. Jurors asked him to explain several times.

According to Robert C. Gottlieb, a criminal defense lawyer and a former prosecutor, “there is nothing inherently confusing about the law as it pertains to accomplice liability.”

But the difficulty comes when prosecutors have to apply “the facts that fit the law.”

He added, “The law is murky if the facts are murky.”

Many aspects of the case were murky, jurors said. Officer Timoshenko and his partner, Officer Herman Yan, were both shot as they approached an S.U.V they had pulled over.

And while prosecutors established that Mr. Woods and two other men, Dexter Bostic and Robert Ellis, were in the car, it was not clear where each of the men was sitting or who fired the shots.

Part of that mystery was cleared up last week, though, when Mr. Bostic’s jury convicted him of murdering Officer Timoshenko.

Still, a juror in Mr. Woods’s case said the instructions to the jury about an accessory’s liability had been confusing. “Even when the judge read it back, he never explained it in laymen’s terms,” said the juror, who insisted on anonymity because he was concerned about his safety.

Another juror, he said, was troubled with the notion that Mr. Woods could be guilty of murder without pulling a trigger. He said jurors were also confused about the concept of “acting in concert.”

Accepting that a defendant is an accessory “may be difficult for a juror to do, and it should be difficult,” Mr. Gottlieb said. “The jury must be convinced beyond a reasonable doubt.”

Michael Wilson contributed reporting.

2008 The New York Times Company