WAITING GAME
Jury continues deliberations in hate crime trial for former Bordentown Police chief >>
CAMDEN >> Former Bordentown Police chief Frank Nucera gets to have a pit in his stomach over the weekend.
The five men and seven women on the jury decided to call it quits for the day about 65 minutes after passing a note to U.S. District Court Judge Robert Kugler around 2 p.m. asking to clarify the definition of reasonable doubt. The jury has deliberated about 15 hours over three days without reaching a verdict in a case that has attracted international attention.
The defining question in Nucera’s hate-crime trial so far, incidentally an actual request for a definition, sent attorneys in a mad-dash to find an answer. In the end, they went with the KISS philosophy – keep it simple, stupid.
“This is always a very difficult time for any client to sit through this and for me as his lawyer,” Rocco Cipparone Jr., Nucera’s attorney, said Friday after the jury was dismissed. “I’m happy that the jury is working through the evidence and not just making reflexive decisions.”
Nucera, 62, is accused of slamming black Trenton teenager Timothy Stroye’s head into a door jamb on Sept. 1, 2016. Police responded to the Ramada Inn around 7 p.m. that night after a manager wrongly believed Stroye and his 16-year-old girlfriend swam in the pool without paying for a room.
Stroye, then 18, was involved in a fight that sent Bordentown cop Shawn Mount to the hospital. He and his girlfriend were subdued and handcuffed by other police officers who arrived following Mount’s distress call over the police radio. Nucera, clad in a peach shirt and a tie, also showed up to the hotel.
Two of Nucera’s own former rank-and-file testified during the three-week trial seeing Nucera strike Stroye as he was being escorted from the second floor of the hotel to a police cruiser. One colleague taped Nucera making racist and profane remarks about Stroye within hours of the alleged assault, back at the police station.
Attorneys found slightly varying definitions from U.S. circuit courts, and even the New Jersey Supreme Court, but decided it was safer to go with the same definition or reasonable doubt that the jury was charged with Wednesday before retiring to the deliberations room.
Cipparone said the 7th U.S. Circuit Court of Appeals cautioned against clarifying the definition of reasonable doubt beyond what the jury was charged with before getting the case.
The 7th District “has refused to adopt a per se rule against defining reasonable doubt” but suggested in U.S. v Shaffner that doing so was “equivalent to playing with fire.”
“It is our opinion that any use of an instruction defining reasonable doubt presents a situation equivalent to playing with fire,” the court reasoned. “The problem is that such an instruction is generally employed to favor one side. The most egregious section defined reasonable doubt as follows.”
After about 15 minutes of haggling over what to do, the two sides agreed not to change up or add to the definition. With that, Kugler brought the jury and referred them to the charge.
“Proof beyond a reasonable doubt does not mean proof all beyond all possible doubt or to mathematical certainty, possible doubt or doubt based on conjecture, speculation,” he read. “A reasonable doubt is a fair doubt based on reason, logic, common sense or experience. It is a doubt that an ordinary person has after carefully weighing all the evidence and is a doubt that would cause his or her hesitation in matters of importance in his or her own life. It may arise from the evidence of the lack of evidence.”
The judge added, “That is the best answer the law provides,” before dismissing the jury, which includes three black women, back into the deliberations room.
After the jury left the courtroom, Kugler said he didn’t know how much longer it planned to deliberate but “if they want to stay late, we’re gonna stay late, into the night.”
The jury apparently wanted to call it an early weekend, and didn’t stick around that much longer.
Cipparone said he wasn’t putting much stock into the jury’s inquiry.
“I learned a long time ago it’s really hard to read into jury questions which way they’re leaning,” he said. “I can’t predict any from that. But the question doesn’t surprise me. It’s not the first time I’ve seen that question during trials. I do think the definition is somewhat vague and really have not found that the courts have come up with anything better so we’re stuck with just reiterating it.”
Nucera is charged with hate-crime assault, deprivation of civil rights and lying to the FBI, which could send him to the slammer for up to 20 years. He also faces the loss of his six-figure pension, which was frozen in March pending the outcome of the case.
Earlier in the day, jurors asked for the testimony of Sgt. Nathan Roohr, the government star witness who described seeing the police chief grab and slam Stroye’s head into a metal door jamb “like a basketball.” Roohr turned over 81 surreptitious recordings, played on an almost endless loop at trial, that he made of Nucera making racist comments.
The jury on Thursday also asked for the testimonies of Terri Cowen, then the Ramada Inn general manager who called the cops, and Detective Sgt. Salvatore Guido. Guido testified seeing the chief strike Stroye, but described it from the stand as more of a push. He refused to call it excessive repeatedly saying it was “uncalled for.”
The defense in closings seized on Guido’s evolving recollections and the fact he didn’t initially admit to the FBI that he saw the alleged assault when they visited his home Dec. 22.
The prosecution must prove Nucera hit Stroye and did so because he was black. Assistant U.S. attorney Joseph Gribko said the ex-police chief’s words showed his mind state when he allegedly lashed out at the teen.
“Those aren’t just words. They’re elements of the crime charged here,” he told the jury in his closing Wednesday. “The defendant is not being charged for his words. He’s being held accountable for his actions.”
Cipparone countered that his client’s “ugly, embarrassing” words don’t mean much unless the government proved his client hit Stroye. He told jurors not to trust the word of two disgruntled cops who wanted Nucera out because of his harsh demeanor and cutthroat managerial style.
Nucera, for his part, never admitted hitting the teen. In a secretly recorded interview with FBI special agents, he repeatedly denied going “hands on” with Stroye. The FBI alleged he lied during the interview.
Nucera is trying to make it a perfect untouchable run if he can dodge the feds again after they finally nabbed him in 2017.
The former chief has survived at least three separate criminal investigations, including an excessive force probe in 2000, in his 34 years on the force.
The Trentonian reported this week that a former state Attorney General investigator, Tony Luyber, was caught on tape in 2007 saying he wanted Nucera indicted in a billing fraud case.
Ex-Bordentown cop John Carter, who was fired after the state Supreme Court ruled against him in a disciplinary case in 2007 for sleeping on the job, taped Luyber during a phone call in June 2007.
Lewis Korngut, who was then chief of the AG’s corruption unit, said he signed a closeout memo, relying on then-lead prosecutor Susan Case’s interpretations, because there was insufficient evidence to prosecute the case.
Luyber felt differently, claiming on the tape he and Case felt so strongly after the case was closed that they went to the township to encourage it to bring administrative charges that could have led to Nucera’s firing. The township didn’t act on the recommendation and never parted ways with Nucera, who became chief in 2006.
Carter was perturbed with the decision, saying he wants Nucera held accountable for putting him and other cops who were fired, forced out, transferred or retired through “hell” during his tyrannical reign.
The jury resumes deliberations Monday at 9:30 a.m.