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Judge Clears ‘Confrontational’ Cop in Custody Death

TOM HAYSOctober 8, 1996

NEW YORK (AP) _ A policeman accused of fatally choking a man whose football hit a squad car was cleared of homicide Monday by a reluctant judge who called the officer confrontational and unprofessional.

``I do not find that the defendant is innocent,″ State Supreme Court Justice Gerald Sheindlin said. ``I do find that the people have failed to establish guilt of the defendant beyond a reasonable doubt.″

The verdict in the non-jury trial of Officer Francis Livoti triggered a hysterical outburst by the family of the victim, Anthony Baez, and their supporters, who burst from the courtroom screaming, ``Murderer!″

Baez’s mother, Iris, collapsed and was taken to a hospital for observation. Another woman tore apart a police barricade and threw it against the wall. About 50 protesters marched to the police stationhouse, then to the Baez home, where Baez’ sister wore a T-shirt that read ``Beware Killer Cops.″

``Livoti is a pig! He’s walking the streets to do this again,″ said Baez’s widow, Maribel.

The verdict is ``a disgrace,″ said Susan Karten, the Baez family’s lawyer in a pending civil case. ``There is no justice in this city for anyone who gets killed by a police officer.″

Amnesty International said the verdict ``sends a clear message to other officers that they can get away with brutality.″

Livoti had faced up to four years in prison if convicted of criminally negligent homicide. After slipping out of the courthouse, he issued a statement saying, ``I committed no crime, and the not-guilty verdict supports that fact.″

Sheindlin excoriated Livoti’s ``rude, confrontational″ behavior during what he said began as an avoidable, minor incident.

``It is clear that this defendant’s conduct failed to rise to the level one would expect of a professional,″ he said.

But the judge _ who last week accused police witnesses of lying and claimed their testimony appeared to be a ``nest of perjury,″ said prosecutors failed to prove Livoti’s negligence was criminal.

U.S. Attorney Mary Jo White said her office is examining whether any federal civil rights charges are appropriate, and police and state prosecutors are reviewing the perjury issue. Livoti also will face administrative charges, the police commissioner said.

Livoti’s acquittal shocked residents of the Bronx, where hairdressers, construction workers and shoppers stood on stoops or paused in the street to hear the news from the marchers.

``You know the cop who killed that guy? The strangler? They let him go!″ someone called out.

``Not guilty?″ responded a woman peering out of a laundromat. ``No!″

``I don’t believe it!″ gasped Ana Mestre, putting her grocery bags down on the steps of her building. ``He was strangled! He was a good man!″

Outside a bodega, another woman shook her head and said quietly: ``Coulda been my son.″

Mayor Rudolph Giuliani said he thought the verdict was a ``careful, well thought-out, legally reasoned opinion.″ But he added: ``I can understand completely the outrage, the emotion and the anger of the family.

``Here is a young man who was killed unjustifiably _ and it ends up with a not-guilty verdict,″ the mayor said. ``Very often, people have to square their emotions with a system that makes it difficult to prove someone guilty of a crime.″

Baez, a 29-year-old Orlando, Fla., resident, was playing touch football with his brothers in the street outside their Bronx home at 1 a.m. on Dec. 22, 1994. The ball hit a patrol car twice.

Livoti tried to break up the game and ended up in a struggle with Baez. Baez’s father and other witnesses said they saw Baez collapse after Livoti clamped his arm around the victim’s neck.

The city’s medical examiner testified that while Baez had chronic asthma, he was died of asphyxia because he was tightly choked for at least one minute.

Livoti, 35, opted for a non-jury trial, given the history of bad blood between police and many Bronx residents. He didn’t testify. His lawyer acknowledged that Livoti may have inadvertently choked Baez _ but only because Baez violently resisted arrest for disorderly conduct.

The trial featured conflicting testimony by police officers, five of whom said the 5-foot-8, 269-pound Baez struggled and resisted even after Livoti and three other cops force him to the ground.

But Officer Daisy Boria, whose partner claimed to have helped Livoti, broke ranks with her fellow officers, testifying that by the time she and her partner arrived at the scene, Baez was already motionless on the ground.

Livoti _ who has 500 felony arrests and 11 unsubstantiated complaints of excessive force in his 13-year career _ still faces unrelated, misdemeanor assault charges for allegedly choking a teen-ager he had stopped for driving an illegal go-cart in 1993.

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