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Jury Gets Case in Stewart Trial

November 19, 1985

NEW YORK (AP) _ A jury began deliberations Monday in the case of six transit police officers accused in the death of a man after his arrest for allegedly scrawling graffiti at a subway station.

The jury began its deliberations after a judge instructed the jurors they could convict three of the officers of criminally negligent homicide or assault even if the defendants never touched 25-year-old Michael Stewart.

The panel retired for the night after about two hours of deliberations during which it asked that testimony from nine witnesses who said they saw police officers hit and kick Stewart be reread.

In nearly four hours of instructions, Justice Jeffrey Atlas of the trial- level State Supreme Court explained that a crime could be committed by ″not doing something when a person has a duty to act and is able to act.″

″It’s called omission liability,″ Atlas said. ″It’s in our laws. The failure to act is equivalent to the action itself.″

Assistant District Attorney John Fried used this theory, novel in New York State, to prosecute the case against three of the six officers. Although some of the prosecution’s 25 witnesses said they saw police hit and kick Stewart, none could identify any defendant as having done so.

Fried contended that the three defendants who had Stewart in their custody and control from the time he was arrested until he was taken to the hospital had a duty to protect him from other police officers.

Stewart was arrested shortly before 3 a.m. on Sept. 15, 1983, accused of writing on a subway station wall. A half-hour later, transit police brought him bruised and comatose to Bellevue Hospital, where he died 13 days later without regaining consciousness.

Officers John Kostick, 26, Anthony Piscola, 50, and Henry Boerner, 42, are charged with criminally negligent homicide, assault and perjury. The other three, Henry Hassler, and James Barry, both 41 and sergeants, and Officer Susan Techky, 33, are charged with perjury for allegedly lying when they told a grand jury they saw no one kick Stewart.

Assault and perjury are punishable by up to seven years in prison; criminally negligent homicide carries a four-year penalty.

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