Buffalo News Bicycle Trial Articles Critiqued Below Are Available Here

Response From Buffalo News Reporter to Complaint Sent By Reader Available Here

The Buffalo News Spins the Bicycle Trial

What part of “Not Guilty” don’t they understand?

 By Michael I. Niman 12/3/03

This is a story about the Buffalo News I never anticipated writing.  I’ve sat on a comfortable perch for 15 years criticizing Buffalo ’s monopoly paper from afar, writing about how specific reporters and editors have spun stories to conform to their own biases or political agendas.  My work is academic.  As a media critic, I focus much of my criticism on the media organization that is most influential in our community – The Buffalo News.

Recently, The Buffalo News started writing about me.  I’ve always welcomed their feedback and criticism of my analysis – but the News has never responded in kind.  Instead they chose to engage in a course of character assassination against me as a private citizen, rather than engaging me as their most outspoken critic.  The story of how they did this follows.

By now, readers of this column should be than familiar with the Critical Mass bicycle ride incident, when police officers descended on Buffalo ’s monthly bicycle ride, beating and arresting cyclists, a passerby, and myself, as I photographed another arrest.

Felony Journalism

It was my arrest as a photojournalist that gave writers at the News an opportunity for a crude form of payback.  I was initially arrested on 11 charges, including felony assault, felony riot, and a slew of misdemeanors, all stemming from my act of photographing the ticketing of two cyclists and the arrest of Canisius College Ethics professor, Heron Simmonds.  

Using my ArtVoice photos as evidence, the cyclists were found not guilty of their traffic tickets – a rare phenomenon in traffic court.  The ticketing officer testified that he chased the cyclists for over a mile, trying to pull them over.  The photos showed they pulled over within about 100 feet.

Next came the arrest of Professor Simmonds.  Arresting officers claim that Simmonds was rioting, blocking traffic, urging the cyclists to attack police, and fighting, among a slew of other charges.  By the time he was booked, he was facing seven years in jail.

Using my photos as evidence, Simmonds, along with other Critical Mass defendants including myself, went on trial in mid-November.  The judge presiding over the case reviewed the evidence presented by prosecutors, and the photos used by defense lawyers to cross-examine witnesses, and declared that most of the charges against Simmonds lacked a prima fascia basis.  This means that before the defense portion of the trial even began, the judge ruled that the charges as alleged by the District Attorney’s office, lacked substance or merit.  In the end, Simmonds, was acquitted of all charges. The judge credited the photographic evidence for proving his innocence.

Faulty Charges Go Unreported

 Also on trial were myself and six other bicyclists, all initially charged as felons.  After Assistant District Attorney Jeffrey Hagen presented his case, Judge Carney also dismissed most of the charges against myself and two other defendants as also not meeting basic prima fascia requirements.   One of those defendants had no other charges left pending against her, and was released from the remainder of the trial.

This is newsworthy because it is extremely rare in criminal law. Students in law school are taught that if they can’t produce evidence or testimony, weak as it may be, to back up their allegations, true or false, then they can’t bring them to court.  Hence, prosecutors do not normally drag people into court and then fail to make a case against them.  But that’s what happened here.  And it smacks of malicious prosecution, as was previously alleged in complaints to the US Justice Department filed before the trial began.

Of the remaining charges filed against me on May 30th, I was acquitted of all criminal counts, with one non-criminal violation count, “refusing to move,” sealed.  I was also acquitted of a subsequent criminal charge of “Obstructing Governmental Administration,” leveled not by the police, but by Mr. Hagen, nearly a month after the original incident. A further non-criminal violation, also leveled by Mr. Hagen, was sealed.

Convicted by The Buffalo News

Likewise, all of the defendants were acquitted on all criminal counts, with one defendant who fled the scene in fear, having two violation counts sealed.  All records of these arrests have been expunged from the public record. The final defendant, who was arrested on multiple felony charges, opted out of the second half of the trial, and pled guilty to a non-criminal Disorderly Conduct violation for being “loud.”  That violation, the legal equivalent of a jay-walking ticket, is the only guilty verdict in the public record that came out of the whole mess, which saw 12 people charged.   

Personally, I’m not happy about that defendant’s ticket.  And for ethical reasons, I’m not happy about the “sealed” violations, “gone” from the public record as they may be.  Despite the judge’s explanation, clarifying that “if anyone asks if you were arrested, you can say no,” I would have preferred total vindication to sealed records.  From a legal perspective, however, this is what they call a great victory – as evidenced by my attorney, Robbie Billingsley, immediately shining like a light house, hugging me, and telling me “it’s over – we won.” 

Given this chronology of legal events, I was rather shocked to read the headline in the next day’s Buffalo News, “Two are convicted in battle with police over bicycle rights.” 

Prior to that moment, I naively couldn’t imagine The News’ editors or writers purposely writing such a misleading article.  People are often surprised to hear that despite my frequent criticism of the paper’s biases, I still thought The News was one of the better daily papers in the United States .

I was originally charged with attacking a muscular police officer from behind as he assisted in the arrest of the “riotous” Professor Simmonds. The charges state that I then fought with the officer and bit him.  The officer who signed this felony affidavit ultimately never testified in court.  With him not testifying, we could not question the officers on the stand about the false aspects of this charge.

The photos of the event, published in ArtVoice, disseminated via various websites and TV news stations, and shared with the Buffalo Police Professional Standards Division (BPPSD), clearly show the arresting officer coming up behind me as I took my final photo.  After these photos were published, and after I filed a complaint with the BPPSD explaining that evidence proves this could not have happened, the D.A.’s office drafted a new misdemeanor complaint.  This complaint, written almost a month later, presented a completely different narrative of events that conformed to the photos, and not the arrest reports.

The Associate Press Issues a Correction

The News, however, took the initial arrest report as gospel, crafting a June 1st story so slanted, that the Associated Press, in a very rare move, issued a nationwide correction for their June 1st story, which was based upon bad information gleaned from The News’ story.

After the first News story came out, I spoke with a News editor.  At the time, I explained to him that I’m a media critic.  “It’s my job to write about The News.  And yes, some of those stories have been disseminated nationally – but it’s not personal.  It’s my job.  It’s what I do.  What you’re [The News] trying to do to me, however, is bullshit.”

The News’ next story about the Critical Mass incident, a June 5th front-page piece entitled, “Bicycling at their own risk,” was quite fair and balanced.  And I felt my relationship with The News was back on professional terms.

This honeymoon, however, didn’t last.  The News’ columnist, Don Esmonde, wrote a nasty virulent piece the following day, suggesting that the bicyclists were holding up traffic, and hence, deserved the beating they received.  I responded sharply in my ensuing column, “On nonviolence and bicycling,” writing that Don Esmonde, in his celebration of violence, represents the worst of what we are.  I felt my response was professional, columnist to columnist, basked in a tradition of discourse as old as journalism itself.

Naivety and Luck

I was still naïve, however, thinking that I could continue working as a media critic while The Buffalo News continued to report on my trial fairly.  And then luck added a strange twist to the relationship.  Well before the Critical Mass incident, The Humanist magazine ran a column of mine in which I sharply criticized The News’ editor, Margaret Sullivan both for her handling of wartime news coverage, and for what I viewed as hypocritical self-praise concerning that coverage.  After the Critical Mass incident, the story won a Project Censored award – taking my criticism of Sullivan to an international audience at a time when I was most vulnerable to character assasisination as The News covered my trial. 

And finally, I was invited to speak at UB’s War and the Media conference, which took place during my trial.  A prevailing theme for the conference was embedded and unembedded reporters during the Iraq Invasion.  I choose to speak critically (in a video presentation since I was also on trial at the time) about the work of Buffalo ’s embed, The News’ Jerry Zremski.  I can’t say for sure that there’s a connection between that presentation and the ensuing coverage of my trial, but at a time when I would have expected coverage to be positive, during the defense presentation, it turned decidedly negative. 

When a passerby testified that she saw me peacefully taking a photo when an officer clubbed me from behind, The News’ chose not to report it.  When a half dozen other witnesses described the assault, and the judge started referring to the incident as an assault, The News still chose to ignore all of their testimony.  When most of the charges against me were dismissed as lacking a prima fascia case, The News chose to ignore this fact, instead juxtaposing charges dismissed against other people with charges still remaining against me. 

The News Goes to “ Battle ”

The News’ final assault, their “Two are convicted” piece, published on November 25th, was a misstatement of facts and a twisting of reality. It started with a headline using the phrase, “battle with police.”  The term “battle,” by definition, insinuates that two parties were engaged in some sort of combat.  According to the court, however, that was not the case here.  All charges relating to the battle allegation, such as unlawful assembly, riot, assault, obstructing governmental administration, resisting arrest, and fighting were either dismissed outright, or the defendants were found not guilty.  That’s what the trial was about.  There was no battle.

For the same reasons, The News’ statement that the arrest of Heron Simmonds “sparked the violence” is also patently false.

And there were no fines.  Hence, The News’ allegation in paragraph two, that I was “fined” $95, was false.  The judge also never “imposed a $95 state tax,” as the article later alleges.  The tax is mandatory for the sealed violations and Judge Carney apologized that he had no authority to waive it.

The News’ story jumped to another page, with a headline supposedly quoting Judge Carney, saying police tactics were justified.  This is not fair to the judge.  During the six long days of this trial, Judge Carney had quite a bit to say.  And I believe that he indeed did say that some tactics employed by some officers were justified.  I’d go a step further, after hearing and seeing all of the evidence, and say that the police work exhibited by at least one officer was exemplary.  But some of it also stunk.  And when the judge stated that the details of the violent tactics employed to subdue a “peaceful” Michael Niman were not for this court to discuss, but for another court to examine, I don’t think he was bestowing that evening’s police work with blanket praise. To the contrary, he blamed both individual cyclists and police officers for a grave miscommunication that resulted in an incident that everyone seems to agree plain should not have happened.

This all brings us up to the supposed “bite.” Emergency room records from the night of the Critical Mass incident don’t indicate evidence of a bite.  A private doctor whom the officer visited three days later says there was a crush injury, which “by history,” was produced by a bite.  “History,” he admitted, means the officer claimed to be bitten. There was no physical evidence, however, that on its own would lead one to believe the finger was bitten.  The officer's private doctor went on, under cross examination, to admit that there were no teeth marks or other clear indications of a bite, and that the swelling he saw in the finger could have been caused by a crush between a baton and a bicycle helmet.  He also volunteered, on the witness stand, that a hammer or a vice could have caused it.  Of course none of this was reported in The Buffalo News. In any event, the charge that I attacked the police officer and somehow wrestled his hand into my mouth, died with the bogus felony charges.  If the officer was injured, it was clearly not anyone’s intent to injure him.  Hence I was found not guilty on the criminal assault charge.  This should be the end of the story.  But no.  Even after a trial and an acquittal on the assault charge, The News still casually reports that, “Niman had bitten an officer’s finger.” 

There are also things that The News, in covering the trial, should be mentioning.  There’s the obvious question concerning why was I taken down violently when I was clearly taking pictures?  The answer might not be about malice on the part of the officer, but more about fear, confusion and miscommunication -- basically a potentially lethal dose of incompetence.  Whatever the possible answer, I would think that as journalists, The News should have asked the question.

Shades of McCarthyism

There were also frightening issues raised by the nature of the prosecution that a journalist should have found worthy of reporting.  Why, for instance, did prosecutor Jeffrey Hagen cross-examine me on the witness stand about my political beliefs, at one point, questioning if I was “an anarchist.”  Earlier, his investigators allegedly questioned cyclists, asking if I was a “liberal” or a “communist.” This digression, having nothing to do with the charges, smacked of McCarthyism.

And there are questions surrounding the original felony arrest reports – patently false with no inkling of a basis in reality, they seem to have been constructed in order to pressure defendants into pleading to lesser charges rather than face felony trials.  The appearance and subsequent disappearance of such charges, which originally had me facing up to 14 years in prison, should have piqued a journalist’s interest.  Also, the absence of any testimony from both the officer signing the arrest affidavits and the baton-wielding officer who reportedly did most of the clubbing, likewise should have attracted the attention of a journalist.

Then there were chilling first amendment issues that The News ignored.  Why did Hagen , for instance, question me about unrelated ArtVoice articles that I had authored, pulling lines out of context and asking if I had written them.  Such antics scored Hagen no points with Judge Carney, but they might have affected a jury not familiar with the first amendment.  I know that as a journalist, such questions scared the hell out of me – I never thought I’d be interrogated in an American court about activities protected by the first amendment.  But then again, naive seems to be the self-description I keep returning to here.  

 

 

Michael I. Niman’s previous ArtVoice articles are archived at www.mediastudy.com/articles .  Information about the Critical Mass arrests is available at www.mediastudy.com/cm.html.

 

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