Felony Journalism

Photography With Intent to Write

Bicycling in Buffalo Part III

By Michael I. Niman, ArtVoice 10/23/03

It’s been nearly five months since I was arrested, clubbed, choked, kicked and forced to march naked through a cell block by Buffalo Police officers. My crime was photographing an unfolding police riot against a regularly scheduled monthly "Critical Mass" group bicycle ride on May 30th. In all, nine people were arrested, including a Good Samaritan – the former Senior Vice President of a local health care corporation who got out of her car to beg police to stop clubbing people. Arrestees were charged with multiple felonies and misdemeanors.

Scores of witnesses corroborated photographic evidence from eight photographers documenting a violent attack by police officers, including two lieutenants, against law abiding people. Given the strong visual evidence, the local media deviated from their editorial pattern of compulsive reliance on official sources, and framed the story as a police brutality case instead of a "bicycle riot" as alleged by police officials. Photos of the event ran on local television, The Buffalo News and on various websites.

For many Western New Yorkers familiar with the incident and photos, the story ended here. The general assumption is that charges were dropped and perhaps some sort of brutality investigation is pending. End of story.


Assailants Still Not Charged


People are shocked to hear that eight defendants are still facing trial in November and that Erie County District Attorney Frank Clark has not filed charges against a single police officer involved in the melee.

Felony charges against the group were dropped because, aside from police actions, no one saw anything resembling a riot that day. Not so much as a shrub or flower was damaged and traffic flowed unimpaired where police allege the riot occurred. Even the arrest reports fail to describe a "felony riot" situation. Hence, the D.A. couldn’t pursue the charge. The felony riot charges, however, were craftily replaced with misdemeanor riot charges.


Officers Uninjured


Charges of "felony assault of a police officer" were reduced for similar reasons – i.e., no police officers were injured. I was charged with "biting" a police officer. The officer involved first claimed I bit his left thumb. The arrest report claims I bit his right index finger. At the emergency room, he claimed I bit his right middle finger. Medical reports, however, show no evidence of a bite on any finger. Photos showed the officer used his right hand to hold his club throughout the entire incident, making it unlikely that it could have been bitten by anyone, especially by the person being clubbed. The photos also show no post "bite" impairment. The officer ultimately took three weeks sick leave for insomnia.

Jon Piret’s case was similar. Photos show officers throwing Piret onto the hood of a police car and beating him. Witnesses saw officers jab a billy club perpendicular into Piret’s back. Piret’s arresting officer later verbally claimed that Piret kicked him in the leg. For his written statement, however, the officer changed the point of impact from his leg to his chest. He claimed Piret executed this kick while pinned to the hood of the patrol car, a move that would require Piret to have a substantially longer leg with two additional joints. Medical records, however, showed no evidence of the officer having a detectable injury.

Despite evidence showing the assaults couldn’t have taken place, and a lack of injured officers, D.A. Frank Clark’s office is still pursuing misdemeanor assault charges against Piret and myself.


The First Case of Perjury


The May 30th incident began with two traffic stops a half block apart. At the first stop, two "D" district officers freelancing in the "B" district, stopped the entire ride of 120 bicyclists. They issued inaudible directions to the lead rider, then waved the group on. The same two officers again pulled the ride over a half block later, this time issuing citations to two cyclists at the rear of the pack for "failure to yield to an emergency vehicle."

On Friday, October 17th, those cyclists, accompanied by attorney Mark Mahoney, went to traffic court and confronted the ticket writer. The officer testified under oath that he pursued the two cyclists with his siren blaring for "two thousand yards" (roughly 1.1 miles). Under cross-examination, he was asked if he was certain about the distance. He amended his sworn testimony to, "one thousand yards" (about one kilometer).

Mahoney then introduced a sequence of four of my photos into evidence. These photos showed the initial stop, the two defendants passing the officer who was still standing next to his car, and then the same car and officer pulling them over a half block later – about 100 feet after making contact again with the cyclists.

The judge asked the officer to point to the spot on the photo that corresponds to the point on Elmwood Avenue when he turned his siren on. No spot, however, from where the officer was photographed standing next to his car, and the ultimate traffic stop a half block later, would constitute a kilometer-long chase. The officer was caught in a lie and the bicyclists were found not guilty.

A trained police officer testifying in traffic court is legally assumed to be an expert on judging distance and speed. People are often convicted of traffic violations based solely on officer testimony. Traffic court proceedings assume officers will be honest and accurate. A distance judging error of, say, 20 percent can mean the difference between guilt and innocence. Still, one can argue such an error is based on incompetence, and is not evidence of intentional perjury. In this case, however, there’s a 600 percent discrepancy, and hence, evidence of perjury. However, District Attorney Frank Clark’s office has not sought perjury charges against the officer.


Arrest the Photographer _ Stop the Creation of Evidence


I’m raising these traffic court proceedings here to show how the photographic record played a major role in preventing two innocent people from being falsely convicted of a crime, minor as it may be, while raising questions of perjury. Photos from various photographers also document the peaceful arrest of Canisius College Ethics Instructor Heron Simmond. This photographic record will help acquit Professor Simmond, who is currently facing multiple charges of resisting arrest, disorderly conduct, obstructing governmental administration and riot. The same photographs should help secure perjury indictments against the officers who leveled false charges against Simmond.

With police testimony often considered sacrosanct, Simmond, who initially faced nearly 10 years in jail, could have been convicted on false charges. The photographic evidence, however, lends credence to the scores of witness statements contradicting the affidavits signed by the arresting officers.

The Simmond photographs were the last pictures that I took on May 30th before being struck from behind by a police officer.


Arrest Another Photographer


Removing photographers and preventing creation of a photographic record is common during the early stages of what sociologists term "police riots." By arresting me, a police officer succeeded in removing the only professional photographer from the scene. Luckily, however, four amateur photographers captured my arrest on camera. Their photos should serve to substantiate witness statements and lead to my acquittal, and, hopefully, to the prosecution of the officers who beat me and leveled perjurious charges against me.

I wasn’t the only photographer targeted, however. Amateur photographer Jon Piret was also arrested. Piret’s fateful moment came when he photographed three officers beating arrestee Eric Bifaro. One of those officers, a lieutenant, makes direct eye contact with Piret’s camera, seemingly leading to Piret’s arrest by another officer less than a moment later. Piret’s camera was recovered from nearby bushes by another cyclist.

Not so coincidentally, the two photographers (Piret and myself) were the two people who initially received felony assault charges, and are currently being prosecuted by District Attorney Frank Clark’s office for "assault of a police officer."


Crime Victims Without Resolution


The most angering aspect of this case is that the people who were attacked on May 30th are all crime victims who are being further victimized by the D.A.’s office.

We were assaulted in broad daylight on the city’s busiest street in front of over one hundred witnesses. Photographs document this attack and clearly show the faces of our assailants. Still, almost five months have passed, and no public agency has moved to prosecute them.

Since the assailants are police officers, victims feel vulnerable to further attack from “thugs” who are regularly seen in their neighborhoods sporting clubs and guns.

Many of the victims filed confidential complaints against the officers with the Buffalo Police Department’s Professional Standards Division (Internal Affairs Bureau). These complaints and the supporting statements by witnesses, however, wound up in the hands of prosecutors pursuing charges not against the officers, but against the complainants.


The Plea Bargain Game


Here’s where our criminal justice system seems broken. In a society where rapists, muggers and other vicious criminals regularly plea bargain for reduced charges, innocent people are coerced to plead guilty to crimes they haven’t committed in order to avoid prohibitive legal expenses and the risk of conviction on inflated charges. Ultimately, what we have is little justice at all.  Our case fits this pattern. All of the arrestees were hit with inflated charges with roughly 10 years of jail time hanging over each of our heads. The D.A. is brazenly pushing ahead with what can only be termed a malicious prosecution of crime victims.

In our case, however, legal services are being provided pro bono (free) – donated by a conscientious team of attorneys. This case – which lawyers felt should have been dismissed immediately – has drawn on for months, with a slew of court proceedings and an impending trial. It appears that the prosecutor’s strategy is to wear down the pro bono attorneys until, one by one, they burn out and leave the case. This, however, isn’t happening.


Our Hundred Thousand Dollar Gift


To date, we have probably received in the neighborhood of $100,000 worth of legal services, with our volunteer attorneys footing the bill for many related support services.  Without this extraordinary legal team, headed by Mark Mahoney, and including Robbie Billingslea, former Judge Andy Lotempio and Leigh Anderson, this defense would pose an overbearing burden for us.

If we didn’t actively contest these charges, the perjury presented in the arresting officer’s sworn affidavits would never have been questioned. That perjury is perhaps the most frightening aspect of this case. The ease by which the arresting officers in this case fabricated their stories illuminates what seems to be a widespread culture of lying. The fact that one officer thoughtlessly committed perjury over a minor traffic ticket shows how frighteningly easy it is for some police officers to lie under oath. Citizens simply riding their bicycles suddenly found themselves exposing a culture of police and prosecutorial corruption. None of us asked for this responsibility.


McCarthyism, the D.A. & the U.A.W.


The publicly funded prosecution of this case has been relentless. District Attorney Frank Clark’s office, for example, assigned Chief Confidential Criminal Investigator John Abraham to conduct a political background check on me. Abraham has visited at least one local bicyclist at his place of employment, asking questions such as, "Would you say Michael I. Niman is a liberal?" "Is he a communist?" "Would you say he’s down on society?"

This line of questioning brings back shades of the McCarthy era. This is why groups such as the National Writer’s Union (United Auto Workers Local 1981) and the international Union For Democratic Communications have asked the U.S. Justice Department to investigate what the NWU terms "police brutality and malicious prosecution." They express concern that my "civil rights as a journalist have been violated."

With local government facing a fiscal crisis, this prosecution would seem a clear waste of public funds on the part of D.A. Frank Clark’s office. Officers who falsely claimed to have injuries and subsequently took medical leave, have also misappropriated public funds, as did officers claiming overtime pay to file false arrest reports on the night of May 30th.


Bizarre Police Behavior


Once in the patrol cars, arrestees became captive audiences for chatty officers. Oddly, one arresting officer reportedly asked an arrested cyclist if he was aware of the high suicide rate among police officers. Another complained about being forced to take "sensitivity training," making condescending comments about the training. Referring to the behavior of the officers on the scene, another explained, "This is what we call crowd control." Various officers ad-libbed a reactionary political vision, admonishing arrestees for being "protestors" while expressing their personal disdain for people who participate in public protest activity.

At the holding center, a portly jailer threatened to pepper spray arrestees locked up in cells. Upon identifying me as a journalist, the same jailer forced me, under threat of a beating, to march naked through the cellblock area, asking me, "Are you gonna write about this?"

My answer is "yes," but it’s taken me a while. As a journalist, I’ve certainly found the experience chilling. This is not what America is supposed to be. Working as a journalist documenting police misconduct in Buffalo earned me a beating and landed me in jail, threatened with years of living in a cage being treated as an abused animal.  Since this experience, I’ve found it difficult to write articles critical of the local powers ultimately responsible for this abuse and the continuing threat to my freedom and human rights. Put simply, this is not fair play.  It’s prosecutorial terrorism.


Bizarre Prosecution


All of the victims of the May 30th assault are haunted by one unanswered question. That is: Why is District Attorney Frank Clark pursuing this case?

Putting the arresting officers on the witness stand, a necessity in any trial, will leave the officers only two options. Option one is to admit to filing false arrest reports. Option two is to commit perjury on the witness stand. If they choose the second route, they’ll be in the extremely difficult position of having to explain the dramatic difference between witness statements and photographic records, and their own accusatory statements. And they’ll have to do this while being cross examined by some of the region’s best attorneys.


Not an Isolated Case


It’s important to mention that this is not an isolated case. There are many stories of people being beaten and falsely charged with crimes. “Resisting arrest” is a common charge in Buffalo , particularly on the City’s predominantly black East Side . Needless to say, all the May 30th arrestees are charged with resisting arrest.

The reason this particular case made the news as a police brutality case is twofold. One, there were lots of vivid and disturbing photos. And two, they showed white folks being beaten. These two factors, combined with the fact that the arrests took place not on Jefferson Avenue in the heart of the city’s black community, but on trendy Elmwood Avenue , caught the attention of a media community that habitually overlooks similar crimes against inner-city residents.

I also want to make it clear that such behavior is not universally accepted within the Buffalo Police Department. Many Buffalo police officers, including lieutenants, have stepped forward to provide various types of support to victims of the May 30th police melee. While the police department currently appears to be rudderless, without any effective leadership, it is also home to many dedicated officers.


Come to the Fundraiser


We still can’t say for sure why we were arrested or why the District Attorney is persisting to prosecute us. The fact remains, however, that the May 30th arrestees are still collectively facing jail time and an expensive trial. Though legal services are being provided pro bono, there are still thousands of dollars in ancillary defense expenses that

need to be paid for. Toward that end, a group of bicyclists and arrestees have come forward and formed the Critical Mass Defense Fund. The first fundraising event will be at Nietzsche’s ( 248 Allen Street ) on October 29th starting at 8:00 PM . There’ll be lots of bands and bicycles, with music by The Global Village Idiots, the Allen Street Jazz Band, The Fabulous Wold Pen, Big Jim Witford, Joe Rozler and others. Ron Ehmke will serve as MC and performance artist. Admission is $10.

People can also donate to the defense fund by making checks out to "The Critical Mass Defense Fund" and mailing them to the Critical Mass Defense Fund, c/o The Western New York Peace Center, 2123 Bailey Avenue , Buffalo NY 14211 .


Information about the May 30th incident is available online at http://mediastudy.com/cm.html. Michael I. Niman’s previous columns are archived at http://mediastudy.com.

©Copyright 2003

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