Defense lawyer: Prosecutors lack good DNA evidence in NYPD subway station sodomy trial

Defense says NYPD prosecution lacks evidence

NEW YORK — Lawyers for three Brooklyn policemen accused of sodomizing a drug suspect with a baton and covering it up worked methodically to discredit the case against their clients Tuesday, setting the cops against the alleged victim.

Officer Richard Kern has pleaded not guilty to aggravated sexual abuse and assault. The drug suspect, Michael Mineo, claims he was chased into a subway station and sodomized with a police baton on Oct. 15, 2008, after he ran from cops because he had no ID, was smoking pot and didn’t want to go to jail.

Two other officers on trial with Kern, Alex Cruz and Andrew Morales, are accused of hindering prosecution and official misconduct for a suspected cover-up.

Defense attorneys spoke for nearly five hours Tuesday, and Morales’ attorney Richard Murray was to complete his closings Wednesday. Assistant District Attorney Charles Guria, who did not get the chance to address the jury, will also speak Wednesday.

Judge Alan Marrus initially planned to throw out a lesser assault count against Kern but is keeping it in because of a technicality in the law’s language on the top charge.

John Patten, defending Kern, was the lead attorney, with the others joining in a chorus of condemnation of Mineo, and against the prosecution’s case as a whole. They often repeated claims made by one another. If Kern is not convicted, the other two cannot be found guilty.

Patten portrayed his client as a levelheaded, competent cop who did the right thing by giving Mineo a summons for disorderly conduct and releasing him. “If you’ve done something that would bring this kind of heat on you, you wouldn’t put your name on it … your shield number,” Patten said.

The attorneys focused on what the prosecutors did not introduce in the case, namely Mineo’s jeans — because no blood was found on them — and Mineo’s boxer shorts.

The defense introduced the boxers as evidence, and a fair amount of the case has rested on the underwear, because a square hole was punched out. Defense attorneys hinted that Mineo punched it out himself to make his allegations more credible and that, had a baton penetrated them, it would have left a flap or a rip.

Patten also said a lack of a DNA match was crucial to proving his client’s innocence.

“If there was a match,” he said, referring to tests done on Kern’s baton, “There’d probably be a plea of guilty here.”

The attorneys maligned Mineo as a liar and a manipulator. They told jurors he had an existing medical condition and that he caused an anal tear himself.

“There was no crime committed at all. There was no injury to Michael Mineo at all,” said Stuart London, who was defending Cruz.

Medical testimony in the trial suggested Mineo’s initial injuries caused an abscess that had to be drained. A transit cop at the scene testified he witnessed Kern press the baton into Mineo’s backside.

Mineo, 25, has filed a $440 million suit against the city, and the attorneys hammered on the idea he was trumping up his injuries to get a bigger settlement.

“He will say anything he can to realize a conviction in this case because it will go a long, long way. … They have an expectation of big bucks,” Patten said, referring to Mineo and his lawyers.

London, Cruz’s attorney, told jurors Mineo was like one of his tattoos: a chameleon, “the person who wants to change his appearance when he wants to.”

He said his client wasn’t even there for the majority of the encounter and that he had nothing to cover up.

“This is one big $440 million con job,” London said.

Patten called the transit cop “not the brightest bulb,” whose testimony was led by prosecutors.

The courtroom, which has sat nearly empty on other days, was full, but there were no officers in uniform. The atmosphere was more tense than usual, with Patten and judge Alan Marrus arguing during his statement.

Mineo appeared in court again, briefly, but was more subdued than past appearances and left before Patten finished.