Cops likely to go to trial for alleged beating after charges were twice dismissed

THE ON-AGAIN, off-again courtroom clash between David and Goliath is back on, and this time, it's likely headed to trial.

Here, "David" is David Vernitsky, a waiflike graffiti vandal who says that two cops busted his jaw after they caught him spray-painting the wall of a Feltonville business in August 2007.

"Goliath" is Sheldon Fitzgerald and Howard Hill III, who say that they were falsely accused and unfairly fired from the police force after an inebriated Vernitsky fell and broke his jaw while fleeing apprehension. So far, the muscle of the Fraternal Order of Police Lodge 5 and two seasoned defense attorneys have weighed in in their favor.

Twice, different judges have thrown out the charges against Fitzgerald and Hill after a preliminary hearing, citing lack of evidence. (A third judge unexpectedly recused herself at the start of a scheduled preliminary hearing.)

But Vernitsky and the District Attorney's Office won a victory in April, when a three-judge appeals panel ruled that prosecutors had presented more than enough evidence to take the case to trial.

Today, for the fourth time in two years, the high-profile case is scheduled for yet another preliminary hearing.

This time, however, Vernitsky and the D.A.'s office will have the advantage. The appellate decision - handed down April 8 by the state Superior Court - means that the lower court has no choice but to hold the charges for trial.

"Bring it on. Let's have it. Let's get it on," Vernitsky, 39, said last week in a barely audible rasp as he stood on the porch of the Logan home he shares with his mother.

"Their story will be heard, and I'm confident they'll prevail," FOP President John McNesby said recently on behalf of Hill and Fitzgerald. "Then we'll move to get them their jobs back through arbitration."

What is essentially a straightforward case of alleged police brutality has proven to be a hot potato tossed in the laps of gun-shy judges and the city's new district attorney, Seth Williams, in a city in which judges and juries typically give cops the benefit of the doubt.

Hill and Fitzgerald, both 32, are charged with aggravated assault, simple assault, conspiracy, tampering with public records and recklessly endangering another person.

The politically thorny case began in May 2008, when then-D.A. Lynne Abraham announced the charges and gave Hill and Fitzgerald a public tongue-lashing. Not only did the officers unmercifully beat Vernitsky, but they tried to cover up the thrashing by intentionally failing to document the pedestrian stop, Abraham charged. The cops released Vernitsky, then falsified their patrol log to make it appear as if they were elsewhere at the time of the 12:30 a.m. incident on Aug. 26, 2007, Abraham said.

Police Commissioner Charles Ramsey promptly fired both five-year veterans from the 25th District, headquartered on Whitaker Avenue near Erie.

The charges came just days after Ramsey fired four officers and disciplined four others for their role in a beating of three shooting suspects May 5, 2008, caught on video by Fox 29. Abraham put that case before a grand jury, which last year cleared the officers of any criminal wrongdoing and concluded that they had used the proper amount of force.

Fitzgerald's sister Shatara Fitzgerald has repeatedly said that Abraham chose to make "scapegoats" out of her brother and Hill because Abraham had gotten heat for punting the Fox 29 case to a grand jury. Abraham has said she charged Hill and Fitzgerald "based on the facts and the evidence" drawn from a fair investigation.

Relatives of Hill and Fitzgerald had hoped that Williams, who replaced Abraham in January, would abandon the case.

"They will be acquitted, so it's just a waste of taxpayer money to even take it to trial," Shatara Fitzgerald said last week. "[Williams] may decide it's not worth the effort and the headache."

Apparently, the new district attorney believes that the case is worth the effort - and the potential wrath of the FOP, which had endorsed Williams in last year's election.

"Given the [appellate] decision, I think we have to go forward," said Deputy District Attorney Curtis Douglas, whom Williams picked to head the Investigations Division. "We're willing to prosecute . . . We also think there's enough there to take it to a jury."

The strongly worded 15-page appellate ruling suggests that the decision to hold the case for trial should have been a no-brainer for any judge.

"It is essentially undisputed that Officers Fitzgerald and Hill were the individuals who injured the victim," the three-judge panel wrote. "The victim suffered a broken jaw, which had to be wired shut for five weeks."

At a November 2008 preliminary hearing, Vernitsky testified that the officers had thrown him to the ground and punched him repeatedly in the jaw. Vernitsky said that he had tried to shield himself, but that Hill barked, "Move your hands, you b----!"

"These concerted blows to the face of a prone and defenseless individual can easily be described as intentional acts designed to cause serious bodily injury," the panel wrote. "[Hill] finally kicked the victim in the groin, demonstrating further intent to cause injury rather than to bring about a legal apprehension."

Indeed, Hill and Fitzgerald decided not to arrest Vernitsky, the panel noted.

"They also failed to record any evidence of their encounter with the victim, and falsified where they were at the time of the encounter," the panel added. "This evidence shows consciousness of guilt, in that the officers knew that they used excessive force on an unarmed and compliant suspect."

The Superior Court also pointed to testimony by Assistant Medical Examiner Gary Lincoln Collins at a second preliminary hearing in January 2009. Collins testified that Vernitsky's injuries were consistent with an intentional assault to the face rather than an accident or fall.

The recent ruling raises questions about why two lower-court judges - Municipal Court Senior Judge Francis P. Cosgrove and Common Pleas Judge Frank Palumbo - tossed out the case.

Cosgrove and Palumbo did not return phone calls from the Daily News.

Legal and political observers said the judges' deference to the FOP and to law enforcement in general may have been one factor.

"The instinct of judges is to not have anyone say anything negative about them," said Ken Snyder, a political strategist and media consultant who used to work for the FOP.

FOP leaders haven't been shy about publicly blasting judges they dislike. Last year, the FOP mounted a campaign to unseat Municipal Judge Craig M. Washington after he sought to remove a photograph of slain Police Officer John Pawlowski from his court, which was inside the 35th Police District Headquarters. Washington said he wanted to avoid the appearance of partiality as he presided over trials.

FOP leaders called for a "no vote" on Washington's retention and hung a banner reading "Dump Judge Craig Washington" outside union headquarters on Spring Garden Street, near Broad. Still, voters in November retained Washington for another six-year term.

The case against Hill and Fitzgerald is expected to go to trial sometime next year. The 800-pound gorilla in the courtroom is likely to be FOP leaders and rank-and-file officers who are expected to show up in support of the defendants.

"My son risked his life on several occasions for the people of this city," said Hill's father, Howard Hill Jr., a retired corrections officer. "He was risking his life all the time and this is his reward?"

Hugh Burns Jr., chief of the D.A.'s Appeals Unit, said Hill and Fitzgerald have only themselves to blame.

"It's a terrible crime," Burns said. "[They] beat somebody to a pulp and so we prosecute them for it. What else are we supposed to do?"

Staff writer David Gambacorta contributed to this

report.