Judge acquits two officers in graffiti artist's beating

A Philadelphia judge this afternoon ordered the acquittal of two former Philadelphia police officers accused of beating a graffitist and breaking his jaw after catching him tagging a building.

After studying the evidence for more than four hours, Common Pleas Court Judge James Murray Lynn said the alleged victim had destroyed his credibility by lying repeatedly on the witness stand and that the case should not go to the jury.

The ruling is not appealable, said Assistant District Attorney Meriah Russell.

Both officers declined comment by their lawyers said they intend to seek reinstatement to the police department.

Russell finished the prosecution case shortly after noon and, after the jury was sent to lunch, the defense attorneys for Sheldon B. Fitzgerald, 32, and Howard Hill 3d, 33, asked Lynn to intervene and acquit the pair rather than let the jury decide.

"I'm asking you to stop this, Judge, acquittal on all charges," said Brian J. McMonagle, the attorney for Fitzgerald.

McMonagle called the alleged victim, David Vernitsky, 40, "despicable" and referred to how Vernitsky laughed Wednesday when he admitted in testimony that he lied to police, investigators and the jury.

Vernitsky then threw a final insult, McMonagle said, by writing his graffiti tag, "Oz," in an elevator and stairwell at the Criminal Justice Center.

The actions destroyed his credibility as a witness, McMonagle said.

"I couldn't say it any better," added Fortunato N. "Fred" Perri Jr., Hill's attorney.

But Russell argued that Vernitsky's credibility was almost irrelevant because the scope of his injuries - scrapes and bruises, three lost teeth, a broken jaw and black eye - was too great to have been caused by what the officers said was a fall after the officers pushed him against the patrol car to apprehend Vernitsky.

Russell also noted that the officers never filed reports of their contact with Vernitsky at about 12:30 a.m. on Aug. 26, 2007, when they caught him spray-painting a wall at Fourth Street and Wyoming Avenue in Feltonville.

"The jury should be allowed to decide whose lies to forget, whose story to hold and who they're going to hold accountable," Russell said.

The officers, then both on the force for four years, allegedly assaulted Vernitsky after he ran when they surprised him spraying the wall.

Vernitsky had been attending a wedding reception and said he was going to write his name and a congratulatory message to the bride and groom.

Vernitsky, who admitted that he had been drinking and smoking marijuana, bolted when he saw the officers but said they caught up to him and kicked and beat him before throwing him into their patrol car.

Prosecutors say the officers dropped off Vernitsky on the sidewalk a block away where he was found by another wedding guest who took him to the hospital.

In addition to assault charges, the two officers are charged with failing to file reports of the incident and lying to investigators. The charges were twice dismissed by judges at hearings in 2009 but the District Attorney's office appealed and the state Superior Court reinstated the charges and ordered the officers to stand trial.