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The Cooperstein case: A question of justice

Sunday, March 19, 2000

By Bruce Keidan, Post-Gazette Correspondent at Large

First of two parts.

He was the first Pittsburgh police officer to face homicide charges for firing his gun in the line of duty. But the trial and acquittal last month of Jeffrey Cooperstein in the death of Deron S. Grimmitt Sr., above, represented more than the fate of one police officer on homicide charges.

 
  A question of justice:

Part Two: The Cooperstein case: A question of justice

   
 

For many, it was a verdict on an issue that has roiled U.S. cities and police departments from Pittsburgh to New York to Los Angeles, an issue that has been a hot button here since the death in 1995 of black motorist Jonny E. Gammage: What role does race play in fighting crime?

Was Cooperstein an overly zealous white officer who gunned down an innocent black man? Or did he act justifiably and lawfully in his use of force? Sunday and Monday, Bruce Keidan examines the case and the jury's verdict, asking the question: Was justice served?


 
Jeffrey Cooperstein was a frequent and vocal contributor to the Blue Knight Web site, posting angry diatribes against a variety of targets, including Police Chief Robert W.McNeilly Jr. Cooperstein's Blue Knight alter ego would become a focal point in his trial. (Gary Tramontina, Associated Press) 

It is see-your-breath cold in the halls of justice. Not in the courtrooms themselves, which are heated. But in the hallway outside Judge David S. Cercone's third-floor-corner courtroom, TV cameramen blow on their hands and grumble about going outside to warm up.

They can go into the courtroom, but they can't take their cameras. In the Allegheny County Courthouse, as in all other courthouses throughout Pennsylvania, photography of any sort is forbidden. So is the use of tape recorders. Pictures and sound bites alike must come from outside the courtroom, where it is cold enough to hang sides of beef.

Nothing is happening in the courtroom, newsworthy or otherwise -- just now at any rate. Cercone is meeting with attorneys in the privacy of the judge's chambers. News is scarce.

An enterprising radio reporter from the local all-news station is interviewing a gray-haired, soft-spoken black man who, though not involved in the trial directly, is keenly interested in the proceedings. He is a community activist, he explains.

In the history of American jurisprudence, he asserts, a white police officer never has been convicted of murdering a black man. He is incorrect, and the reporter knows it, but she does not argue the point.

"Why are you here?" she asks.

He has come, he says, to see if justice will at last prevail -- to see if former Pittsburgh police Officer Jeffrey Cooperstein will be found guilty of the murder of Deron S. Grimmitt Sr.

"What if Cooperstein is acquitted?" the reporter asks.

"Then it's business as usual," he says.

It is Tuesday, Jan. 18. Jury selection in the Commonwealth of Pennsylvania vs. Jeffrey Cooperstein trial has not begun. Once a jury is picked, it will spend two weeks listening to dozens of witnesses answer thousands of questions posed on direct and cross-examination. It will examine the scene of Grimmitt's death, the projectile that claimed his life and the weapon that fired it. It will listen to hours of impassioned arguments from the prosecutor, Edward Borkowski, and Samuel Reich, the defense team's designated orator.

The whole process will take three weeks. And in the end, after weighing the law and the evidence, the jury will find the defendant not guilty. Not guilty of murder in the first or third degree; not guilty of manslaughter, voluntary or otherwise, in the death of Deron Grimmitt. And, by extension, not guilty of aggravated assault on the key witness against him, Grimmitt's brother, Curtis.

The jury will render its decision on the afternoon of Feb. 8, after slightly less than eight hours of deliberation.

Here in the walk-in freezer that is the hall outside Courtroom 313, though, the verdicts already are in. Cooperstein is a trigger-happy racist who hid behind his badge while he committed murder. Or he is innocent of everything but offending Pittsburgh's Chief of Police Robert W. McNeilly Jr., who is eager to see Cooperstein suffer for his real crime -- character assassination.

An acquittal would be an outrageous miscarriage of justice. Or a conviction would be. Depending on who is raising his voice.

Everyone agrees on two things:

1. Shortly before 4 o'clock on the morning of Dec. 21, 1998, Cooperstein fired four shots from his 9 mm handgun at a 1993 Chrysler speeding inbound on Second Avenue, one of which struck the driver, Grimmitt, 32, of the Hill District, killing him.

2. Jeffrey Cooperstein is the Blue Knight.

Always a cop

 
 
Squash him like a grape


The five Blue Knight excerpts admitted in evidence in the Jeffrey Cooperstein homicide trial:

Anyone who gets killed or injured in the performance of a job where you are penalized and not supported in your actions by your own employer is a moron, not a hero. A true hero will win every confrontation that they are involved in and survive to go home to guide and educate their own children in a desperate hope that the direction of society and the course of the future can be changed, so the kingdom's street will be safe once again. Remember, use the survival force continuum, which is to win at any cost, not the one taught to protect the administrative collective asses.

As for the criminal element, the city can force me to attend a thousand training classes where my horticultural awareness is heightened and enhanced. I'll get two days pay to fondle and caress all the grapes the city wants me to. But if the actor disregards my commands, challenges my authority or encroaches my safety zone and threatens me in any manner, I will squash him like a grape.

It is administrative neglect to teach young officers officer-safety techniques born out of concern for the city's liability and designed by individuals safely out of harm's way. Any compromise to officer safety, regardless of potential liability, is unacceptable .... The rules are very simple: You do not fight with the police. It is a felony. Not one more injured officer; not one more of our names on the ... wall. We all make up the thin blue line, and the only color here is blue.

To a police officer, there are no points for second place. He either wins the confrontation or he dies.

All suspects must be made aware that there is an assigned risk of severe injury or death that automatically attaches itself on every occasion that he chooses to fight with the police. Nowhere is it written in the Pittsburgh Police Rules and Regulations that officers are expected to be spit upon, insulted, injured or die in the performance of their duties or upholding their oath of office. Contrary to popular belief, this is not part of his job. And furthermore, nowhere can it be found in the Pennsylvania Crime Codes that a suspect is allowed or justified in any attempt to injure or take the life of a police officer.


Tomorrow: The verdict.

   
 

Carle Place is a very small dot on the map of Nassau County, Long Island, N.Y. It is a quiet bedroom community, not much different now from what it was in the 1960s, when Jeffrey Cooperstein was growing up there.

"It was the kind of place where kids had their own cars and hung out at the Carvel store," recalls Cooperstein's older brother, Gary.

There were two black families in town. Jeffrey Cooperstein had one black classmate at Carle Place High School -- Wayne Boyd, the son of a New York City police officer.

The younger Cooperstein played football in high school. "But not real well," his brother says. "He was always a big kid, but a big kid who never got into a fight."

Gary Cooperstein, a corporate lawyer like his father before him, cannot remember a time when his brother did not want to be a cop. In 1979, that wish came true. He was hired as a police officer in Loveland, Colo., a city of 50,000 on the edge of the Rocky Mountain National Park.

"There is not much violent crime here," says Loveland's chief of police, Tom Wagoner. Nor are there many black people. There are, in fact, more sculptors in Loveland than blacks.

Lisa Fitch was 16 when she met Cooperstein. He had just turned 20 and was living in Denver, as was she. They began living together the following year. Fitch and Cooperstein married in 1982. She bore him a son, Joel, now 17. They divorced in 1988.

"I'll bet you couldn't find anyone in Loveland who'd call Jeff a bully," says Fitch, who since has remarried and works for the Arapahoe County Sheriff's Department. "I read things that people have said about him since [the death of Deron Grimmitt], and I wonder who they are talking about. The [allegations] about him being a racist? When I met him, all his friends were black."

In November 1983, 2 ounces of cocaine disappeared from the evidence locker at the Loveland Police Department. An investigation ensued. Lawrence Seib, then the police chief, came to believe Cooperstein had stolen the drugs. Cooperstein denied the allegation, but he refused a polygraph test and, according to a story in the Loveland Reporter-Herald, refused to cooperate with investigators.

Seib told the newspaper he had questioned Cooperstein a few days before the drugs vanished about the officer's alleged use of cocaine. Cooperstein had admitted being a user, Seib said. The chief threatened to make the confession public unless Cooperstein cooperated with the department's internal probe.

On Nov. 28, 1984, Cooperstein resigned. Five days later, the department issued a news release suggesting that Cooperstein's resignation cleared up the theft. The chief also dispatched two detectives to Denver International Airport to search Cooperstein's luggage while the former officer waited to board a flight to New York.

Cooperstein subsequently sued the police department and the city of Loveland for $3.5 million, including punitive damages. The suit was settled out of court.

Fitch says she vaguely remembers hearing the missing cocaine found its way to a party attended by several Loveland policemen. Cooperstein never used drugs in her presence, she says.

Cooperstein refuses to discuss the Loveland lawsuit, citing a gag order imposed by the judge when the matter was settled. But he denies using recreational drugs. "I don't even drink much," he says.

Shortly after resigning in Loveland, Cooperstein accepted a job as a bodyguard for the family of Denver industrialist Marvin Davis. He subsequently moved back to Long Island and worked in private security there.

Early in 1993, Cooperstein applied to join the Pittsburgh Police Bureau, which had an unusually high number of vacancies at the time. In an effort to cut the department's payroll, Mayor Sophie Masloff had offered early retirement to veteran officers, thinking scores might accept. Instead, hundreds did.

Cooperstein took and passed a lie-detector test. He underwent a background check. "[The Pittsburgh police] had my personnel file from Loveland," he points out.

On March 8, 1993, Jeffrey Lynn Cooperstein became a Pittsburgh officer. The Blue Knight was not yet a twinkle in his eye.

A problem with the chief

 
Angered by the increasingly personal attacks made against him on the Blue Knight Web site, Pittsburgh Police Chief Robert W. McNeilly Jr. returned fire on a Web site of his own, challenging the Blue Knight to reveal his identity. McNeilly's teen-age daughter was reduced to tears by one particularly vile harangue. (John Beale, Post-Gazette) 

For the record, Cooperstein says he is not the Blue Knight. There is no Blue Knight, he says. It is a composite character, a "conglomeration of ideas of officers, of overheard statements and lines from old movies."

Perhaps. But Cooperstein lived at the Blue Knight's billing address and paid the Knight's bills when they arrived. He may not have written every word that appeared on the Blue Knight's Web site, but neither did Walt Disney draw every line of every Mickey Mouse cartoon. The character was nonetheless Disney's creation.

Even in infancy, the Blue Knight was no Mickey Mouse. He was a street cop, complete with a street cop's salty vocabulary and mix of cynicism and idealism. He had a street cop's healthy disdain for perpetrators and politicians.

"I represent the City of Pittsburgh, the Commonwealth of Pennsylvania and the Government of the United States without passion or prejudice," he wrote. "All members of the public either obey the laws or break the laws. The members of the Bureau of Police are entrusted to enforce the laws which keep civilized society intact. When I arrive at a critical scene, I will do my best to [ensure] the safety of the victims and every law-abiding citizen."

Officer Cooperstein, meanwhile, was assigned to Zone 2 in the Hill District, one of the six zones into which the city of Pittsburgh is divided for purposes of police jurisdiction. The Zone 2 commander then happened to be Robert W. McNeilly Jr.

Over the next five years, their relationship would curdle into mutual contempt. Cooperstein would hound McNeilly into resigning from the Fraternal Order or Police. McNeilly, a former Marine Corps sniper, would become the target of increasingly vicious and frequent attacks on the Blue Knight Web site. But at this early juncture in their relationship, they were barely aware of each other's existence.

Cooperstein was newly diagnosed with multiple sclerosis, an incurable disease of the nervous system that sapped his energy and made it difficult for him to walk. As his sick days mounted, he began taking "X days," the department's term for unpaid sick leave.

Cooperstein was working as a bouncer at a Strip District club called Cloud 9. Off-duty officers are permitted to moonlight but must get departmental permission to work in security, where they may be required to use their police powers. Cooperstein had not asked permission, and McNeilly found out. He reprimanded the officer and ordered him to desist.

"That was when I learned he had MS," McNeilly recalls. "He asked to see me and told me he had to work [security] details to pay for the medication he needed, which was expensive. So I offered him a deal: He could go on working the off-duty job as long as he didn't take any more X days."

Cooperstein agreed, McNeilly says, but did not hold up his end of the bargain and soon was ordered to give up the part-time job.

"He was mad at me," says McNeilly.

Not so, says Cooperstein. "I liked him at that point," he says of McNeilly. "He was a good commander. He disciplined me, and I had no problem with that."

He did have problems with McNeilly's successor, Cmdr. Linda Barrone, who took over Zone 2 when McNeilly was promoted to chief of police. Barrone insisted on receiving a doctor's written explanation for each day he was absent, paid or not. Cooperstein thought such notes were superfluous given the chronic nature of his disease. He bristled when Barrone began punishing his unexcused truancy by marking him absent without leave.

His request for a meeting with McNeilly to discuss the problem was denied. He filed a written request for special duty in light of his illness. Denied.

He asked to be assigned a cruiser with air conditioning in summer. Denied.

"They would leave that car in the parking lot rather than issue it to me," he says. "I would hang copies of the Americans With Disabilities Act on the bulletin board. Somebody would rip them down."

He filed a complaint with the Human Relations Commission and eventually sued the department. He left a hospital bed on one occasion and reported to work with an IV shunt still in his arm rather than give in to Barrone's demand that he bring a written excuse from his physician or be listed AWOL.

Someone began writing snide comments about Barrone in Zone 2's log book. And the Blue Knight's diatribes were becoming increasingly personal and vituperative with each passing week. McNeilly was accused in the coarsest language imaginable of everything from misappropriating federal funds to beating his wife, Catherine, a Pittsburgh police commander. The latter accusation became the basis of such widespread gossip that the chief felt compelled to confront it in an FOP meeting in an effort to put it to rest.

Warned by the city's Law Department not to launch any witch hunts, McNeilly returned fire on a Web site of his own. He referred to himself as the White Knight, apparently unaware of that appellation's infamous roots in the Ku Klux Klan.

Truth does not cloak itself in anonymity, he wrote. He challenged the Blue Knight to reveal his identity -- a suggestion that provoked a derisive response on the Blue Knight's Web page.

McNeilly says he never hated the Blue Knight, even when he saw his teen-age daughter reduced to tears by one particularly vile harangue.

"Every Sunday in church, I pray for the people who write that stuff," says McNeilly. "Something evil has attached itself to their thoughts."

In early December 1998, the Blue Knight published a morsel of news: McNeilly was thinking of having bullet-proof glass installed at police headquarters.

It was true. A man had walked into a police station in Washington, D.C., and opened fire without warning. Among the gunman's victims were unnamed civilian employees and a female FBI agent from Pittsburgh who happened to be in the wrong place at the wrong time. Her husband sued successfully, saying her death resulted from a disregard for a danger the police department should have foreseen. In the wake of that episode, McNeilly had suggested installing bulletproof glass or metal detectors or both at police headquarters here.

The Blue Knight put his own unique spin on McNeilly's proposal. It was the result of the chief's paranoia, he wrote. Knowing the rank and file despised him, McNeilly feared one of his own officers might try to kill him, the Blue Knight said.

That thought never crossed his mind, McNeilly says. At least not until he read the Blue Knight's take on the proposed security upgrade at headquarters. At which point, he says, it occurred to him the Blue Knight himself might be plotting an assassination attempt. The chief then contacted the FBI's Behavioral Science Unit at Quantico, Va., and asked if their experts would be willing to analyze the Blue Knight's writing and compile a psychological profile of the author. The feds agreed.

McNeilly gathered up a packet to forward to Quantico, planning to send it the following morning -- Dec. 21, 1998. But after Cooperstein shot Deron Grimmitt in the small hours of that morning, the chief sent the Blue Knight folder to Superintendent Thomas Sturgeon of the Allegheny County Police, whose officers were charged with investigating the shooting because a city cop was involved.

In an accompanying letter dated Dec. 23, McNeilly wrote in part:

"Approximately a year and a half ago a person who claimed to be a [Pittsburgh] police officer began posting writings on the Internet under the name of the Blue Knight. Many of his writings appeared to be hate-filled, derogatory, racist and sexist in nature ...

"After I spoke with you, I met with Deputy Chief [Charles] Moffatt, Assistant Chief [William] Mullen and Commander [Ron] Freeman in my office to discuss our cooperation with your investigation of the shooting incident that occurred on Dec. 21, 1998. During that conversation, Commander Freeman advised me that he had previously had discussions with Officer Jeffrey Cooperstein [in which] Cooperstein admitted he was the writer of these articles. It had been hinted throughout the department that he was the Blue Knight.

"... I feel that in order for you to do a complete investigation into the shooting, you should be provided a copy of all the writings attributed to the Blue Knight. Attached please find as many copies of his various articles as we were able to locate at this time."

It was taken for granted within the ranks that McNeilly would fire Cooperstein long before a jury decided his fate. In fact, the FOP received formal notification of Cooperstein's dismissal Feb. 9, 1999, almost a year before his trial began.

A charge of murder

 
It was no surprise when Stephen A. Zappala Jr., Allegheny County's newly elected district attorney, accepted the recommendation of Coroner Dr. Cyril H. Wecht after an open inquest that Cooperstein be tried for homicide. Zappala had little to lose by leaving a jury that option -- and perhaps something to gain. (Lake Fong, Post-Gazette) 

No member of the Pittsburgh police ever had been tried for murder as the result of a shot fired in the line of duty. It was a foregone conclusion that Cooperstein would be the first.

The death of Jonny Gammage, a black motorist stopped by police for tapping his brakes as he drove through the town of Brentwood late one night in 1995, was a wound not yet fully healed. The chief of police clearly considered Cooperstein a menace to the community. None of the four shots that Cooperstein fired had pierced the windshield of Deron Grimmitt's car. The bullet that killed Grimmitt had come through the driver's side window, which seemed to contradict Cooperstein's contention that he had been forced to fire to avoid being run over.

So it was no surprise when Coroner Dr. Cyril H. Wecht recommended following an open inquest that Cooperstein be tried for homicide. Just as it was no surprise that Stephen A. Zappala Jr., the county's newly elected district attorney, accepted that recommendation.

The surprise was that the charges against Cooperstein included first-degree murder -- a killing with malice aforethought. Under the open charge of homicide filed by the district attorney, a jury could find Cooperstein guilty of crimes ranging from first-degree murder down to involuntary manslaughter. (He was charged also with aggravated assault on Curtis Grimmitt as a result of injuries suffered by Curtis in the crash that followed the shooting. But if the jury found Cooperstein not guilty of homicide, it would follow that he was not guilty of the lesser charge as well.)

Did Zappala really believe he could convict Cooperstein of first-degree murder? Probably not. But he had little to lose by leaving a jury that option. And from a political standpoint, he had something to gain. Black voters might resent it if Cooperstein were convicted of something less than first-degree murder, but they would not blame him.

The task of assigning a judge in the Criminal Division of Allegheny County's Common Pleas Court to hear the case fell to David Cercone, the division's chief administrative judge. Knowing this trial would command the community's attention like few others, Cercone selected a jurist he considered witty, wise and, above all, impartial. Namely, David Cercone.

That decision raised some eyebrows in the county courthouse. Cercone was in the process of moving from the criminal to the civil division. The transfer would take effect before the Cooperstein trial began. Colleagues whispered that Cercone was keeping this case only because its high profile dovetailed nicely with his aspirations to become a federal judge.

There was never a doubt who would prosecute Cooperstein. Edward Borkowski, the deputy district attorney in charge of the homicide division, would do it himself.

With his tousled blond hair, Borkowski, 48, resembles a grown-up Dennis the Menace. His hobby is work.

A lifelong bachelor, he is often at work at 6 o'clock in the morning and rarely goes home to Lawrenceville until well after dark. Sometimes he doesn't go home at all, which is why he keeps a change of clothing in the closet of his fourth-floor office. He works weekends as well as evenings and almost never takes a vacation. In his free time, what there is of it, he teaches an evidence course at Duquesne University, where he earned his law degree.

Slender to start with, Borkowski had lost about 20 pounds in the year between Cooperstein's indictment and the start of the trial. He habitually stayed in the courtroom and worked through the lunch break, and his diet consisted mainly of wedding soup and plain yogurt, washed down by Diet Pepsi.

From Zappala's perspective, a not-guilty verdict in this case was not the worst outcome imaginable. A worst-case scenario -- for the district attorney and perhaps for the community as well -- would be no trial, a continuing public furor over the death of Deron Grimmitt and the possibility that federal prosecutors would bring charges against Cooperstein where he had brought none.

But for Borkowski, losing was not an acceptable option. He sincerely believed that the shot that killed Deron Grimmitt was not justifiable. He did not delude himself that he was likely to persuade a jury to convict Cooperstein of first-degree murder, although he thought such a verdict would not be unjust.

The defense team was a cast of thousands. Cooperstein began by hiring Jim Ecker, a Downtown attorney with a long history of representing police officers in trouble. The list included John Vojtas, the Brentwood patrolman acquitted of wrongdoing in the Gammage case.

As he often does, Ecker, 70, retained co-counsel. He started with Charles LoPresti, 41, former assistant DA with the soul of a stand-up comic trapped in a sumo wrestler's body. LoPresti, who alternates between Marlboros and The Patch, would handle the forensic evidence.

Samuel Reich, 64, the brother of sports agent Tom Reich, joined the team about six months before the start of the trial. Initially responsible only for the opening and closing arguments, Reich eventually became the lead counsel for the defense in all but title.

Reich brought with him an associate, Jay Reisinger, 30, to write the defense's myriad written motions and assist in research.

Gary Cooperstein, 47, is a partner in a New York-based firm that specializes in complex business transactions. He had no experience in criminal law. But as the trial progressed, he became a de facto participant in his younger brother's defense.

Borkowski would make do with a single assistant, Stephie Fernsler, a 29-year-old assistant district attorney with four years' experience, mostly in the appellate division. Fernsler would write the prosecution's briefs but rarely appear in the courtroom. The prosecution would be a one-man show.

A friend on the force

Choosing a jury is an inexact science. There is a school of thought within the legal profession that holds it is also a waste of time, that justice would be just as well served if the lawyers agreed to accept the first 12 prospective jurors who walked through the door. Neither side in this case subscribed to that theory, however.

The defense is hoping to stock the jury with college-educated women in their late 30s or early 40s.

Borkowski is looking for people of color, partly to avoid the embarrassment of having a white police officer accused of killing a black man tried by an all-white jury and partly because they are less likely to side with a cop as a knee-jerk reflex.

During a break in jury selection, Reich suggests the defendant "go to lunch with your friends if you like."

"I don't have any friends," Cooperstein says glumly.

"Liar!" Kim Stanley says, getting up from her seat in the sparsely occupied first-row of spectators. "I'm your friend."

Whatever else he denies, Jeff Cooperstein cannot deny that.

Officer Kim Stanley, Badge 3734, is often referred to by other cops as Cooperstein's "girlfriend." She isn't. They met shortly after her graduation from Indiana University of Pennsylvania in 1992. She wasn't an officer then, and neither was he. They dated briefly, until she realized he was still very much in love with his second wife, Marla, although the couple had split.

"He'd moved to Pittsburgh to marry her," Stanley recalls. "Then she moved to Florida when they got divorced. Jeff was crushed. Marla's the love of his life. At some point, I realized I couldn't compete, and at that point, he became my best friend. I was their maid of honor when he and Marla remarried."

"Tell me about him," a reporter requests.

"He is," she says, "the gentlest man I've ever met. He writes music and sings and plays 12-string guitar. I have three rabbits I keep in the basement. They're afraid of their own shadow. I watch this 250-pound man get down on his belly and rub noses with them, and they adore him.

"Is he a wiseacre? Absolutely. He sees the humor in situations, and some of the stuff you encounter on this job is fundamentally entertaining."

She has taken a leave of absence to attend this trial. It is, in a sense, her trial, too. One of the people authorized to write on the Blue Knight Web site uses the log-in name Kim 3734. If Cooperstein should be convicted, Stanley believes, her own days in the department are numbered. McNeilly will find a reason to fire her.

"Jeff is very idealistic," she says. "So am I. If you're living in Nazi Germany and not speaking out, then you're a collaborator."

Slow going in voir dire

Ten jurors have been empaneled by the close of the second day of the trial. The original jury panel has been exhausted in the process. Voir dire, the process of screening jurors, continues with a second set of 50 prospects. And the going is slow. After the lawyers go 0-for-the-following-morning, only the most optimistic observers are betting that jury selection will be completed before the week is out. The odds change only slightly when an 11th juror joins the panel early that afternoon.

The prosecutor has used all seven of his pre-emptive challenges at this point. The defense still has five to spend. What Borkowski does not know is this: Two of his precious pre-empts were squandered. In both cases, the defense would have vetoed the prospective juror if he had not done so first.

Lawyers have widespread latitude when it comes to pre-emptive challenges, generally speaking. There is one exception, though. The law of the land gives citizens the right to be jurors regardless of race. A judge who suspects that counsel is using a pre-emptive challenge in violation of that law is required to intercede. And Cercone is about to do exactly that.

Reich asks Richard Robinson of Penn Hills if Robinson has heard that Pittsburgh police officers routinely use excessive force when dealing with black suspects. Robinson, who is black, says he has not, but adds that he has "some concerns" about the Gammage case in that regard, even though the Pittsburgh Police had nothing to do with Gammage's death. Reich's antennae twitch. The defense team caucuses and decides to veto Robinson. The defendant himself casts the lone dissenting vote.

Borkowski, bristling, appeals to Cercone. Fifteen minutes later, the lawyers emerge from the judge's chambers, and Borkowski relays Cercone's ruling. "Seat the juror," he snaps.

Robinson is juror No. 12. All that remains now to is to pick the alternates. As it happens, that task will be accomplished before the afternoon is out.

Six of the jurors and all the alternates are women. Two of the jurors -- one man and one woman -- are black. One of the women is a Latino.

All of the alternates are white women. One of the four will move up to the varsity when the youngest member of the jury begs off after his grandfather dies midway through the trial.

"It's a shame," Reich will confide to a colleague after Cercone reluctantly excuses the young man. "I thought based on his body language, he was with us."

Borkowski's assistant, Fernsler, will beg to differ. "Young guys," she tells an acquaintance, "tend not to like cops."

There are two matters to settle before the jury starts work. In open court Friday, Cercone rules on both.

He deals with the lesser issue first. The prosecution has subpoenaed Cooperstein's doctor, Benjamin Eidelman. The prosecution wants to know what medication the defendant was taking at the time of the shooting and how that might have affected him. The physician is reluctant to testify. The judge quashes the subpoena, meaning Eidelman's off the hook.

Eidelman's testimony would not have been relevant in any event, since the defense has no intention of claiming that Cooperstein was impaired, either physically or mentally, by his medication. To the contrary, Cooperstein insists he was not. And he is probably right. While the Pittsburgh police do not have a list of prescription drugs that render an officer unfit for street duty, the Pennsylvania State Police do. None of Cooperstein's medications appear on that list.

Issue No. 2, however, is critical. The prosecution plans to use selected excerpts from the Blue Knight's essays to support the contention that Cooperstein may have been predisposed to shoot Deron Grimmitt first and ask questions afterward. The defense wants Cercone to prohibit any and all references to the Blue Knight.

Reich mounts a three-pronged argument:

1. Even if the Blue Knight is Cooperstein, he is Cooperstein among others -- and the commonwealth has no idea who wrote what.

2. Even if Cooperstein personally had written every word of every Blue Knight essay, one could not infer his state of mind on the morning of Dec. 21, 1998, from something he wrote in, say, the summer of 1997.

3. The potential of such evidence to prejudice the jury against Cooperstein greatly exceeds whatever small probative value it might have.

None of those arguments is without merit, but a certain irony attaches to them nonetheless. Given a public forum in which to embrace and explain the Blue Knight's ideals, Cooperstein is attempting instead to distance himself from his alter ego. On advice of counsel, of course.

Cercone is not prepared to rule that Cooperstein is in fact the Blue Knight, but he is willing to let the jury decide. And while he is not about to let Borkowski read into evidence the collected works of the Blue Knight, he will permit the prosecutor to quote selected excerpts -- each word preapproved by the judge.

Cercone may think he can open this Pandora's box only a crack, but Reich doubts it. "The reality of life is that if any of that material comes in, then we've got to explain a lot of other parts of it," he protests.

Reich is arguing mostly for the sake of the record. But he also is engaged in damage control. The fewer Blue Knight excerpts Cercone ends up admitting, the happier Reich will be.

Should Cooperstein testify?

In light of Cercone's Blue Knight ruling, the defense has a decision to make.

Does Cooperstein testify, or does he not?

He would fare well on direct examination, his lawyers believe.

He might look like an enforcer for the Sopranos, but he does not come across that way in conversation. On the other hand, he is passionate about his beliefs, and that passion is not very far from the surface. All Borkowski would have to do to provoke him is mention the chief of police.

But now that the jurors are to hear Cooperstein linked to the Blue Knight and listen to some of his Internet brimstone and bluster, there may be no real choice but to let him take the stand and explain why he wrote what he did.

In the end, his lawyers elect to postpone their decision until after the commonwealth rests its case.

Neutralizing the Blue Knight

Monday morning, Jan. 24, day five of the trial. Snow on the ground. More snow coming. Hallways of the county Courthouse overflowing with officers and suspects. Can't tell the narcs from the junkies without a scorecard.

It's standing room only in Courtroom 313. The spectators have segregated themselves like guests at a wedding ceremony -- bride's friends and family on one side of the aisle, bridegroom's on the other.

We are arguing about arguments.

Borkowski wants Cercone to limit what Reich can say about Deron Grimmitt in his opening. In particular, he does not want Reich to mention any specific charges pending against Deron at the time of his death.

He has been around the block once or twice, has the deputy DA they call Mr. Death. He knows how the game is played. Rare is the murder trial in which the defendant's attorneys do not attempt to portray the deceased as a person whose death left the world a far better place. And truth be told, Deron Grimmitt was no saint.

Reich tells Cercone he has no intention of getting into specifics. He plans merely to mention that Deron Grimmitt was a fugitive trying desperately to avoid arrest on the morning he died.

Reich is a polished orator, but he is also a master at nonverbal communication. He has a sign language all his own. A flutter of his hands means, "You know and I know the prosecution is being unreasonable." Two palms extended mean, "I acknowledge that you are in charge here, Your Honor, wrong though you are." Some of his most persuasive arguments do not show up in trial transcripts, since they are delivered by semaphore.

"Fugitive" wins Cercone's blessing. "Gammage" does not. Borkowski assures Cercone he will not make any reference to the ill-fated Jonny Gammage in his opening remarks.

It will occur to the jurors nonetheless that Deron Grimmitt, like Jonny Gammage, was a black male who ran afoul of white police officers while out driving late at night and died as a result of the encounter. If they need a reminder, spectators seated a few yards away will provide it in the form of campaign-button-style pins bearing Gammage's picture and the inscription that reads "Justice for Gammage."

Beyond their superficial similarities, though, the cases are very different. Gammage was stopped, supposedly, for tapping his brakes on a downhill grade while driving at or under the posted speed limit. He did not try to elude police by racing at speeds in excess of 70 mph. He was (a schoolboy prank and a speeding ticket or two notwithstanding) a model citizen.

The ground rules agreed upon, Cercone dispatches his tipstaff, Charles Gallo, to fetch the jurors from the fourth-floor bullpen where they have been waiting. Like boxers, they must receive instructions before the opening bell.

Pittsburgh juries are almost never sequestered. This one is no exception. Cercone commands the jurors to abstain from reading newspapers or listening to broadcasts that might mention this case. Do not discuss anything pertaining to the trial with each other or anybody else, he says.

Will all 16 of them comply with those orders? Who knows? But Cercone has done his duty, and the floor now belongs to Borkowski.

"December 21, 3:30 in the morning," he says. "Four officers in the Zone 6 section were performing an investigative stop . . ."

No "Good morning." No preamble of any sort. Just When, Who, Where. And What is on the way:

"This officer," Borkowski says of Cooperstein, "did not reasonably believe he was in danger. The sanctions he applied were not appropriate."

All right, now where's the Why?

The Why is critical, is it not? If we are asking these jurors to convict this defendant of first-degree murder, don't we owe it to them to let them in on his motive? Do we think he's a thrill-killer? A psychopath? Did he shoot Deron Grimmitt because Grimmitt was black?

That is the missing element in Borkowski's opening statement -- and in the prosecution's case. That's why the Blue Knight is so important. Because without him, what reason is there to think Cooperstein acted with malicious intent? But if the Blue Knight is a racist or a powder keg of rage awaiting a spark, then maybe Cooperstein killed Deron Grimmitt because he could.

Now it is Reich's turn. "Ladies and gentlemen of the jury," he begins, "this case concerns one officer."

Translation: One cop. This one. One fatal incident. This one. Your duty here is to see to it that this justice prevails in this case, whether or not it did in the death of Jonny Gammage.

"[The defendant] was scared, and in a split second, he had to decide what to do."

Translation: You're looking for a credible motive? Here it is: My guy was scared. Just like you would have been if it had been you standing out there peering into the headlights.

In theory, the opening statement is a summation, not an argument. But Reich knows that in bare-knuckles reality, this is his first chance to argue his case.

"The jeopardy was created by the unlawful and dangerous conduct of the Grimmitt brothers," he asserts.

"We will suggest to you that Curtis Grimmitt cannot and should not be believed ....

"Use-of-force experts will tell you the shooting was justified."

Now comes the ticklish part, the part he had hoped to avoid. He must begin now to neutralize the Blue Knight.

"We're going to get sidetracked by certain portions of the prosecution evidence," he warns the jurors. "The prosecution is going to tell you that my client is someone known as the Blue Knight."

The writings of the Blue Knight have to do with "union organizing," he suggests for the first and last time in this trial. They have nothing to do with the events on the morning of Dec. 21, 1998.

After reading the Blue Knight, Reich acknowledges, some jurors may conclude that the defendant is "a loud-mouth jerk who ought to have his computer taken away from him." Just remember, he urges them: Cooperstein isn't charged with being a loud-mouthed jerk.

Reich now makes a startling assertion, one he will never explain or repeat. "The prosecution itself is going to prove the writings of the Blue Knight are irrelevant," he says, his voice rising to a dramatic crescendo. "They'll prove it! I won't have to."

He turns and looks at Cooperstein, inviting the jurors' gaze to follow. The defendant, his teeth clenched, the muscles in his jaw writhing, is staring at the desk in front of him.

"He saw that car," Reich says, "and he had his gun. And he waited. And he waited. And he waited. He violated his own principles. He waited until it was almost too late.

"There he is -- the big-talker. The one who suggests that [a cop must] survive at any cost. He waited. He didn't want to be involved in something like this."

Trials are not won in opening statements, lawyers will tell you. Lost, maybe, but never won. Maybe that's just as well for Borkowski. When Reich sits down, some of the jurors look as though they would like to applaud.



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