BB Guns, Circuses, Blackberrys, and the Breakdown of Justice: A reportback from Tyquan Rivera's pretrial hearing

Recently, members of Rochester Indymedia sat in on the latest iteration of Tyquan Rivera's court case. We were moved to witness this process first-hand because of the disturbing imbalance in the corporate media coverage of the proceedings we'd seen thus far. According to an eyewitness present at the time, the alleged shooting of the police officer by Rivera was precipitated by police brutality, an un-provoked beating that officers inflicted on Rivera and others, just prior to the shooting. This information, well known in Rivera's community, has only been reported in one media outlet, a morning radio program. We found the experience of watching the court proceedings in Rivera's case to be a strange brew of truth being lost between the lines of the prosecution's witness testimonies mixed up with absurdly dysfunctional, if not incompetent, corporate media behavior. We'd like to share some of our observations that day with our Indymedia readers.

June 11, 2009: Tyquan Rivera was in Judge Joseph Valentino's Supreme Court for a pretrial hearing regarding testimony from witnesses who saw Rivera near the scene of the shooting of Rochester police officer Anthony DiPonzio on January 31, 2009, or knew him before the shooting. Rivera, 15-years-old, was charged earlier this year with attempted murder in the second degree and assault in the first degree. If convicted, Rivera could be imprisoned for up to 10 years. By virtue of being 14-years-old when the shooting occurred, he was spared being sentenced as an adult. District Attorney Mike Green was arguing the case for the state; Defense Attorney Culver Barr was present to represent Rivera.

D.A. Green examined several witnesses in order to establish the identity of Rivera for the trial in August as well as to argue for the admission of certain evidence. Mr. Barr cross-examined D.A. Green's witnesses and argued for the repression of some evidence. Mr. Barr was a substitute defense attorney for Rivera as George Conaty was in the hospital recovering from a medical procedure.

Rivera entered the courtroom escorted by three looming deputies. He seemed calm and alert in his small frame; he looked sharp in khakis, blue oxford button-down, and yellow tie. And he looked very young. The only sound heard from him was the jingling of chains—wrists and ankles shacked with chains linked to a belt around his waist.

Before the hearing began, a deputy commented to the judge that "the kid" was in the hall. The word "kid" was to be bandied about the courtroom throughout the hearing. If we're talking about "kids" as in children or adolescents, then, surely the vilification of Rivera as a monster worthy of death in the initial reports put out by corporate media, are immoral, abusive, and destructive to our community. However, if the word "kid" means "baby goat" as in sheep or goats to the slaughter, then the usage takes on a cynical and disturbing meaning–one that makes perfect sense within the context of our system of injustice. Instead of presuming innocence as our legal system supposedly grants those accused of crimes, we have media institutions and police conveying guilt before a trial has even transpired and a verdict rendered.

As the hearing started, Mr. Barr asked the judge to release Rivera from his shackles for the rest of the proceeding. Judge Valentino asked the D.A. if there were any objections. Green had none. The judge then asked the deputies if there were any reasons not to release Rivera and they said that there had been no problems [prior to the hearing]. With that, Judge Valentino ordered Rivera's shackles removed. At this point one deputy asked, "Is one [handcuff] sufficient or would you like both [handcuffs and leg shackles removed]?" "Both," replied the judge tersely. Judge Valentino explained to the deputy that if there were no previous problems with Rivera, then there was no need to keep him restrained. This small exchange underscored the tension in the room as the deputy, somewhat hesitantly, moved Rivera out into the holding area with two other deputies where the only audible sound was the dropping of chains on the floor. Rivera returned with his escorts and sat down, hunched forward on the table, until the end of the hearing.

In the course of the day's hearing, only Rochester Police Department officers and investigators were sworn in to testify. Investigators Kenneth Coniglio Sr. and Thomas Cassidy were questioned about depositions they took and photo arrays they showed to people living in the neighborhood where the alleged shooting took place. Interestingly, none of the people these investigators questioned were able to identify Rivera by either his first or last name. A woman living one or two doors away from Rivera, who spoke to these investigators, was only able to identify him as, "a little light-skinned kid." Another person referred to him as "oohie" or "hoohie."

An objection was raised by Mr. Barr when patrol officer Bing Reaves Jr. testified for the prosecution that while riding with a field training officer, Rivera was pointed out as a "lookout and had a walkie-talkie,” the insinuation being that Rivera was a drug dealer and criminal. (It's worth mentioning that many Rochesterians have phones with walkie-talkie options and are not drug traffickers.) Although officer Reaves' testimony impugned Rivera's character with unverifiable hearsay unrelated to the current case, the prosecution argued that there was no reason to suppress the officer's testimony identifying Rivera because the questioning established the fact that Reaves was aware of and knew Rivera before the shooting.

A second statement by officer Reaves further negatively characterized Rivera as uncooperative and sullen when the officer told the court that a year before the shooting and perhaps a year after the sighting with the FTO, Reaves went to Rivera's house for a domestic disturbance call. The officer testified that he tried to talk to Rivera for 10 minutes with no acknowledgment of his questioning.

A "confirmatory identification," what Reaves and other witnesses were being examined for in the hearing is, "A person, either a civilian or a police officer, [who] establishes that they know a second person. The object of this pretrial identification procedure is to establish that the witness is a long-time acquaintance of the person being identified, and there is very little chance that the witness is identifying the wrong person during the course of the subsequent trial. Confirmatory identification is used to avoid a suppression hearing which would throw the testimony out [emphasis added]," according to a clerk at the Seventh Judicial District Law Library. It seemed odd that a confirmatory identification was being pursued with an officer who in three years saw Rivera three times, one of which was driving by him in a car and another time meeting with him for 10 minutes, both years before the shooting where Reaves asked Rivera and two passengers to exit a gray van near the crime scene, according to Reaves' testimony. It seems that, baring law definitions, Reaves didn't have a long-time acquaintance with Rivera and therefore the chance of error on the officer's part could be greater.

Judge Valentino agreed with the prosecution, overruling Mr. Barr's objection, noting that there was, "no jury to prejudice" in the courtroom. While there was no trial jury present, the court of public opinion was in full attendance represented by nearly every corporate TV station, radio station, and newspaper in the area. Their constituency was, no doubt, swayed by their coverage of these unfavorable and unrelated remarks by the officer whose purpose at the hearing was to establish Rivera's identity.

Thomas Cassidy, another investigator for the RPD, was called as a witness by the prosecution to enter testimony in regards to a conversation, held on February 16, 2009, with a neighbor and her son who allegedly knew Rivera. The 13-year-old, allegedly sold what he thought was a BB gun to someone named "oohie" or "hoohie" for $35, who was later identified by Cassidy as Rivera. The 13-year-old was shown a photo array—six faces on a page—and was asked by Cassidy to point to the person that was sold the BB gun. According to the investigator, the 13-year-old pointed at the image of Rivera. The investigator then asked the boy to put his initials by the image, at which point, his mother intervened and informed Cassidy that her son wouldn't sign or initial anything. After being briefly cross-examined by the defense, the investigator was excused.

As the hearing ended, the judge read aloud a Freedom of Information Act request filed by Channel 10 to release a deposition from one of the witnesses. The judge tabled the request.

Mr. Barr, in the outer hall after the hearing ended, explained to the media that some of the evidence from the D.A. was deemed inadmissible because it violated the terms of Rivera's surrender to the authorities, "namely that the police had agreed not to question Rivera after he voluntarily surrendered himself." The police questioned him anyway. D.A. Green didn't object to the exclusion of that evidence.

During the question and answer period with D.A. Green, a local TV news reporter referred to testimony regarding a 13-year-old allegedly selling a BB gun for $35 to Rivera as testimony about the sale of a rifle to Rivera that was used in the shooting of officer DiPonzio. D.A. Green did nothing to correct the reporter's mistake. In hindsight the "mistake" by the corporate media–where asking questions to the D.A. about an alleged BB gun sale to Rivera for $35 by a 13-year-old is transformed into the sale of a rifle to Rivera, in fact the rifle that shot officer DiPonzio–is a simple matter of distraction: you see, reporters may have been too distracted by their cell phones and "Blackberrys" which were abuzz in the courtroom despite being warned by bailiffs repeatedly to shut them off for the duration of the proceedings. Then in a complete non sequitur, another TV reporter, on film, started interviewing D.A. Green about his "Blackberry,"–when he used it, what was on it, how fast he could text, what color it was and other nonsensical questions–all in all a pretty surreal and disturbing day.

Related to the case, but with very little to no coverage by the corporate news, was an eye-witness email testifying to police brutality against Rivera, as read over the airwaves of radio station WDKX on Feb. 4th, 2009. The alleged police brutality took place perhaps moments before the shooting. The email alleged that police entered Rivera's home without a warrant, that the witness saw Rivera get kicked and punched repeatedly by police—perhaps pushed down a flight of stairs, and finally, that Rivera retrieved a gun of some kind before firing into police.

A decision on the FOIA request by Channel 10, an update on Mr. Conaty's medical situation, and rulings on the evidence and testimony submitted, will be decided on July 1st in Judge Valentino's courtroom.