No Ballistics, No DNA, No Fingerprints, No Eyewitness: Somehow Jury Finds 15 Year-old Guilty

This article continues Rochester Indymedia's ongoing coverage of the Tyquan L. Rivera trial. Rivera, 15, a local, youth of color accused and convicted of assault in the first degree and attempted murder in the second degree, was found guilty despite there being no physical evidence or eyewitness testimony against him in the shooting Rochester police officer Anthony DiPonzio last January. Rivera will be sentenced later this fall in Monroe County Supreme Court. Rochester Indymedia reporters decided to cover the proceedings from the beginning to the end after we observed a disturbing imbalance of coverage against Rivera in the corporate media's stories about the case.

Members of the collective were present in Judge Joseph Valentino's court every day, all day for weeks of pre-trial evidentiary hearings, jury selection, and Rivera's trial. What emerged over time from our observations was a picture of systemic racism in our county judiciary and law enforcement carried out through a determined use of police intimidation and falsification. The following article recounts many instances in which these tactics were used by local authorities against Rivera and his family, which ultimately culminated in a trial-cum grand media spectacle. Presumably, this spectacle and subsequent legal injustice was staged–complete with live television coverage in the courtroom–to instill the idea, in communities of color, that anyone involved in any sort of altercation with the police, no matter how circumstantial (save passively standing by and taking whatever brutality the police decided to dish out) would result in the loss of one's liberty and way of life.

Specifically, in this article, you'll read about the verdict, the treatment of Wanda Lise–Rivera's mother–by police, an updated time line of events on January 31st, the direction of future articles in the series, and our observations from court.

The verdict is read

Just outside of Judge Joseph Valentino's courtroom on Friday, September 4th, a disordered line of 30-40 police officers and their families–25 of whom were in full uniform–waited for sheriff's deputies to unlock the courtroom doors and let people in to hear the verdict in the trial against Tyquan Rivera. Rivera, 15, was accused of shooting Rochester police officer Anthony DiPonzio in the head on January 31st of this year.

On Friday, September 5th, with no direct evidence (ballistics, fingerprints, DNA, or eye-witness), a Monroe County Supreme Court jury convicted Rivera of attempted murder in the second degree and assault in the first degree, based entirely on circumstantial evidence and plenty of innuendo.

Officer DiPonzio, escorted by family members, arrived outside of the courtroom and was greeted by numerous fellow uniformed officers. At 6:40PM, the doors to the courtroom were opened; police made a tighter line with DiPonzio at the front and passed through the threshold into the courtroom. News cameras were aimed at the police procession as they followed DiPonzio. Deputies gave deference to the police holding back the family and friends of Rivera, the media, and others, until they entered.

The September 5th edition of the Democrat & Chronicle's article about the verdict stated that more than 25 uniformed officers "attended in a show of support." That was the line throughout the case, that the heavy police presence in court was a show of support for DiPonzio.

No doubt that was true in many ways. However, aside from support for DiPonzio, there was another effect generated in the courtroom by the police presence: police domination of, and intimidation against, the defendant, his family, and his friends. This was an undeniable reoccurring phenomenon. Uniformed police spectators were present in numbers–sometimes forcing civilians to wait outside of the courtroom–exuding force through the carrying of their guns, the wearing of their badges, and the prejudiced eye with which they watched the proceedings creating an environment that was in no way conducive to a fair trial. The message was clear: If you fuck with police–if you resist in any way–they'll bury you.

This sentiment wasn't too far from the truth. Defense attorney Culver Barr let us know that on the day that Rivera testified, September 3rd, the 15 year-old was made nervous by the police presence in the courtroom–so much so that he almost didn't take the stand. Police intimidation occurred at other points throughout the trial.

Prior to the trial, police were using intimidation and coercion to get information and evidence. Wanda Lise, Rivera's mother, testified that she was held in custody for nearly nine hours as police used coercive tactics to force her to sign a consent form on the evening of the shooting. The pretrial hearing held on July 21st with its continuation on August 3rd was granted by the judge, after reading an affidavit by Lise, to see if there was what's called "standing" for the accusations of police coercion and an improper police search of 65 Dayton Street in violation of Lise's 4th Amendment rights.

"Standing" means, "The status of being qualified to assert or enforce legal rights or duties in a judicial forum because one has a sufficient and protectable interest in the outcome of a justiciable controversy and usu[ally] has suffered or is threatened with actual injury," according to the legal dictionary at FindLaw.com. Questions pertaining to Lise's constitutional rights being violated and a substantial legal controversy to warrant a hearing were determined to exist by the judge.

Barr told us that Lise testified that five or six police officers came to her workplace, sometime around 7PM, and demanded she go with them, hassling her without explaining what had happened. Seeing no alternative, Lise agreed to go with police and was taken to a parking lot. Once there, she sat in the back of a marked car until a second car arrived with lead investigator Thomas Cassidy. While Lise was not handcuffed, she testified to feeling as if she were in custody due to the limitations on her movement and the constant police presence in her immediate space.

Lise was then escorted by uniformed officers from the car she was sitting in to Cassidy's car where police asked her to sign a consent form to search her house. Sometime around 8:40PM police claim that she signed the form. Barr explained that on the consent form were hand written statements by Officer CJ Dominick essentially granting what Barr called a blanket search. This meant that anything in the house as well as anyone could be seized or arrested by police. Lise said she never saw those statements when she was asked to sign the form. Lise found out that police were in her house when a neighbor called her and told her what was going on.

Lise was then whisked away to another parking lot where she sat with officers for two hours. When Lise asked to go home, officers told her she couldn't. When she asked to go to her sister's house, officers refused. When Lise asked about using the bathroom, officers eventually took her to a police station, remaining on guard while she went to the bathroom. After that Lise was taken to the public safety building where she was held until sometime around 4AM. Police held Lise for nearly nine hours without arresting her.

According to Barr, police tried to strong-arm Lise into signing the consent form without telling her why they wanted to search her house or that her son was a suspect. Police knew that if their intention to have the SWAT team bust into Lise's home and tear it apart looking for her son–to kill him if he resisted in any way–then she would never have given consent. Instead of telling her their intentions, police essentially kidnapped Lise from her work place, held her for the better part of a day, and told her very little about why they wanted to search her home–hoping that the ordeal would wear her out and Lise would sign the consent form rather than continue to sit in police custody. In the end, the judge found police conduct acceptable and stated in a long, written decision, given to the lawyers, that the collected evidence was admissible and that the search was proper.

Being detained, as Lise was, or even being arrested is a very jarring and frightening experience. Individuals' relationships with the police are, at heart, adversarial. While there may be cops with hearts of gold, more often than not, the observance of civilians' constitutional rights falls secondary to the maintenance of law and order. To put it another way, the primary function of all police is to (violently, if necessary) enforce the laws of the state. This is commonly done through lying, manipulation, violence, domination, and total control. As such, it is almost never in your best interest to cooperate with the police.

That being said, people who know their rights and assert them can regain some control over the experience of detention and arrest. What people might want to keep in mind when being stopped and questioned by police is fairly straightforward. Basically, a few things to remember are: unless you're driving a motor vehicle, the only thing you're obligated to say to the police is your name and address. (When driving a motor vehicle you're required to show your license.) Beyond that, you have the right to remain silent. If you're asked any other questions, simply say, "I'm going to remain silent. I'd like to speak to a lawyer."

Back in the courtroom, police filled all five rows on the right-hand side with the first two rows full of uniformed police officers. After police were seated, everyone else was allowed in. The deputies, in their less than fair demeanor, joked with an officer about putting his phone on silent after getting a call. The police gallery rumbled with laughter.

The media set up their camera and photo positions in the courtroom panning over the crowd with focused attention on DiPonzio and the seat that Rivera would sit in.

There was a nervous, palpable tension in the courtroom as those seated waited for Rivera, Barr, and the jury with its verdict.

At 6:48PM, Barr walked into court; Rivera entered shortly after Barr from the opposite side of the courtroom, rubbing his hands together in anticipation of the verdict. Judge Valentino reconvened court and said that the jury had sent out a note that read, "We have reached a verdict." The judge explained that there were to be no outbursts of any kind at the reading of the verdict. He said, "To overreact to the outcome would be unfair," due to the time, energy and attention of everyone who participated in the trial.

The jury walked in and sat down. Roll call was performed; all the jurors and the alternate jurors were in attendance. Four deputies sat directly behind Rivera, while two others sat on either side of him and Barr. The judge asked the foreperson to rise and give the verdict. On the count of attempted murder in the second degree, Rivera was found guilty. Halfway through the reading of the charge, the foreperson's voice cracked and quavered as if she was choking on the words. On the count of assault in the first degree, Rivera was found guilty. The near-silent click-click-click-click of the photographer was the only sound that could be heard between the pauses of the words spoken by the judge and the foreperson.

The judge asked if either of the lawyers wanted the jury polled. Essentially, that meant that each juror had to announce how they voted for each count–guilty or not. District Attorney Michael Green declined; Barr accepted. The jurors who started were much quieter–almost timid–whereas the jurors sitting in the back row seemed to be more proud or surer of their decision.

Almost immediately after the verdict was read and the jury polled, the judge announced that Rivera would be remanded to custody without bail; deputies stood and started to pull Rivera out of his seat. As Rivera stood, his arms tightly gripped by deputies, cuffs were cinched around his wrists. As this was done, Rivera turned toward his mother who was sitting a few rows behind him; his eyes looked pleadingly at her as she quietly expressed her love to him before he was turned around, surrounded by the six deputies, and nearly escorted from the court before the judge asked if either attorney had anything else to add to the record. They both declined to add anything.

The deputies then resumed their pace with Rivera out of the courtroom.

Lise stood and left the room with the parasitic, corporate media tailing her–running–to stick cameras and microphones in her face for that one line of reaction or outraged physical response. She did neither as she waited for the elevator doors to close, which were being held open by the media. Questions about the verdict were repeatedly shot at her–questions like, "Any response to the verdict?" "Do you think your son is guilty?" "Could you give us just one response–just one reaction to the decision?" Finally, the doors closed.

Just before the judge asked if either lawyer had anything to add to the record, a sentencing date was set for Friday, October 16, at 10AM.

With neither lawyer desiring to add anything to the record, the judge adjourned court. DiPonzio, surrounded by officers and family, made his way to the elevator. When asked about the verdict, he declined to comment. One batch of cops filled the elevator with DiPonzio, while another batch waited for a second elevator. While waiting, officers smiled at each other, shook hands, and hugged.

Barr was interviewed by the media frenzy after DiPonzio left the 4th floor of the New York State Supreme Court. The defense attorney expressed his disappointment in the verdict, saying that he was encouraged by the length of time the jurors deliberated–nearly nine hours–as well as the requests of the jury to have the law regarding the attempted murder charge read back to them. He thought that the testimony of Robert Hunter, Rivera's cousin, was pretty damning. Barr told the cameras that his client was prepared for the worst and that he had "no real high hopes" of a different outcome. One incredulous journalist asked why, if Rivera had seen another gunman, didn't he report it to police–was there a lack of respect or trust in the police? Barr explained that legally Rivera didn't have to report what he saw; when you live in certain neighborhoods in the city, unlike the suburbs, and are harassed daily by police, a negative impression is formed. The sentiment being that police are not safe and are not your friends. Another reporter asked what kind of effect police support of DiPonzio had on the case. He said it existed. But what kind of effect did police intimidation have on the trial? Obviously some, according to Barr's statement about Rivera feeling fearful about testifying. Finally, Barr assured the cameras, microphones, and "professional" journalists that an appeal would be filed.

More clarity about the events of January 31st

On February 16th and 17th, Rochester Indymedia reported on an email that was read over the airwaves of local, radio station WDKX–allegedly sent by a witness from inside Rivera's home on January 31st. The email claimed that police entered the house where Rivera was present by pushing themselves through the front door without a warrant; that the witness saw Rivera get punched and kicked by police repeatedly and possibly pushed down a flight of stairs by an officer; that police left the house without arresting anyone and that Rivera got a gun and fired into the crowd of officers walking away from the house.

After hearing numerous testimonies from police officers, family members, and Rivera himself, we can safely say that while the above account is almost completely false, there are kernels of truth scattered throughout it.

So what did happen on that snowy, bitterly cold January day? We may never know for sure. There were contradictions in the testimonies of witnesses and therefore, a lot of what was put on the record only painted a part of the picture–the testimonies were not of the highest integrity; Officer Kevin Mack–the first officer on the scene–did in fact rough up Rivera by getting into a verbal argument with, and using physical force on him, according to his grand jury testimony, as well as pushing Rivera into a snow bank and then helping him up only to march the 14 year-old down the middle of Dayton Street to his home by the back of his coat; DiPonzio arrived on the scene as back-up just as Mack was walking back to his car and it was there that a shot rang out and a bullet struck DiPonzio in the back of the head. There were problems with the police story about getting consent to search Lise's house—it had holes in it large enough to drive a Mac truck through; one officer recalled seeing a man leaving the scene who may have fit the description of the masked man Rivera claimed shot DiPonzio; an aunt of Rivera's testified to receiving $300 from Rivera–allegedly the same $300 he was given for hiding the gun. What we absolutely do know is that DiPonzio was critically wounded in the head after being shot, police fingered Rivera as the prime suspect, a gun was eventually recovered from 65 Dayton Street, and a 15 year-old was convicted of attempted murder and assault.

On the afternoon of January 31st, Officer Mack rolled up to Dayton Street with the intention of "clearing the street" because he got a call about suspicious activity. He drove up to five young men standing in the road and immediately told them to put their hands on the hood of his car to be frisked. Rivera claimed he was walking to a store and didn't hear the officer's command. Mack said he called out again to Rivera who slowly made his way to the officer as it was icy and snowy. Rivera was told to put his hands on the car. By this time Mack had his attention solely focused on Rivera and told the other four that they could go. Mack neglected to search them. Rivera asked the officer why he was harassing them. The officer grabbed the 14 year-old and shoved him against the car. Rivera broke away. The officer then grabbed him and started marching him toward an abandoned house. One of the four people Mack had sent away saw this and told the officer to get his hands off of his cousin. The officer continued to push Rivera when he fell into a snow bank. Mack picked him up and moved himself and Rivera behind the house.

In a deposition by one of the witnesses interviewed, an unconfirmed witness came out of their house and told the officer to get his hands off the boy and wanted to know his badge number. Mack didn't recall that happening.

Mack claimed that during this incident, he was trying to deescalate the situation. He testified that in order to deescalate the situation, and preserve his own safety, he needed to remove Rivera from the line-of-sight of his friends. He did this by forcing Rivera to the side of an abandoned house. His actions didn't seem to deescalate anything though. He told the jury that his next step was to take Rivera back to his home and have a conversation with Rivera's mother about his behavior and try to come to a resolution. As Rivera was marched down the middle of Dayton Street by Mack, Rivera called the officer weak and an asshole. The reality of Mack's conduct toward Rivera, according to his own grand jury testimony, was not one of benevolence and nonviolence or a genuine need to resolve the issue.

Barr re-read the grand jury testimony of Mack back to him, "From your grand jury testimony… the reason [you went] to 65 Dayton Street to talk to Tyquan's mother was to tell her how much of an asshole [her son] was." Mack acknowledged that those were his words. He had a sheepish look on his face.

After Mack dropped Rivera at his home, he left the scene and walked back to his car. As he approached, other officers arrived–DiPonzio being one of them. Rivera claimed that he called out to Mack, first from the porch at 65 Dayton Street and second, from the middle of the street, because he wanted his hat back that fell off when he was pushed in the snow bank. Rivera then heard a bang or a crack–like a firecracker–and turned toward his driveway. There, Rivera claimed he saw a man holding a rifle and wearing a ski mask. The man called Rivera over where he told him to take the gun and hide it, and gave him $300. DiPonzio was hit by a bullet and fell face down in the snow. Mack testified that he also heard the firecracker-like sound and that his first reaction was a thought about how stupid it was for the five people he hassled to be using firecrackers to scare him. He then looked at DiPonzio face down in the snow, which prompted police to take action to get him to a hospital and secure the area.

Rivera brought the gun inside his home and then decided to leave the area as a family member drove up and saw him coming back out of his house. He got in the van and left the area.

When Rivera and his family found out that he was a suspect, they attempted to find an attorney. Because it was Sunday, there were no lawyers working. They called George Conaty on Monday and Rivera surrendered to police on Tuesday. He never signed a confession or claimed he committed the crimes.

This is going to be bigger than one article

Rochester Indymedia began covering Rivera's case prior to the trial when print and broadcast media coverage, at best, appeared shallow and slapdash. Local coverage, at worst, began to take on the characteristics of a media spectacle which would reinstate the racist and classist status quo of a conservative, white, upper-middle class, corporate town in Western New York State–nervous after an inner city youth of color stepped out of line and purportedly took a shot at one of "Rochester's finest."

The upcoming series of Rochester Independent Media Center articles and interviews on Rivera's trial will bring our readers information lost in the shuffle as corporate media rushed to throw anything out in broadcast and print in an attempt to feed a commodified, sensational, insatiable, and uncritical media "news hole" of their own making to harvest advertising revenue for themselves.

In the coming weeks and months you will see articles regarding that same media spectacle, a critical analysis of the court proceedings and the testimony of witnesses, how other countries reconcile a case like Rivera's, alternatives to youth incarceration as well as the horrors of youth incarceration, police perjury on the stand and brutality in the community, a look at the prison industrial complex and how inequitable socio-economic conditions feed injustice, an interview with defense attorney Barr, and more.

Throughout the trial, the jury was charged with finding "The Truth" of the matter beyond a reasonable doubt. With no ballistic evidence, no finger prints, no DNA, a gun that couldn't be testified to as the weapon that shot DiPonzio, and no eye-witness testifying to seeing the shooting, coupled with a whopping ton of innuendo and circumstantial evidence presented by Green to the jury, is it any wonder that doubt exists? We think not.