The lawyer for a former top Nassau police commander accused of corruption has made a second motion to dismiss the case, saying prosecutors used hearsay, speculation and sarcasm to get the indictment.
Bruce Barket, who represents retired Second Deputy Commissioner William Flanagan on charges that he and two other police officials helped quash the arrest of a police benefactor's son, said prosecutors "literally manufactured the crime" against his client.
"They ignored basic rules of evidence, bullied and berated witnesses who offered testimony they did not like and unprofessionally injected their opinions into the process by making sarcastic remarks," Barket said.
The judge in the case, Acting Suffolk Supreme Court Justice Mark Cohen, has already reviewed the grand jury minutes in the case and found that prosecutors acted properly in their presentation.
Cohen also rejected a previous motion by all three defendants asking that the case be thrown out because, they said, emails they discovered after they were arrested undermined the prosecution's case.
According to the indictment, Flanagan, retired Deputy Chief of Patrol John Hunter and retired Seventh Precinct Squad Deputy Cmdr. Alan Sharpe conspired to stop the arrest of Zachary Parker, who stole about $11,000 worth of electronic equipment from John F. Kennedy High School in Bellmore in May 2009. Rice ultimately charged Parker, who later pleaded guilty.
The three commanders' cases have been severed, and Flanagan's is set to go to trial first, probably in January, lawyers said.
The 33-page motion says that one police inspector who testified before the grand jury at first said she thought the reason police hadn't pursued charges against Parker was that school officials were ambivalent about the matter. But Barket said prosecutors didn't buy that explanation and continued to press the inspector about relationships that "higher ups" in the police department might have to the case.
When a prosecutor asked the inspector why top brass were watching the case, the inspector answered, "I would be speculating," according to the motion.
"Well then, just speculate," the prosecutor said, according to Barket's motion. Grand jury witnesses are not allowed to speculate.
The official then speculated that they were "trying to take care of their friends," the motion said.