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Judge unseals secret testimony in Schmitt case

Nassau County presiding officer, Peter Schmitt, arrives at

Nassau County presiding officer, Peter Schmitt, arrives at federal court in Central Islip Thursday morning. Schmitt is court for a hearing in contempt charges against him. (May 31, 2012) Photo Credit: James Carbone

A federal judge has unsealed previously secret testimony by Nassau Legis. Peter J. Schmitt of last week's hearing into whether he violated a gag order by appearing on TV to discuss facts about police misconduct.

Schmitt (R-Massapequa), Nassau County's presiding legislative officer, faces contempt of court charges for allegedly disclosing details of the internal-affairs investigation into the death of Jo'Anna Bird, a domestic-violence victim who was slain in March 2009 by her obsessive estranged ex-boyfriend.

According to the unsealed testimony, the second half of which had already been made public, Schmitt's defense was that he had read in Newsday much of what he said in the TV interview.

"The whole situation was in the press constantly," he testified while being questioned May 31 by his attorney, Paul Millus of Manhattan.

"It might have been better if I had not said what I said, but I said it," Schmitt testified.

A decision by federal Judge Arthur Spatt of U.S. District Court in Central Islip on whether to hold Schmitt in contempt -- and impose a fine, jail time, or both -- is expected any day.

Schmitt's defense is that any disclosures were nominal and unintentional. In the testimony, Schmitt said he was "deeply disappointed" in the police.

"Do you continue to believe this was a failure from top to bottom?" Millus asked him.

"Top to bottom, absolute failure," Schmitt replied.

The press and the public had been ejected from the courtroom for part of the testimony from Schmitt and the onetime head of Internal Affairs. But earlier this week, the judge agreed to release the part of Schmitt's testimony from which the public was excluded, after the attorney for Newsday and News 12 Long Island, Jacob Goldstein of Levine Sullivan Koch & Schulz, argued that the First Amendment warranted its release.

Despite the challenge by the news organizations, the judge refused to release the testimony by now-Assistant Chief Neil Delargy, who at the time of the secret report was the head of Internal Affairs.

At issue is a still-secret 700-page Internal Affairs report about how police failed to protect Bird from her ex-boyfriend, Leonardo Valdez-Cruz, who stabbed her to death in March 2009.

Among the police failures: Bird had orders of protection against Valdez-Cruz, but officers ignored her pleas for help; repeatedly refused to arrest him, and gave Valdez-Cruz, a police informant, a cellphone, which he used while in jail to harass her in dozens of calls.

Valdez-Cruz has since been convicted of murder and is serving a life prison sentence.

The secret report was evidence turned over to attorneys for Bird's mother, who had sued the county in the federal court for wrongful death. The county has since paid a $7.7 million settlement and conceded that what happened reflected "a breakdown in the system concerning domestic violence."In an interview that aired Feb. 7, Schmitt told News 12 Long Island: "There are 22 police officers in this county who were mentioned in that confidential internal affairs report who ought to be ashamed to look at themselves in the mirror every morning when they get up to shave, much less be wearing the badge." he said. "Orders of protection were ignored. . . . Mandatory arrests were called for and not performed, giving a cellphone to the prisoner when he was behind bars and allowing him to call the victim 35, 40 times, and on and on and on."

Schmitt conceded that not everything he told News 12 came had been published in Newsday, including a detail that officers gave the ex-boyfriend, an informant, a cell phone to be used from jail -- which was used to repeatedly harass Bird from behind bars.

Schmitt, who as a legislator had to approve the $7.7 million settlement, was given a presentation on the secret report under a gag order. He voted to authorize the settlement, then gave the TV interview for which Spatt is now considering contempt.

The police department says a 36-year-old state law, section 50-a of the Civil Rights Law, prevents the release of the entire report. The executive director of the State Committee on Open Government, however, has said that at least parts of the report could be made public under 50-a, even with the officers' names redacted.

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