U.S. District Court Judge Joan Azrack got things off to a start Wednesday by instructing jurors to ignore a portion of testimony from retired Suffolk Det. Kenneth Bombace. On Tuesday, Bombace had tied Thomas Spota, Suffolk's former district attorney, and Christopher McPartland, former head of Spota's anti-corruption division, to a plan to cover up the beating of Christopher Loeb.
Assistant U.S. Attorney Justina Geraci had asked Bombace if he knew who had made the decision that his colleague former Suffolk detective Anthony Leto would testify at a 2013 hearing on the Loeb case, instead of another former intelligence unit colleague, Michael Malone. Malone and Leto both were present when Loeb was assaulted by Bombace, James Burke, the former police chief of department, and other detectives.
“My understanding would be that it was Chris McPartland or Tom Spota," Bombace answered.
Azrack, reading from a document, called that answer unresponsive, and told jurors to ignore it.
Last week, John Gallagher, a former Suffolk police commissioner, made passing reference to the "the Kelley-O'Brien" feud, which dates back to the 1970s when then-police Commissioner Eugene R. Kelley waged war against then-District Attorney Henry F. O'Brien.
To say things got ugly would be a gross misstatement.
In 1975, Newsday published the results of an investigation, which ran five full pages in the newspaper, delving into claims and counterclaims lobbed by both sides. The allegations included everything from sexual misconduct, as alleged about O'Brien, to official misconduct, as O'Brien alleged against Kelley.
The headline: "The Kelley-O'Brien Feud: Heavy Charges, but Slim Evidence."
The feud, as Gallagher testified, did, however, spawn one agreement — that the county district attorney, rather than the police commissioner, would decide which member of the police department would head the DA's investigative squad.
That's how Spota, decades down the line, came to put his pick, Burke, into the squad's top job.
And when Burke years later became police chief, he promoted some of his former DA team members from Hauppauge and brought them to headquarters in Yaphank.
Bombace, in testimony Wednesday, said that having so many former DA's investigative squad members lessened rivalries.
"With Chief Burke, that no longer existed," he said. "It was a seamless existence between the district attorney and the police commissioner."
Chain of command
Bombace later was asked whether he felt there was an informal chain of command at the police department.
Yes, Bombace replied.
"James Burke reported to Tom Spota, the district attorney," Bombace testified, "and the commissioner, he did not report to."
He called then-Commissioner Edward Webber a "figurehead … "
To have or have not
"There was kind of the haves and have nots," Bombace testified, when Geraci asked about the working environment in the police intelligence unit.
"There were working people, people on the street, and then there were the people he kept in the office," he said, referring to former police Lt. James Hickey, then the unit's head.
"Were you one of the haves or have nots?" Geraci asked.
"I was a have," Bombace replied.
Geraci asked Bombace about an investigation into a former Suffolk detective, John Oliva, for leaking information to Newsday.
"It was not something we'd seen before, the way he was arrested … it seemed a harsh penalty for leaking information to the media."
Oliva's treatment had a chilling effect on police personnel, who, Bombace said, feared the possibility of similar targeting if they crossed Burke.
They even had a name for it: to be "Oliva'd."
"Did you ever use that phrase?" Geraci asked.
"I did," Bombace replied.
Oliva was in the overflow courtroom down the hall during the testimony.
"I heard that phrase today, for the first time," Oliva said in an interview.
"But I knew that everyone in the department was afraid back then that if they crossed Burke, they would end up like me," he said.
On the lookout
Bombace said he agreed to serve as a lookout for a consultant to the district attorney's office, Sanjiv Patcha, when Patcha removed a GPS tracking device from a vehicle issued to Risco Mention-Lewis, a deputy police commissioner.
"The chief spoke negatively about her," Bombace testified. “ … She had a program that she was instituting in the police department that he did not like."
On the day the GPS was removed, Bombace said, "I stood guard, close to the entrance of the building, and he [Patcha] knelt down quick and pulled it from the vehicle."
They were in a parking lot outside police headquarters in Yaphank at the time.
A matter of trust I
Bombace had several conversations with Hickey after the assault on Loeb, from the time Bombace considered a transfer back to the sheriff's office right up to when Bombace decided to retire.
"Did you trust him?" Geraci asked.
"I wanted to," Bombace replied, "but I couldn't."
A matter of trust II
Bombace, did, however trust Steve Bellone, Suffolk's county executive, whom he had guarded when Bellone ran a New York City Marathon and considered a friend.
"He told me that he was worried about me," Bombace testified, saying he talked to Bellone days before testifying before a federal grand jury.
"And," Bombace said, "that he wanted to make sure that I knew that the only reason I could get into trouble was by lying."
On my mind
Larry Krantz, McPartland's lead defense attorney, hammered Bombace during cross examination.
At one point, Krantz pressed Bombace about slapping Loeb in a Fourth Precinct interview room.
"Nobody told you to slap him," Krantz said.
"It was pressure to get results from him … ," Bombace replied.
"It was a decision in your own mind to slap him," Krantz fired back.
"It was pressure you were feeling in your own mind," Krantz said.
"Correct," Bombace conceded.
Burke and McPartland had a special way of greeting each other when one called the other, said Spiros Moustakas, a New York City attorney who once worked in the Suffolk DA's office who took the stand Wednesday afternoon.
"They would greet each other with an expletive," he said.
What was it, Assistant U.S. Attorney Michael Maffei asked.
"It was … [initials for words that can't be printed in a family publication]," he answered.
"Would they say … [the initials] or the whole thing?," Maffei pressed.
"The whole thing," Moustakas replied, as the courtroom broke into laughter.
At one point, an exhibit — a photograph of a smiling Burke standing beside a smiling McPartland — was shown on the courtroom's big screen.
"They look happy," Moustakas said, in reply to a question.
"Objection," Krantz said.
Azrack sustained the objection, saying, "I think the photo speaks for itself."
There, and here
Moustakas testified that he at one point was called in to handle Loeb's arraignment, which he thought unusual because he usually handled more serious cases.
Moustakas said he asked McPartland at one meeting whether the case would be transferred to a district attorney unit, which usually handled such cases.
"He said, ‘No, we're going to keep it here,’ ” Moustakas testified.
At the time, McPartland was head of the office's anti-corruption office.
At one point, a new wiretap monitoring room was set up near McPartland's office, Moustakas testified.
He said that, over time, he saw both McPartland and Spota in the room.
"How often did you see McPartland?" Maffei asked.
"Every day — I don't believe he took a vacation — every day," Moustakas replied.
They were listening, or getting updates on a three-month wiretap of Oliva's telephone, which included conversations with then-Newsday reporter Tania Lopez.
Earlier, Moustakas said, Spota had asked about the possibility of subpoenaing the reporter's phone.
But that idea got shot down by two attorneys from the DA's appeals unit.
"Based on case law," Moustakas said they said, "you can't subpoena a journalist's phone records to see their sources."
Spelling can be a challenge for reporters — whether they work for the court, or for a news publication.
At one point, a court reporter asked Moustakas to spell the last names of detective investigators Paul Caroleo and Thomas Iacopelli, who were among those monitoring the Oliva wiretap.
He did so — correctly — and then said, "Wow it's like a spelling quiz, interesting."
Several minutes later, he said, "I hope I don't have to spell Rickenbacker."
Earlier, Moustakas testified that Spota, McPartland and Emily Constant, Spota's second in command, were not happy to hear via the Oliva wiretap that the Newsday reporter planned to visit Lowrita Rickenbacker, a felon who had a relationship with Burke.