Judge mentions James Burke 45 times in jury instructions

The wait begins

"OK, you may deliberate," U.S. District Court Judge Joan Azrack told jurors Monday in the trial of Thomas Spota, Suffolk's former district attorney, and Christopher McPartland, former head of Spota's anti-corruption unit.

It was 11:34 a.m., after she'd read the panel 41 pages of instructions — more like 40, actually, since the last page contained a single sentence — and after she'd consulted with prosecutors and attorneys in the panel's presence, perhaps for one last time.

Attendance in the courtroom was sparse.

Supporters for Spota, including family members, sat on the benches behind the defense table.

On the prosecution side, in contrast to other days during the trial, a single prosecution-witness-turned-observer sat — and he left after the jury filed out to begin deliberating.

About an hour later the panel received a giant stack of materials entered by prosecutors and defense attorneys at trial.

By then, the courtroom was almost empty.

And so it was that the wait began.

James Burke, Part I

Jurors heard mention of James Burke, former Suffolk police chief of department, about 45 times during Azrack's instructions.

They heard mention of Christopher Loeb, the man Burke assaulted, about 13 times.

Much of that came as Azrack detailed the elements of "Accessory After the Fact to the Deprivation of Christopher Loeb's Civil Rights," which is the fourth of four counts charged against both Spota and McPartland.

(The others are conspiracy to tamper with witnesses and obstruct an official proceeding, witness tampering and obstruction of an official proceeding, and obstruction of justice.)

Burke did plead guilty to charges stemming from Loeb's assault.

And that fact was brought up numerous times during the trial.

In considering the accessory after the fact charge against Spota and McPartland, however, the judge instructed jurors that prosecutors had to establish that Burke had committed a crime.

James Burke, Part II

With that, the judge's instructions, in a way, offered a closer look into Burke's actions.

Burke, in assaulting Loeb on Dec. 14, 2012, would have had to be acting "under color of law," that is, that Burke "acted … or was clothed with" authority.

"An individual who acts under color of law may be a state officer …,” Azrack read.

Burke had to have "deprived the victim of a federal right," Azrack read.

"I instruct you that The Fourth Amendment to the U.S. Constitution protects persons from being subjected to excessive force while being arrested …,” she read.

"In other words, a law enforcement official may only employ the amount of force reasonably necessary under the circumstances to make the arrest," she told jurors.

In addition to the first two elements, she read, Burke had to have "acted willfully."

“ … ‘Willfully’ means that Burke acted voluntarily and intentionally, with the intent to deprive a person of a federal right made definite by court decisions and other rule of law …,” Azrack read.

In testimony during the trial, Anthony Leto, a former Suffolk detective, described Burke's assault on Loeb.

Credible or no

"You have had the opportunity to observe the witnesses," Azrack read. “ … You must decide what testimony to believe and what not to believe."

Over six weeks, jurors heard from 30 witnesses.

Some of them were cooperating witnesses, that is, they have pleaded guilty to charges stemming from the investigation into Loeb's assault and are seeking leniency in return for cooperating with prosectors.

Others testified under a grant of immunity, that is, under an order from the judge that bars their testimony from being used against them in a criminal case (except perjury, giving a false statement or otherwise failing to comply with the immunity order).

The government's key witness, former Suffolk Det. Lt. James Hickey, was criticized early and often by defense attorneys questioning whether alcohol abuse and a hospital stay for an "impaired mental state" impacted his credibility.

So it was no surprise to see this, among the lengthy section of instructions regarding witness credibility to jurors:

“ … Consider what effect, if any, a witness's alcohol use or abuse may have had on that witness' ability to perceive, remember, or relate the events in question," Azrack read.

In testimony, Emily Constant, Spota's former second in command, told prosecutors that she did not want to see either her former boss or McPartland found guilty.

Which may (or may not) be why the instructions on witness credibility also included this:

"Does the witness have a relationship with the government or one or more of the defendants which may affect how he or she testified?" Azrack read.

Constant was neither a cooperating nor immunized witness.

She testified under subpoena.

Care and caution

"The testimony of cooperating and immunized witnesses should be examined by you with great care and caution," Azrack read.

Those witnesses include Hickey, as well as other former Suffolk detectives including Leto, who also admitted assaulting Loeb.

"You should ask yourselves whether the witness would benefit more by lying or by telling to truth," Azrack read. "If you believe the witness was motivated by hopes of personal gain, was the motivation one that would cause the witness to lie, or was it one that would cause the witness to tell the truth …?”

Deliberation

After a quiet morning, the panel fired off three notes.

The first, at 3:13 p.m., said: "Please provide Hickey testimony, Day 2 and Day 3."

Defense attorneys for Spota and McPartland began questioning Hickey during his second day on the stand.

The jury's request also would cover redirect from both prosecutors and defense attorneys.

At 4:23 p.m. — as transcripts of the requested Hickey testimony was being prepared — there came a second note:

"Can we get Spiros Moustakas' testimony?"

Moustakas, a former Suffolk assistant district attorney, initially was assigned to handle Loeb's prosecution on charges stemming from robbing vehicles belonging to Burke and others.

The last note of the day — as prosecutors and defense attorneys began working on the Moustakas testimony — came at 4:34 p.m.:

"We'd like to look at Spota press conference re: Newsday."

The video, a defense exhibit, showed a portion of a 2014 Spota news conference, during which he slammed Newsday (though not by name) for publishing a story that he said put police in danger. 

Jurors were brought back into the courtroom to see the video — and then they returned to the jury room for the last few minutes before a 5 p.m. dismissal.

As they rose to leave, Azrack promised that the Hickey and Moustakas testimony transcripts would be ready for them on Tuesday morning, when deliberation is set to resume.

By Joye Brown

joye.brown@newsday.com

Joye Brown has been a columnist for Newsday since 2006. She joined the newspaper in 1983 and has worked as a reporter, an editor, newsroom administrator and editorial writer.