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The Cooperstein case: Prosecution, defense team battle over officer's fate
Monday, March 20, 2000 By Bruce Keidan, Post-Gazette Staff Writer
There are more than 30 names on the Commonwealth's list of potential witnesses. Prosecutor Edward Borkowski has spent a lot of time deciding in what order he will present them and what he will ask. He wants to walk the jury step by step down a path of evidence that leads to the same conclusion he himself has reached.
His first witness is one he would skip if he could. Sgt. Andrew Lisiecki, a former paramedic and a 12-year veteran of the Pittsburgh Police, is a cop's cop. He has taught at the Police Academy. He is a certified instructor in ethics, field training, firearms and the use of force. He was the patrol sergeant on duty in Zone 2, the Hill District police station, the morning Deron Grimmitt was shot, and it was Lisiecki who initiated the chase.
Lisiecki believes Officer Jeffrey Cooperstein's actions that morning were justified. His career has taken a sharp downward turn since he first voiced that opinion. He has been reprimanded, denied a position he wanted, transferred instead to another job. The jury will see him again -- as an expert witness for the defense.
But Lisiecki is Borkowski's cornerstone witness. Because if Lisiecki had not been parked near the intersection of Forbes and Jumonville in the city's Uptown section watching a pair of Zone 6 patrolmen interrogate a possible perp that morning when the Grimmitt brothers happened along, near the border of Zone 6 and Zone 2, there might well have been no chase, no shooting, no trial.
Lisiecki testifies he saw the Grimmitts' 1993 Chrysler New Yorker approach on Forbes Avenue and slow down. They appeared not to notice his cruiser parked about 15 feet from them, Lisiecki says. They were focused instead on the Zone 6 cops.
Seeing Curtis Grimmitt reach under his seat, Lisiecki says, he used his police radio to warn the Zone 6 officers of possible danger. At that point, he testifies, Deron Grimmitt noticed him and kicked the gas pedal. Hard. And since they were acting like criminals, he behaved like a cop. He pursued.
A peace officer . . . need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of force which he believes to be necessary to effect the arrest and of any force which he believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or such other person or when he believes that:
1) such force is necessary to prevent the arrest being defeated by resistance or escape and
2) the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.
He says Deron Grimmitt drove through one red light to take a right turn onto Brady Street, another while turning left onto Second Avenue. Left being eastbound, away from Downtown.
The Grimmitts braked to a stop near the Pittsburgh Technical Center. At that point, Lisiecki says, he activated his siren and emergency lights and pulled up behind them. He saw the brothers look back at him, saw Deron reach behind his back as though for a gun. As he reached for his own weapon, he heard the squeal of tires protesting as Deron Grimmitt stomped the accelerator again.
He recounts how, as he resumed the chase, he watched the driver in front of him do a U-turn and head toward Downtown. "I was doing 75 miles an hour," he testifies, "and the Grimmitt vehicle was pulling away from me like I was standing still."
He recalls running a check on the Chrysler's license plates and being told by a dispatcher the license number was "dead," meaning the plates might well be stolen.
He tells of losing sight of the Chrysler as it negotiated an S curve while still doing in excess of 70 miles an hour and of deciding to back off the chase for his own safety and to lessen the risk that a bystander might be hurt or killed. As he emerged from the S curve, he says, he saw a police cruiser atop the 10th Street Bridge. That cruiser, driven by Officer Richard Diamond, would became the primary pursuit vehicle, with Lisiecki following in a back-up role.
Lisiecki tells of passing a police car marked COP-8 parked "just above Try Street" seconds before he heard Diamond inform dispatch the Chrysler had crashed at Second and Ross.
When he arrived at the crash site, Lisiecki explains, he was the ranking officer there and took charge of the investigation until his lieutenant arrived.
"As I was illuminating Deron's head [with a flashlight], an officer came up to me and said, 'Sarge, I think that's mine,' " Lisiecki testifies.
He recognized the officer, he tells Borkowski. It was the one he'd seen parked just up the street in COP-8. It was Cooperstein.
"What did you say to him?" Borkowski asks.
"I said, 'You're [kidding] me!' " the sergeant recalls. He is waiting for someone -- either Borkowski now or defense attorney James Ecker on cross-examination -- to ask him why he said that. He is hoping that someone will ask. But no one does.
In his closing argument, Borkowski will recall Lisiecki's astonishment and bend it to his own ends. Lisiecki was stupefied, Borkowski will say, because you don't shoot people for speeding.
But if he had been asked under oath why he was dumbfounded by Cooperstein's revelation, Lisiecki would have said he was shocked because Cooperstein was the last police officer he would have expected to shoot anyone.
Two weeks before this shooting, Lisiecki, exercising his right as a supervisor, had accompanied Cooperstein on patrol. Then, as on the night of the shooting, Cooperstein had been working a detail known as Weed and Seed in the Hill District. A federally funded drug-interdiction program, Weed and Seed is known in the trade as "community-oriented police work." Officers assigned to it are not required to back up policemen involved in other activities unless he knew their lives were in danger or a dispatcher told him to go. "Required" being the operative word in Lisiecki's view.
"I wanted him to be more active in police work," Lisiecki would say in a post-trial interview. "He was telling me he had no confidence in our command to stand up for him if there was a problem. He felt the people at headquarters were being hypercritical of officers, that they were out to get officers.
"I thought at the time he was wrong. I told him if he spent as much time doing police work as he did worrying about command, he'd be a great police officer. But in hindsight, he was right."
Cooperstein thought Lisiecki was naive when it came to departmental politics, but he liked and admired his sergeant. Before they parted, he made Lisiecki a promise he would live to regret.
"If it's you, Sarge," he said, "I'll be there. You can count on that."
Voice of calm?
Not for the first or last time in this trial, Borkowski is angry. He believes Lisiecki has ambushed him.
The prosecution has entered in evidence an audio tape of the conversation on Police Channel 1 during the chase. The tape will be played for the jury. Lisiecki has reviewed it already, at Borkowski's behest. Shortly after the chase begins, a policeman's voice can be heard suggesting that other officers -- Zone 6 officers -- go help out. Until this morning, Borkowski did not know whose voice it was.
"How many times have you reviewed this?" Borkowski growls at the witness, waving a transcript of the police-dispatch tape.
About five times, Lisiecki says.
"Is there a reason you never told me that was Officer Cooperstein's voice?" Borkowski demands, his voice quavering with anger.
"I was never asked, sir," Lisiecki says.
But the prosecution did ask him the week before the trial started to correct errors in the transcript. And Lisiecki complied. He spent an afternoon in Borkowski's office, comparing the transcript to the actual tape.
He made dozens of changes. When he came to the suggestion to send Zone 6 cops as backup, the attribution was listed as UNKNOWN. He crossed that out and wrote in OFFICER COOPERSTEIN.
Borkowski's secretary left around 4 that afternoon. Lisiecki finished at 4:30, made a copy of the amended transcript and put the original on the secretary's desk before leaving. Borkowski either did not see the amended transcript before going to trial or did not notice the change.
Now the jury is left to wonder: If Cooperstein is a cauldron of rage about to boil over, as the prosecution suggests, why does he sound so calm, so matter-of-fact? If he's a bully in search of an excuse to shoot someone, why doesn't he jump at this opportunity? Why does he suggest sending someone else?
A cop's point of view
Methodically, like a mason laying brick upon brick, Borkowski builds his case -- witness by witness, fact by fact. One police officer after another marches to the witness stand, the procession interrupted just long enough for the prosecutor to summon a paramedic who got to the crash scene even before the cops arrived.
What did they see? What did they hear? What did they find?
Borkowski has problems. Maybe the biggest one is, most of his witnesses think the case is bogus. Being cops, they see things from a cop's point of view. On cross-examination, they are easily led where the defense is eager to take them. His own interactions with them are becoming increasingly hostile.
He has bullet fragments and pieces of glass, but what do they mean? Much of the forensic evidence is effectively useless because no one is sure exactly where Cooperstein's cruiser was parked when he stood beside it and fired four shots at Deron Grimmitt. Borkowski has assumed ever since Lisiecki testified, at the coroner's inquest, that "just above" Try Street meant "just east." Lisiecki says he's mistaken. To him, "just above," means "just west."
Worse than confusing, the forensic evidence is dull and complex. The jurors are not allowed to take notes. And Borkowski is living up to his reputation for being a prosecutor who never met a question he didn't like. The jury is inundated with facts and unsure of their meaning or relevance. The prosecution's case at this point consists of too little mortar and too many bricks.
Conspicuous by its absence from the prosecution's list of potential witnesses is an expert willing to testify that Cooperstein's use of deadly force was uncalled for. That is highly unusual in a prosecution like this. Borkowski is pinning his hopes on the forensic evidence and the testimony of the only person on earth who can say with certainty what was happening inside Deron Grimmitt's Chrysler New Yorker on the morning Deron died.
The brother's story
At 10:08 a.m. Wednesday, Jan. 26, Curtis Grimmitt swears to tell the truth or face the consequences on the One Great Day of Judgment. Borkowski walks him through the events of the morning of Dec. 21, 1998.
Deron picked him up at the home of their brother John in the 2000 block of Forbes shortly after 3 a.m., Curtis says, and the two of them went out intending to rent a room at the Red Roof Inn in Monroeville. As they drove east on Forbes, Deron glanced at his rear-view mirror and announced they were being followed by the police. When the cop directly behind them eventually turned on his cruiser's flashing lights, Deron pulled over.
"They'll find the parole violation," Curtis quotes his brother as saying.
Dreading the thought of spending Christmas in jail, Deron decided to bolt, Curtis testifies. Deron reached under his Cleveland Indians jacket -- not for a weapon, as Lisiecki thought, but for a cell phone. As they resumed their flight, Deron called their mother, described their plight and told her to be prepared to come to the jail to bail them out if they were captured.
The brothers intended to abandon the Chrysler, which Deron had bought less than two weeks before, near the entrance to the Armstrong Tunnel. They planned to run up the stairs that lead to the Duquesne University campus and vanish into the night. They abandoned that plan, Curtis says, when they saw another police cruiser parked on the 10th Street Bridge. He knows now, Curtis says, that the car belonged to Officer Richard Diamond.
Once again, Deron gunned the engine. As they rounded the curve and neared the Allegheny County Jail, Curtis testifies, they saw yet another police car, this one about 30 to 40 yards in front of them, parked in the eastbound passing lane of Second Avenue with its emergency lights on.
"I saw the police officer standing beside his car with his hands out like this," Curtis Grimmitt says, extending his arms in the shooting posture used by law-enforcement officers and pistol marksmen the world over.
He tells of hearing the first shot and describes how the brothers reacted, Deron instinctively raising his left arm to protect his head, Curtis diving for the floor. He says he heard three more shots in rapid succession. He describes how he reached for the steering wheel in a futile effort to keep the car from hitting the abutment at Second Avenue and Ross Street. There are tears in his eyes as he recalls shaking his brother to try to revive him after the crash.
In a take-no-prisoners cross-examination, Reich sets out to destroy the credibility of the prosecution's star witness. If he's a thief and an addict, he may well be a liar, and the jury is entitled to know. Over Borkowski's objections, Reich forces Curtis Grimmitt to recite his history of drug use and property crimes.
It's a standard defense stratagem, but it is not without its risks. If the jurors decide Curtis is telling the truth, they may ask themselves why Reich is trying so hard to persuade them otherwise.
And unless he is the world's most accomplished liar, Curtis Grimmitt is telling the truth. He does not pause, searching for hidden traps in Reich's questions. He does not try to gloss over unflattering facts.
Reich calls Curtis Grimmitt's account of Deron's telephone call to their mother "preposterous." But it isn't. Curtis gave the same account to detectives in Mercy Hospital hours after the shooting, while being treated for head and facial injuries and torn leg ligaments.
Why does that phone call matter? Why does Reich want the jury to doubt it took place as Curtis Grimmitt describes it? Because a man who is making arrangements for bail is a man who has come to terms with the possibility he is going to be caught and arrested. And because a man who is planning to make bail by morning isn't planning to kill anyone.
Ask yourself how likely it is that Curtis Grimmitt, injured and grieving over the loss of a brother, had worked out the implications of that seemingly trivial phone call within hours after Deron was shot.
Curtis continues to maintain in the face of scathing examination by Reich that the Chrysler was hugging the curb on the westbound side of Second Avenue as it approached Cooperstein -- not in the middle of the road. Reich is not particularly troubled by that testimony, however, since another eyewitness, Richard Diamond, is waiting to testify that Curtis' recollection is incorrect.
Reich does score one major victory before Curtis Grimmitt leaves the stand. The defense contends that the fatal shot was the last one fired. Curtis told sheriff's detectives in the hospital and said again at the coroner's inquest that the second of Cooperstein's four shots was the fatal one. But he since has reconsidered. On reflection, he says, the shots came in such rapid succession that he cannot be sure which one found its mark. It wasn't the first, he says. But it may have been the second, the third or the fourth.
A grieving mother
Bettye Grimmitt follows Curtis. Her appearance is mercifully brief. She verifies that she receives a phone call from Deron moments before his death in which he told her to come post bail for him and Curtis if they were caught.
"I told him to be careful and come home," she says.
Rather than risk offending the jurors, the defense declines to prolong the grieving mother's ordeal by questioning her. Later, out of earshot of the jury, a journalist asks her if she ever wondered what would have happened if she had told Deron to stop the car, turn off the engine and comply politely with whatever officers told him to do.
Her daughter Cynthia intervenes before Bettye can answer. "We can never know," she says. "We were all brought up to obey our mother, but we'll never know."
The Derrico memo
In the midst of the prosecution's case, the defense has filed a motion to dismiss the charges. In its written brief to the court, it cites a 1994 memo authored by a narcotics detective named Thomas Derrico in which Derrico portrayed the Grimmitt family as drug dealers and said they were threatening to shoot the next cop who had the temerity to interfere with them.
It has only this week received a copy of Derrico's memo, the defense complains. It asked the prosecution months ago to turn over the document and was told it could not be found. By withholding this crucial piece of evidence, the defense contends, the Commonwealth has deprived Cooperstein of his right to a fair and impartial hearing.
Presiding Allegheny Common Pleas Court Judge David Cercone schedules a hearing on the motion to dismiss for Friday, Jan. 28, giving the jury a much-deserved day off. Linda Barrone, who commanded the zone that Cooperstein worked in at the time of the shooting, and Lisiecki are summoned to testify.
Barrone says she happened across the Derrico memo while cleaning out her desk in late December 1998, and spent several hours trying to in vain find it again after the defense requested it the following spring. She says she informed her supervisors the memo was lost, but does not think she discussed the matter directly with Pittsburgh Police Chief Robert McNeilly.
The memo surfaced again just the other day, Barrone says, behind a file on one of Derrico's former partners. And she informed Borkowski at once.
Lisiecki recalls complaining to Barrone on Dec. 30, 1998, that the news media were portraying the Grimmitts as innocent victims and that the police, who knew better, were doing nothing to contradict that perception. She reassured him that was about to change, he says. In so doing, she read him what he believed to be a letter from an informant alleging that Curtis and Deron Grimmitt were the drug kingpins of the Hill District's Reid-Roberts housing project and had boasted they would not hesitate to kill any cop who trifled with them.
Barrone told him the letter would be released soon, Lisiecki testifies, but that everything related to the Cooperstein case had to come through Chief McNeilly's office. She put the letter back in a file on her desk, he recalls, and promised to forward it to the chief.
The unstated implication: Lisiecki suspects a conspiracy to suppress evidence favorable to Cooperstein.
This is all very interesting, Cercone agrees, but he's not dismissing the charges. Cooperstein's lawyers have known of the memo's existence for more than a year. They asked to see it, but did not file a motion to compel the Commonwealth to produce it. Furthermore, Derrico hasn't been seen or heard from since he resigned from the police department under duress six days before Deron Grimmitt's death, and no one seems to know where he is. Since he is unavailable to testify, his memo is hearsay and inadmissible.
If Jeffrey Cooperstein is going to walk out of this court a free man, it won't be because the defense snookered the judge with the old hidden-memo trick.
Mountains of detail
A homicide prosecution is like any other drama in that it must gather momentum as it goes along. If the dramatic climax occurs in the first act, the audience is going to be bored in the second and long gone when the curtain comes down on the third.
Jurors, being a captive audience, cannot walk out. But their attention can wander. And if the prosecution seems to be going nowhere, they may punish the prosecutor for wasting their time.
Once Curtis Grimmitt steps down from the witness stand, the Commonwealth's case seems to die a lingering death. Most of it is scientific in nature and excruciatingly technical. There are a few gems of significance in the forensic testimony, but they are buried in a mountain of minutiae.
Detective Gary Tallent, an accident-reconstruction specialist for the county police department, notes that 2 minutes 20 seconds elapsed from the time the Grimmitts made their U turn on Second Avenue until they crashed, 2.8 miles away. So they were traveling at an average speed of 72 miles an hour. That translates to roughly 105 feet every second, which gives us an idea how much time Cooperstein had to decide what to do. But does all of that help or hurt the prosecution's case? Assuming he recognized the Chrysler New Yorker at a distance of 100 yards, Cooperstein had less than 3 seconds to make a decision and act on it.
After 50 minutes of testimony in which the jury learns far more about the inner workings of the Glock 9-mm pistol than it needs or wants to know, Dr. Robert Levine, the county's chief criminalist, says he is certain the bullet that killed Deron Grimmitt struck the driver's side window straight on, rather than at an oblique angle. Presuming he's right, a frame-by-frame viewing of a videotape of the shooting would reveal that the danger to Cooperstein had ceased to exist by the time he fired his final shot. Rightly or wrongly, that assertion could influence the jury -- if it is hanging on Levine's every word. But the jurors' attention span has been sorely tested by the interminable dialogue between Levine and Borkowski. One juror appears to be sound asleep.
In a cross-examination as effective as it is brief, Charles LoPresti, Cooperstein's co-counsel, gets Levine to acknowledge he cannot plot the fatal bullet's trajectory. Because the bullet holes in a Size XL baseball jacket don't tell you much when the man wearing it stood 5 feet 6 and weighed 141 pounds.
A gamble
Then comes the attempt to reconstruct Cooperstein's frame of mind through the writings posted on the Blue Knight Web site, in which he had a key role.
The more Cercone considers the Blue Knight's handiwork, the less of it he is inclined to admit into evidence. By the time he is finished censoring it, only a handful of sentences and sentence fragments remain.
Borkowski is willing to stipulate he received the Blue Knight essays from Cmdr. Catherine McNeilly, who downloaded them from the Internet. But if the defense doesn't agree to such a stipulation, then Cmdr. McNeilly must testify. And the defense opts to make her do so.
By casting Robert McNeilly's wife in the role of prosecution witness, the defense hopes to bolster its argument that Cooperstein's real crime was mocking the chief of police. But there is a downside: Who worse to read the Blue Knight's excerpted remarks into evidence than the wife of the Knight's arch-enemy? The written word is, after all, subject to all manner of dramatic interpretation. A pause here, an inflection there can make a vow of eternal love sound like a threat.
The defense is gambling that Catherine McNeilly will play it straight. And she does. She reads the five excerpts in a court-reporter's near monotone. The jurors look interested, but not scandalized.
Cmdr. Ron Freeman, the next and last prosecution witness, says he became aware of the Blue Knight sometime in 1997 and later was told by an anonymous caller that the author was Cooperstein. He recounts another phone conversation in which a man who identified himself as Cooperstein acknowledged playing a major role in the controversial Web site.
Freeman says he told Cooperstein he thought the Blue Knight's early efforts were good. But the essays had degenerated into personal attacks lately, and Cooperstein could find himself in trouble if they continued.
"He was very popular [with police officers at one time]," Freeman acknowledged. "I thought it was a healthy format and dealt with issues [police] wanted out there. I thought the personal attacks were unwarranted and that he had more credibility" when he dealt with issues.
"I disagreed with his new approach, which was personal attacks on other officers."
On cross-examination, Freeman says he did not tell Chief McNeilly that Cooperstein was the Blue Knight until late September 1999. Reich asks why he did not speak up after the shooting. Because, says Freeman, he didn't think it was relevant.
And why not?
Because, Freeman says, Cooperstein did not strike him as racist or trigger-happy.
Reich should quit now. The Blue Knight testimony, so injurious to his client in theory, has proven harmless in practice. The defense isn't planning to call any character witnesses for Cooperstein, but Freeman sounds like one.
True, Reich knows Freeman told Chief McNeilly about the Cooperstein conversation long before September 1999. McNeilly's Dec. 23, 1998, letter to the superintendent of county police says as much. Reich could wait until his closing argument to point out the discrepancy, and Freeman would have no chance to recant or explain. Instead, he confronts Freeman, who duly amends his original answer before leaving the stand.
Even so, the prosecution case comes to a close with a thud.
The defense phase
The defense now has several decisions to make. Does it move once again to dismiss the charges? In the likely event that the trial continues, does Cooperstein testify? Does anyone testify? Or does Reich simply argue instead that the prosecution has not met its obligation to prove beyond reasonable doubt that his client is guilty?
The answers are not long in coming. More as a matter of form than out of any real hope of success, the defense team files a 15-page demurrer arguing that the Commonwealth's case is insufficient to justify a conviction. Cercone hears oral arguments on that motion on the morning of Tuesday, Feb. 1, and, as expected, rejects it.
Cooperstein will not testify. There is no need for him to explain why he wrote the comments the jury has heard, or to deny that he wrote them. The Blue Knight has had his day in court, and the prosecution has not laid a glove on him.
The defense will call other witnesses, nine in all. Four are parole officers of one sort or another. Three, including Lisiecki, are use-of-force experts.
Richard Diamond, the Zone 2 cop leading the pursuit of the Grimmitts when Deron was shot, leads off. Diamond was listed as a potential prosecution witness, but was not called. The reason will be obvious soon.
Diamond testifies he was roughly 100 yards behind the Grimmitt brothers when they barreled past the county jail and approached the spot near Second and Try where Cooperstein was parked, beneath the Boulevard of the Allies ramp. Diamond was straddling the center line, he recalls . . . as were the Grimmitts.
Borkowski, visibly angry, notes on cross-examination that Diamond testified at the coroner's inquest the Grimmitts were "near" the middle of the road, not "in" the middle or "straddling" it.
The prosecutor implies that Diamond is bending the truth to protect a buddy. The witness denies it. In reality, as Reich notes on re-direct, Cooperstein and Diamond were only co-workers, not pals. They never socialized together. Diamond is flirting with prison if he is perjuring himself. And Chief McNeilly is unlikely to award him a medal for testifying in Cooperstein's behalf.
Reich infuriates Borkowski by reading aloud portions of Diamond's testimony from the coroner's inquest, with heavy emphasis on words and phrases that suit his purpose. Borkowski objects. Reich is testifying, he points out.
Cercone mulls the objection momentarily before overruling it. "I'm not going to make a big deal over whether Mr. Reich reads it or the witness reads it," he says.
Reich continues reading them with exaggerated thespian flair. Jay Reisinger, his young associate, whispers gleefully to a reporter, "Sam is the best witness ever."
Parole background
A state parole officer testifies that Deron Grimmitt failed to appear for a parole-violation hearing three months before the shooting and faced theft and escape charges if caught. A county probation officer says Curtis Grimmitt was due in court on the morning of the shooting for a probation-revocation hearing. Their testimony fits neatly into the defense's campaign to portray the brothers as desperate men who would not have hesitated to run over a police officer who had the misfortune to get in their way. As does the subsequent testimony of a third parole officer who arrested Deron Grimmitt less than a month before Grimmitt's death.
"He told me that if he had his [gun] with him that day, we wouldn't have caught him," the officer, Todd Ferner, remembers.
Detective Tallent, the accident-reconstruction specialist, is called back to the witness stand to testify he found nearly $1,000 in cash and money orders in the Chrysler.
Reich objects to a badly worded question on grounds it is "unintelligible."
"What?" says the judge.
Reich isn't sure if Cercone did not hear the word or does not know its meaning. He is taking no chances. "It's gibberish," he says.
Borkowski is seething. During a brief recess, he asks Cercone to instruct Reich to refrain from referring to his questions as gibberish, at least in the presence of the jury.
Before Tallent leaves the stand, the prosecutor exacts a measure of revenge. He objects to a question by Reich on the grounds it is "leading, argumentative and narrative."
"Anything else?" Cercone asks sarcastically.
"Gibberish?" Borkowski ventures.
The defense testimony continued with Lisiecki's third at-bat. Reich leads him straight to the point. In the sergeant's expert opinion, the defendant's actions were justified "to prevent death or serious bodily injury to himself."
Borkowski's attempt to discredit Lisiecki on cross-examination serves only to give the veteran cop an outlet for his pent-up anger. Lisiecki is outraged because he was ordered to submit a written report on the fatal incident and then "punished for my opinion" that the shooting was justified.
To the consternation of Cooperstein's attorneys, the defense's penultimate witness, Robert Swartzwelder, spends the lunch break talking with Borkowski before being sworn in. There is no rule against this, but the defense lawyers worry that it will give Borkowski an undeserved edge.
They needn't worry. Swartzwelder, a Pittsburgh cop who has spent more than a decade instructing other policemen in the use of force, feels so strongly that Cooperstein behaved reasonably under the circumstances that he is trying to get the prosecutor to see the light. The only thing Borkowski is getting from their conversation is frustrated.
LoPresti establishes Swartzwelder's expert credentials for the record. For the benefit of the jury, Borkowski notes that in all five criminal cases in which Swartzwelder has appeared as an expert witness, he has concluded a police officer's actions were justified.
Swartzwelder says Cooperstein responded to grave and imminent danger the way a reasonably minded officer with similar training would react.
"I think he was trapped," the witness says. "His vehicle was to his right. He can't go over his car to get out of the way. Going to his left puts him in harm's way. . ."
Borkowski's frayed nerves are visible on cross-examination. "May I finish the question?" he snaps at one point.
Swartzwelder keeps his composure. He agrees with Borkowski that flight is sometimes a reasonable option for a police officer in danger, "but so is shooting. If it's my life, I'm going to shoot."
The final defense witness is Urey Patrick, a retired FBI agent with impressive law-enforcement credentials. Patrick, a Princeton graduate, has taught courses in crisis management, judgmental shooting and arrest procedures at the FBI Academy.
Borkowski argues that Patrick's testimony would be repetitious. He is correct in a sense; the prosecution is already dead. Patrick is just one more nail in the coffin. But the judge isn't buying.
"If I were to limit cumulative testimony," he says, "this trial would have been over a week ago."
Soft-spoken and sure of himself, Patrick tells the jurors policemen are trained once they shoot to keep shooting until they perceive the danger is over.
Cooperstein "waited until he could not afford to wait any longer," the witness says. "I find it very significant that he only fired four rounds. Once the danger had dissipated, he discontinued the use of deadly force."
Treating each shot as though it were an event unto itself would be irrational and unfair to the defendant, Patrick lectures. "For the people engaged in that incident, everything coalesces into one event. We can break it down, analyze it. But for the participants, it's a seamless event ... So the critical issue was, under what circumstances was the first shot fired."
Borkowski suggests in questioning Patrick that Cooperstein was in danger only because he put himself where he didn't belong. Patrick rejects the idea.
Borkowski talks about "shooting to kill." Policemen don't, Patrick corrects. "They shoot to achieve the end of making the individual cease the activity" that caused the policeman to fire.
Hadn't the Grimmitts done all they could to avoid contact with the police? Borkowski asks.
"It seems to me that running a red light wasn't taking every precaution to avoid police contact," Patrick says. "Driving at a high rate of speed in the wrong lane isn't taking every precaution."
Sensing this battle is irretrievably lost, Borkowski allows his frustration to run away with his better judgment. He launches into a hypothetical question so long, it seems he may never finish. "Assume further" he says to the witness, adding assumptions like cars to the back of a train. "Assume further. . . Assume further. . . Assume further."
Where is he going? What if, after the 50 assume furthers we've already heard and the 50 more he seems ready to add to them, Patrick clears his throat and says, "I'm sorry. Would you please repeat the question?"
But just when the court reporter appears ready to scream for mercy, Borkowski sets the hook. "Assume further," he says yet again, "that a racist police officer. . ."
The end of the assumption is inaudible due to LoPresti's shouted objection. After Cercone reproaches Borkowski, the prosecutor retracts the question.
The defense closes
The defense hired Reich for his skills as an orator. His closing argument is a reminder of that.
He begins at 10:10 a.m. and speaks for an hour and 55 minutes, not counting an unscheduled, 15-minute intermission prompted by his suspicion that one juror is falling asleep.
Cooperstein sits with his hands folded in front of him, eyes downcast, tension etched in his face.
"The case against him, " Reich asserts, "has always been cynical, tactical and unworthy ...
"We authorize [police officers] to use firearms to protect us. And when those arms are used, part of us feels relief ... and part of us feels revulsion."
Reich summarizes the forensic evidence disdainfully, arguing that it is inconclusive at best. Then he gets to the heart of the matter.
"I do not suggest [Deron Grimmitt] had murder in his heart," he said. "He did not care [if he ran over Cooperstein]. He was recklessly indifferent."
Knowing the Blue Knight will surface again when Borkowski addresses the jury, Reich turns his attention to him.
Without admitting the author's identity, Reich acknowledges the Blue Knight's use of "harsh and overstated" language, but adds: "When he talks about the law, he is generally correct."
Tough talk is just that -- talk, Reich argues. If Cooperstein's supervisors thought he was a racist, would they not have transferred him out of the Hill District or, at the least, confined him to desk duty? If we insist that a cop runs and hides in the face of danger, he says, then "someday when we need him, where will he be?"
The prosecution closes
It is the bottom half of the ninth for Borkowski, and he needs a big rally to get back in the game.
Having the last word is the prosecutor's greatest advantage, but Reich has diluted it by exhausting so much of the jury's attention span. Cercone is willing to send the jurors to lunch and bring them back later, but Borkowski prefers that they listen to him on an empty stomach. After a brief recess, Borkowski delivers an impassioned 40-minute speech.
He has a lot of catching up to do. He is relying heavily on forensic evidence to buttress the testimony of Curtis Grimmitt, whose veracity the jury may doubt. The jurors have been told what the evidence is but not what it means. It is up to Borkowski to explain that now.
Had Cooperstein's first shot been due east as the defense contends, Borkowski says, Officer Diamond would have been in the line of fire. The shot pattern indicates the defendant had a path of escape and chose not to use it. Where are the tire marks to indicate Deron Grimmitt turned sharply at the last second to avoid hitting Cooperstein?
Borkowski derides his own police witnesses, accusing them of being easily manipulated by Cooperstein's attorneys. Why didn't Diamond mention to Detective Tallent that the Grimmitts' car was straddling the center of the road?
"If your answer changes depending on who's asking the question, you're suspect," Borkowski argues. "The truth does not change depending on who's asking the question."
Deron Grimmitt, he says, was guilty of "bad driving, illegal driving. It's nothing that justifies a shooting ... I wish in some respects that the Grimmitt brothers were the desperados the defense is portraying them. But that's not the case."
The jurors have no good way to know who, if anyone, is lying and who is telling the truth. There are remarkably few facts in dispute. The major one being, Curtis Grimmitt says he was in the curb lane; Diamond says he was not.
The forensic evidence is incomprehensible. Its implications depend upon where you think the defendant was standing when he opened fire. The prosecution says based on its understanding of Lisiecki's early accounts of the incident that Cooperstein was parked east of Try Street. Lisiecki insists that interpretation is wrong.
The Blue Knight evidence is no help. What little the jurors have read and heard of it makes Cooperstein sound neither racist nor homicidal. It makes him sound like a cop. Freeman has told them he knew the author's identity and took no action beyond warning Cooperstein to stick with issues and refrain from personal attacks. How bad could the Blue Knight be?
In the end, they narrow their focus. They do not try to read minds or divine motives. They look at the law.
Three experts have testified that Cooperstein's conduct was legally justified. The statute governing use of deadly force is something solid they can get their minds around. It leads them to a consensus: Not guilty.
It is the only verdict possible based on the evidence they have heard. But has justice been served?
Only Jeffrey Cooperstein knows for certain. Curtis Grimmitt, the only other eyewitness to the shooting, does not. Because he does not know what was going on in Cooperstein's mind.
There are things we will never know about this tragedy -- things neither Cooperstein nor Curtis Grimmitt can say with any real certainty; things that, for all our science, we cannot prove or disprove.
No one is positive exactly where Cooperstein was standing when he opened fire, or the precise spot where his cruiser was parked. Certainly Cooperstein doesn't know. Why should he? No alarm sounded at the moment he set his hand brake to warn him that a momentous and terrible event was about to occur. He had no way of divining it soon would be vital to know if he was 10 feet east of Try Street or 10 feet west.
Curtis Grimmitt and the officers chasing him and his brother that morning were too busy to take notes.
But we do know more than the jury knew, including what Cooperstein says he remembers. We have the advantage of access to background information, legally inadmissible evidence and post-trial interviews. We can try to reconcile discrepancies in testimony and arrive at the truth. Like paleontologists replicating a dinosaur from scattered bone fragments, we can use what is known to infer what the missing pieces look like.
A return to the scene
Officer Jeffrey Cooperstein is sitting in his cruiser, wishing his shift were over, wishing he were somewhere else. Preferably in Pompano Beach with Marla. Or in his house in bed, asleep.
He has one eye on the entrance to the Aurora Club across the street. At this hour of the morning, there isn't much to see. Like every other cop in Zone 2, his police radio is tuned to Channel 1. It crackles to life, and he hears a voice he knows. Lisiecki announces he is in pursuit of a Chrysler sedan heading eastbound on Forbes.
Recalling their conversation a fortnight earlier, Cooperstein regrets his promise to act as Lisiecki's back-up. "God, let them keep going east," he thinks. "Let them keep going all the way to New Jersey."
He keys his microphone and suggests to dispatch that officers from Zone 6 respond, since the chase is heading their way. But when word comes the Grimmitts have turned around, he reluctantly puts COP-8 in gear and pulls away.
In the two minutes it takes him to get Downtown, he formulates a plan. He will park the cruiser on Second Avenue, west of the Allegheny County Jail, and stop eastbound drivers so they do not find themselves colliding head-on with the fleeing suspects. This, he thinks, will discharge his promise to Lisiecki while keeping him out of harm's way. He has been a Zone 2 cop long enough to realize the suspects are almost certain to turn off Second Avenue at either the 10th Street Bridge or the Armstrong Tunnel.
Two things Pittsburgh police officers know about these sort of chases: They rarely last longer than a couple of minutes. And the suspect never goes Downtown. Too few escape routes Downtown. Too many cops.
Cooperstein parks in the eastbound passing lane. If he parks in the curb lane, he knows from experience that drivers will try to swing left around him as though the police car were nothing more than a puddle, and he will have to stand in the passing lane to stop them. He does not want to be in the middle of the road with his back to oncoming traffic.
He gets out and walks toward the back of the cruiser, planning to circle behind it and stand on the passenger side. He has taken only a few steps when he hears a voice he recognizes coming over the cruiser's radio. It is Diamond, telling dispatch the suspects are nearing the county jail. Cooperstein does an about face and retraces his steps. He takes cover in the V formed by the left front door of the cruiser and the door frame. He sees the headlights of the oncoming Chrysler. But where?
Is the car in the curb lane, as Curtis Grimmitt insists? Is it straddling the yellow center line, as Diamond claims and Cooperstein believes?
We know for certain what did not happen. Deron Grimmitt did not swerve suddenly to avoid hitting Cooperstein. There would have been yaw marks on the road if he had. And we know, too, that his car did not strike Cooperstein or the driver's-side door of COP-8.
Are the Grimmitts in the curb lane? Almost certainly not. They are traveling at least double the posted speed limit, treating a twisting city street as though it were the autobahn. Ask yourself what part of the road you would use if you were driving at speeds that left you no margin for error. Or ask a state trooper which part he would use under those conditions.
Is it Deron Grimmitt's intention to run Cooperstein down? Unlikely. You're planning to kill a cop, you don't ask mom to come to the jail and post bail. He is going to come close enough to Cooperstein to intimidate him, but that's all. Who knows? Maybe the cop will drop the gun and run for safe ground. It happens in movies and no doubt in real life. What Deron has no way of knowing is that this particular cop is slowed by MS and has no faith in his own ability to outrun danger.
Deron Grimmitt is on a course that is going to take him within shaving distance of COP-8, but he is not going to hit the cop, not going to hit the open door of the cruiser, which would also be lethal. Deron knows what he's doing. The problem is, Cooperstein doesn't.
Cooperstein is staring down the barrel of his Glock at headlights that all but blind him. He never has fired his service weapon except on the practice range. Not in Loveland. Not in Pittsburgh. He has no desire to do so. He believes Chief McNeilly would like nothing better than to have an excuse to fire him. But from his perspective, it looks like -- it feels like -- the Chrysler is going to strike the protruding door of the cruiser and crush him.
So why doesn't it look that way to Deron Grimmitt or his brother Curtis?
Answer: Parallax. The apparent difference in the position or direction of an object when viewed from different positions.
Parallax is the reason that a pitch that looks like a strike to the umpire behind home plate does not look like one from a rooftop TV camera.
Parallax is the phenomenon that explains why the taxi in which you were riding didn't sideswipe the truck it just passed, even though you were sure it was going to.
Close your right eye, hold up your right thumb and use it to take a bead on some distant object. Now without moving your thumb, open your right eye and close your left. The distant object appears to have moved. Although, of course, it hasn't. That is parallax.
Deron Grimmitt's intentions, lethal or not, do not matter. Cooperstein has no way to know what they are. All he can do is rely on his senses and the only weapon he has. He fires.
His first shot grazes the Chrysler's roof. He fires three more times, as fast as he can, but he isn't Billy the Kid. He is a 43-year-old man with a chronic disease that slows his reaction time. The Chrysler is already past him by the time he stops shooting -- for the same reason a batter swings late at a 95-mile-an-hour fastball. His reflexes aren't up to the task.
Cooperstein is a white police officer. Deron Grimmitt was black. Did that color Cooperstein's thinking? No one but Cooperstein knows the answer to that. But this much we do know: Cooperstein worked harmoniously with black officers. He worked in a predominantly black neighborhood. There was never a complaint filed against him for harassing its citizens, either verbally or physically.
He was guilty of being the Blue Knight, which was possibly grounds for a libel suit but not for a murder charge. Deron Grimmitt was guilty, as well. Of parole violation. Of resisting arrest. Of recklessly endangering the lives of Cooperstein and everyone else in his path.
It was Deron's choice and his alone to throw the dice. He lost. He paid the price.
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