Appeal of Benny Warr Police Brutality Verdict Centers on Sanctioned City Attorney's Conduct

by DARIEN LAMEN

ROCHESTER NY--A panel of judges heard oral arguments Wednesday in the case of Benny Warr, a police brutality victim who is appealing the outcome of a 2019 civil lawsuit against several current and former Rochester police officers.


But throughout the proceedings Wednesday, it often seemed as though the police officers' lawyer, City of Rochester Attorney Spencer Ash, was the one on trial.


“I’ve got to say I have never seen a record of a trial in this Circuit that reflects what I saw when I was reading these briefs and studying the record," said U.S. Court of Appeals 2nd Circuit Judge Barrington Parker Wednesday.


"It was mayhem. It was just, in some respects, a free for all.”


In 2019, an all-white federal jury in Monroe County found that former-RPD Officer Anthony Liberatore had used excessive force against Benny Warr in 2013 when he tipped the disabled African American man out of his wheelchair on Jefferson Avenue and delivered a downward elbow strike to his head.


But while the jury found Liberatore at fault, it awarded Warr just $1 in damages. The other officers in the lawsuit were cleared of all charges.


Warr’s attorney, Charles Burkwit, is appealing the outcome of that trial on the grounds that the attorney for the RPD officers repeatedly disobeyed the judge’s instructions by presenting information that portrayed Warr as a criminal and his neighborhood as a hotbed of criminal activity.


“It’s my position that [U.S. Magistrate] Judge [Marian] Payson could not keep control over the demeanor of the trial due to Mr. Ash’s misconduct,” Burkwit said during Wednesday's appeal proceedings, adding, “I think everything that was allowed in here painted a picture of Benny Warr as a criminal unworthy of compensation, cumulatively, yes there was too much prejudice and damage done for Mr. Warr to get a fair trial.”


The Judge in the 2019 trial ultimately sanctioned the RPD’s defense lawyer Spencer Ash for his conduct, saying she believed the city attorney had intentionally undermined her instructions.


City Attorney Spencer Ash

“I did make some mistakes, I am personally embarrassed," Ash told the U.S. Court of Appeals Wednesday. “But [Judge Payson] rightly pointed out that these mistakes did not affect the overall character of a two-week trial [with] seventeen witnesses, thousands of pages of documents.”


Ash said he had never been sanctioned before 2019, but that he has been sanctioned again since then.


U.S. Court of Appeals Judge Joseph Bianco said he “appreciated” Ash’s more measured tone Wednesday, contrasting it with his written brief for the case, which Bianco characterized as “combative” and “defensive.”


Bianco also criticized Ash’s superiors in the City of Rochester Legal Department for not keeping a closer eye on Ash's work in the appeal.


“It is not everyday, to say the least, that we have before us a case in which a representative of a government agency, a lawyer for a government agency, has been personally sanctioned by the judge. And it seems to me that it would behoove an office that is aware of that to take some interest in how the case is then defended on appeal," Bianco said. "I just can’t help but caution you and to some degree the office that you represent about the way in which matters like this should be briefed."


Toward the end of Wednesday’s oral arguments, Judge Bianco questioned Benny Warr’s attorney as to why he wasn’t asking for an entirely new trial.


“You’re not asking for a new trial altogether, you just want for the damages to be reassessed on Mr. Liberatore. If the trial got so out of control, why is your remedy so narrow?” Bianco said.


“Instead of retrying the entire case over again, we felt it would be easier just to limit to a trial on the issue of damages, but your Honor, whatever remedy you fashion is what remedy you fashion,” Burkwit said.


It’s unclear when the Court of Appeals will make its decision in the appeal, but sources say it could take several months.


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DARIEN LAMEN is news director/producer for Reclaiming the Narrative. He can be reached at wxirnews@gmail.com.