Ex-NOPD officer found not guilty in beating case
By Laura Maggi
NEW ORLEANS — A police officer fired from the New Orleans Police Department for the post-Katrina beating of a retired school teacher was cleared of criminal wrongdoing on Tuesday, declared "not guilty" of battery and false imprisonment by Judge Frank Marullo.
The incident on Bourbon Street five weeks after the storm received international attention, as parts of the altercation between several law enforcement officers and Robert Davis, 66, was captured by two cameramen and broadcast around the world. The tape was often referred to as the prime exhibit of the post-Katrina struggles of a police department with a long history of police brutality.
But both the defense and prosecutors said the tapes bolstered their cases.
Marullo sided with the defense, saying that instead of the brutal beating decried by prosecutors, the video showed that Davis was resisting the officers' attempts to handcuff him. Robert Evangelist, who graduated from the NOPD training academy in October 2003, didn't use excessive force, the judge concluded after Evangelist had opted not to have a jury trial.
"I don't even find it was a close call. I saw five minutes of struggling to put on the cuffs," Marullo said, of the scenes in the video that shows Davis pushed against a wall with two officers behind him and, then, on the ground grappling with four police officers, each trying to grab a different part of his body. Two of those officers turned out to be FBI agents who were helping patrol the streets of New Orleans in the weeks after Hurricane Katrina.
Davis, who was 64 years old on Oct. 8, 2005, testified that he was staying at a downtown hotel with his family after the storm and often took walks after dinner. That night, around 8 p.m., he wandered onto Bourbon Street in search of cigarettes, he testified. Confused about the time of the city's curfew, Davis said he asked a mounted police officer what time people were expected to get off the streets.
Instead of being answered by that officer, Davis was approached by Evangelist, who was on a foot patrol on Bourbon Street. Davis said Evangelist and another officer walked between him and the officer on the horse. He recalled saying outloud that the two officers were "ignorant, unprofessional and rude."
After he walked away, Davis said he recalled someone run up behind him, throw him against a wall and punch him. At that point, the officer behind Davis called him a racial slur, he said, adding, "You know I can kick your ass."
Evangelist, 37, who took the stand in his own defense, had a different recollection, denying the racial slur and saying Davis called him a swearword. Evangelist said shrugged off the insult, but thought Davis appeared intoxicated and in need of some assistance. He said the man had "bumped into" the back of a mounted police horse.
At that point, Evangelist said he put his hands on Davis to guide him out of the street and onto a sidewalk, so they could talk. Evangelist recalled that Davis elbowed him in the chest, became belligerent and would not submit to being "patted down." Davis pushed himself away from the wall he was facing and Evangelist recalled pushing back.
"He was strong," the former officer testified.
At that point, Evangelist and another officer, Lance Schilling, were trying to handcuff Davis. Schilling, who committed suicide last month, had also been charged by District Attorney Eddie Jordan's office for the beating.
Under cross examination by Assistant District Attorney Cate Bartholomew, Evangelist said one of the most memorable sequences in the videotape was Schilling striking Davis several times in the back of the neck to get him to submit to handcuffing.
Evangelist also admitted to "striking" Davis twice on the right elbow with an expandable baton and, when the retired teacher was on the ground, attempting to strike him on the right shoulder and also kicking him on the shoulder. All of these actions were taken to handcuff Davis, he said.
Two defense experts testified that the amount of force used by Evangelist was within reasonable bounds.
"My belief in watching the video is the officer had sufficient cause to escalate more quickly than he did," said Major Kerry Najolia, the director of the Jefferson Parish sheriff's training academy, who testified on behalf of the defendant. "Officers Evangelist and Schilling used a tremendous amount of restraint."
Two eyewitnesses called by the prosecution said they recalled the police officers repeatedly punching Davis in the body and face. Michael Monaghan said that as he and a friend were walking down Bourbon Street, they came upon officers beating a man. He described seeing Davis "knocked to the ground," and then multiple officers trying to get a hold of various parts of the man. One of the law enforcement officers kicked the back of Davis' head, said Monaghan, of Florida.
Debbie Clyne of Vancouver, British Columbia, who was in town working with non-profit organizations, said that when Davis was up against the wall she saw several officers punching him repeatedly. "I went up to them and yelled at them to stop," she said.
Defense attorney Franz Zibilich questioned the veracity of these witnesses, saying the things they described were not on the videotape.
"This video screams and hollers two words: those words are not guilty," Zibilich said in his closing argument.
But Bartholomew argued in her closing that what the video showed was Evangelist trying to unlawfully detain Davis with handcuffs. This amounted to false imprisonment, the prosecutor said. The beatings that Evangelist incurred were sufficient to merit a guilty verdict for second-degree battery, she added.
Bartholomew also acknowledged that the case is a politically loaded one, saying that whatever Marullo decides will be criticized. "If you find him guilty, it will signal the NOPD is corrupt. If you find him not guilty, it supports the public's contention that the NOPD can get away with anything," she said. "I ask for a fair and just verdict in this case."
In explaining his decision, which he made immediately after closing arguments, Marullo said that the officers acted within reasonable bounds. He also questioned why the DA's office didn't also press charges against the two FBI agents shown in the videotape, saying that it didn't appear Davis sustained injuries until he was toppled to the ground. "You chose when and where and who to prosecute. And you were wrong," Marullo said.
The actions of the FBI agents shown in the videotape were reviewed by the agency and determined to be "appropriate" after a review, said Shelia Thorne, a spokesman for the FBI's New Orleans office.
Both Evangelist and Schilling were fired by Superintendent Warren Riley in December 2005,
A misdemeanor battery charge against a third officer, Stewart Smith, was dismissed last month, with Marullo saying the district attorney had blown the deadline to go to trial. Smith was accused of jabbing his finger in the face of an Associated Press producer in an attempt to get him to stop filming.
After the Evangelist was declared "not guilty" by Marullo, a union representative for the Police Association of New Orleans said that the officer can now seek a civil service review challenging his termination from the force.
Copyright 2007 New Orleans Times-Picayune
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