Buffalo police Officer Raymond Krug in a file photo from 2002.
Even now, nine years later, the accounts differ on what happened to Donald J. Silmon while he was handcuffed in the back seat of a Buffalo police car.
Did Detective Raymond Krug shoot the teenager with a BB gun?
And did Officer Joseph Wendel egg Krug on?
Now in his 20s, Silmon will be the key witness in a civil rights trial that centers around allegations that Krug and Wendel used excessive force against him and three other teenagers on Treehaven Road that May night in 2009.
The trial, scheduled to begin Wednesday, will also cast a light on Gregory Kwiatkowski, a retired Buffalo police lieutenant who admitted putting his hands around Silmon’s neck that night. He will testify against Krug and Wendel as part of a plea deal with federal prosecutors.
The defense is expected to challenge Kwiatkowski’s credibility as a government witness and point to a “long list of disciplinary issues.” Kwiatkowski retired in 2011 with three separate cases alleging improper conduct pending against him.
Prosecutors declined to comment on the coming trial but, in pre-trial briefs, outlined what they think happened to Silmon, identified in court papers as D.S. They claim it started with Krug firing the BB gun at Silmon.
“A BB lodged in D.S.’s lower leg in the first shot, and not only did Wendel fail to stop Krug from shooting D.S. with a BB gun the first time, he encouraged Krug to shoot D.S. a second time,” the government said in court papers.
Prosecutors said “after Wendel’s urging, Krug fired the BB gun a second time and hit D.S. near his genitals in the upper area of his upper thigh.”
Krug and Wendel are currently suspended with pay. If convicted, they face up to 10 years in prison.
With the case heading to trial this week, lawyers on both sides declined to comment.
While the allegations against Krug and Wendel date back nine years, the trial before U.S. District Judge William M. Skretny begins at a time when police shootings and police relations with African-Americans are in the spotlight.
Silmon and the three other teens arrested that night, all now in their 20s, are black. Krug and Wendel are white.
Even before they faced criminal charges, Krug and Wendel were defendants in a civil case that Silmon and Jeffrey E.Campbell II, one of the other teens, filed against the city.
Court records indicate Silmon received a $65,000 settlement while Campbell received $10,000. In the civil suit, Silmon said it was Krug who fired the BB gun and that Wendel was there, watching and laughing.
It’s not clear if the civil suit will be come up at the criminal trial and Skretny has voiced concerns that, if it does, it could result in “a trial within a trial.”
Led by defense lawyers Terrance M. Connors and Rodney O. Personius, Krug and Wendel are expected to counter with evidence of the teens’ actions that night in 2009.
Arrested in what police called a drive-by BB gun shooting, the teens were accused of firing into a crowd at Main and Custer streets and striking at least two people.
“At the time, Detective Krug and Officer Wendel were aware that numerous BB gun shootings had been occurring in the area over the course of a number of weeks, causing both property damage and personal injury,” Connors said in court papers.
The incident resulted in the four teens being charged with felony assault, reckless endangerment and criminal possession of a weapon but pleading guilty to a lesser charge of harassment. They were each sentenced to a conditional discharge and community service.
As part of their defense, Krug and Wendel may call the two shooting victims to the witness stand in order to offer evidence of their state of mind.
The defense is also expected to counter with questions about why the government waited until three days before the end of the statute of limitations to file criminal charges against the two officers.
Investigated by the FBI and indicted by a grand jury in 2014, five years after the incident, Krug and Wendel were initially charged along with Kwiatkowski.
The charges also came four years after Silmon and Campbell filed their civil suit.
It is possible the defense might also argue that Silmon and Campbell pointed the finger at Krug and Wendel in an effort to increase the number of defendants in their civil suit and the potential for a large monetary award.
In court papers, Personius said the criminal case, which came later, forced the two men to stick with their stories or face perjury or false statement charges.
The trial, delayed twice, almost went to a different judge earlier this year but, at the defense’s urging, Skretny kept the case.
Connors said “recruiting a new judge would be at the expense of all parties, especially Detective Krug and Officer Wendel.”
Assistant U.S. Attorneys Aaron J. Mango and John D. Fabian are leading the prosecution.