Benny Warr, charged with resisting arrest, said he was attacked by police. Staff file video, Rochester Democrat and Chronicle
Benny Warr, who received an award of $1 after a trial in which he claimed he was brutalized and seriously injured by police, is seeking a new trial.
In court papers filed this week, Warr’s attorney, Charles Burkwit, maintains that the jury’s verdict in the civil trial ran counter to the evidence. The jury largely exonerated three officers accused of misconduct and abuse, though did conclude that one of the officers, Anthony Liberatore, used excessive force in a May 2013 arrest of Warr.
Also, Burkwit noted in his court papers, the jury decided that Liberatore should be subjected to “punitive damages” — typically an award designed to punish an individual who committed a wrongdoing — but then set the award amount at no dollars.
That “award was inconsistent and against the weight of the evidence,” Burkwit wrote.
City attorney Spencer Ash has responded in court papers that the jury’s verdict aligned with the evidence and that jurors “did not buy (Warr’s) conspicuously false narrative.”
The court salvos largely echo the conflicting testimony from the recent civil trial in federal court, with Warr, who was in a wheelchair which was pushed over when he was arrested, contending that he suffered serious injuries from a beating inflicted upon him by police.
Meanwhile, city officials maintain that Warr initiated the conflict that led to his arrest, tussled with police, and had suffered earlier injuries in life that he now wants to claim happened during the physical confrontation.
Warr, who lost part of his leg when he was a child and has worn a prosthesis since, testified that he was simply waiting for a bus when he was knocked from his wheelchair by police the evening of May 1, 2013. He maintained that he was severely beaten and now suffers from post-traumatic stress.
Evidence showed that he was kneed in the abdomen and hit in the head with an “elbow strike” by police, but police and city officials said the response was proper given Warr’s aggressive response to an attempt to arrest him on a disorderly conduct charge.
Police alleged that Warr was combative and possibly trying to inflame an angry crowd when they arrested him. They said he that he punched them, and continued to fight after he fell to the ground from his wheelchair.
He was arrested on disorderly conduct and resisting arrest charges; a judge later agreed to what is known as an “adjournment in contemplation of dismissal,” leading to the eventual dismissal of the charges after Warr was accused of no more crimes over a six-month period.
In his request for a new trial, Burkwit argues that:
• Medical evidence showed that Warr suffered fractured ribs from his arrest.
• His injuries complicated his ability to now walk with a prosthesis, which he could do beforehand.
• Warr will need years of medical treatment, and a jury decision to award no compensatory damages is not consistent with a determination that Liberatore did use excessive force.
• Attorney Ash committed misconduct during the trial that impacted the jury’s decision, including showing the jury medical records that were not supposed to be admitted at trial; briefly showing a video clip that also had been precluded; and maligning an expert who testified for Warr as being “down the line of doctors.”
In his response, Ash answered that:
• Warr, who previously struggled with drug addiction, had a lifetime of “chronic degenerative medical conditions” and the rib fractures may have been old injuries.
• Warr claimed his head was “punted like a football” in the arrest yet showed no outward signs of head injury afterward and clearly talked lucidly with a witness who was there.
• Warr “tried to instigate” the altercation to have a friend then record it on a cellphone.
• Any errors made by Ash during the trial were resolved quickly by instructions to the jury from the judge and were irrelevant when weighed against the bounty of other evidence.