Officer Wayne Simoes Found Not Guilty

After a 5-day trial, it took the jury of 8 men and 4 women just over 5 hours to find Officer Wayne Simoes,39, of the Yonkers Police Dept. not guilty of violating Irma Marquez' civil rights.

Officer Simoes had faced 10 years in prison if convicted of body-slamming Irma Marquez, 44, face-first into the floor of La Fonda restaurant on March 3, 2007, breaking her jaw and causing extensive injuries that required her hospitalization. The incident was captured on the restaurant's surveillance camera.

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The video was shown numerous times throughout the 5-day trial. Prosecutor Anna Skotko had told the jurors, "Trust your eyes." An FBI expert said the video's quality was good enough to show what happened.

John Liberatore, a fellow officer who was present, testified that he saw Simoes lift Marquez off the floor from behind and throw her down. He said he then turned to his partner and, using an expletive, asked "What the ... just happened here?"

The police captain at the scene, Edward Geiss, testified that at the time, he felt Simoes' action "probably involved excessive force." On the other hand, he said he didn't think Simoes intended to hurt Marquez "the way he did."

Then the defense team for Wayne Simoes went to work. They called on the services of  a video expert, Grant Fredericks.

"In this video she was dropped, clearly," Grant Fredericks said.

Fredericks, who has taught forensic video analysis at the FBI's training academy in Virginia, testified that frame-by-frame analysis of the video led him to conclude that Marquez was dropped. He said that the restaurant's video system captured only 15 frames per second, less than the standard television broadcast. That, he said led to the system saving only a fraction of what actually happened from second to second.

He said the only way to determine what happened is to look at the video frame by frame, essentially to break the video down to still photographs.

"You can't possibly understand what the video is telling you without doing that," he said. "It goes by too fast."

The owner of La Fonda restaurant, Julian Santos, also testified saying that Simoes did not throw Marquez to the ground.

"He picked her up and it seemed like she lost her balance and fell," Julian Santos said, testifying through an interpreter.

In order to convict Simoes of violating Irma Marquez' civil rights the jury had to find that Wayne Simoes intentionally caused her harm. Apparently after hearing from the defense witnesses, they were unable to do so.

Defense lawyer Andrew Quinn said that by showing the jurors stills from the video, he was able to prove that the takedown of Marquez was an accident and that Simoes had "no intent or desire to hurt Ms. Marquez or violate her civil rights."

Simoes seemed stunned when the verdict was read. He expelled his breath loudly several times, then wiped his eyes with a tissue and hugged his lawyers and his wife. Simoes said outside that he felt bad for Marquez. He thanked his lawyers, his wife, his colleagues and everyone who "saw through all the garbage."

Yonkers Police Commissioner Edmund Hartnett welcomed the jury's verdict, saying he always believed what happened was an accident. "Police Officer Simoes never intended, in my opinion, to hurt this woman," he said. "It was a mistake."

Marquez, who filed an $11 million lawsuit against Simoes and the city, suffered a broken jaw and concussion in the incident. She was charged with misdemeanor counts of disorderly conduct and obstructing governmental procedure, but a Yonkers City Court jury cleared her of those charges in May last year. A couple of weeks later she filed her lawsuit in federal court. It is still pending.

Neither Marquez nor Simoes testified at the trial.

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Officer Wayne Simoes on Trial

It was on March 3, 2007 that Yonkers police officer Wayne Simoes,39, picked up a drunk, unarmed Irma Marquez, 44, and body-slammed her head-first into a ceramic tile floor so hard that she had to be hospitalized, receiving:

A head injury with related loss of consciousness, memory loss, a fractured jaw, two black eyes, facial contusions, severe swelling and bruising, hemorrhaging in both eyes, laceration to the nose, chin and mouth, neck and back pain, bruising and/or lacerations about the back, arms, hands, right knee, right leg, right hip, right breast and various other harms.

After the body-slam, officer Wayne Simoes then handcuffed and charged the unconscious and seriously injured woman with Obstruction of Governmental Administration and Disorderly Conduct. On May 9, 2008 a jury acquitted Ms. Marquez of all charges. Irma Marquez has filed an $11.3 million lawsuit.

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In addition to the lawsuit, Wayne Simoes was arrested and indicted on federal civil rights charges that allege he assaulted Irma Marquez and violated her right against unreasonable force from a police officer. If convicted he faces up to 10 years in jail. That trial has just started (5/18/09).

In the White Plains courtroom on the first day of Wayne Simoes' trial were his wife and parents. Also in attendance were several off-duty Yonkers police officers.

The first witness to testify was fellow police officer, John Liberatore, who was on the scene at the time of the incident. Irma Marquez' niece was being attended to by medics. He (John Liberatore) testified that Marquez was drunk and concerned for her niece's safety but had not threatened anyone and had not been warned she would be arrested.

He said he saw Simoes reach around Marquez's waist from behind, lift her off the floor and throw her down, without losing his balance, slipping or falling. Liberatore said he turned to his partner and, using an expletive, asked "What the ... just happened here?"

His partner "just shrugged," Liberatore testified.

Prosecutor Benjamin Torrance told jurors that Simoes "deliberately, intentionally and powerfully threw Ms. Marquez into that floor." He said that Marquez had done nothing to incur such force and that none of the other officers at the scene considered her a threat, allowing her to walk around freely as they investigated the brawl.

When she hit the floor, "the sound resounded throughout the room" and a pool of blood formed around her head, the prosecutor said.

Defense attorney Andrew Quinn offered the jury a different version of what happened. He told jurors that the video did not tell the whole story. He said the recording was a time-lapse video, with moments missing, and is not meant to be used to judge speed or force. He said it would show a different story when viewed frame by frame.  "We're going to break this down for you," Quinn said.

Quinn did, however, acknowledge that Marquez had been injured, but said she was "stumbling drunk" and getting in the way of officers trying to aid her niece. He said Simoes approached her and tried to handcuff her, but she pulled away. After she bumped into another officer, he said, she and Simoes went to the floor, with Simoes holding her and trying to avoid both a pool table and the injured niece on the floor.

"His intent was to control the situation," Quinn said.

In a surprise move before the start of the trial, Assistant U.S. Attorney Anna Skotko said the prosecution won't call Irma Marquez. She did not say why federal prosecutors would not be calling Marquez to testify. Simoes' defense team expressed surprise at the decision:

"I'm at a loss to understand it," lawyer John Patten said during a break. "It's obviously a tactic by the government. My guess is they don't want her to be questioned about her belligerence and lack of sobriety that night."

The trial continues........

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Police Officer Charged with Assault

Yonkers police officer Wayne Simoes faces a possible 10-year prison term and a $250,000 fine. He has pleaded not guilty to charges that he violated the civil rights of 44-year-old Irma Marquez, in an appearance in federal court. He is accused of body-slamming the unarmed woman onto a tile floor, breaking her jaw and leaving her unconscious. The 38-year-old Simoes was freed on $300,000 bail. See TV coverage of Irma Marquez and Wayne Simoes here.

The incident was captured on video and reviewed by U.S. Attorney Michael Garcia who said the actions of Simoes amounted to an assault. He said it violated Marquez right against unreasonable force from a police officer.

The violent attack resulted in the hospitalization of Marquez with a fractured jaw, concussion, two black eyes and facial lacerations, as well as bruises and swelling over her neck, torso and numerous other parts of her body, according to the complaint.

Ms. Marquez alleges she was accosted by police when she leaned over to get a better view of the medical assistance being provided to her niece who was earlier rendered unconscious when struck by a bottle thrown by an unknown assailant while patronizing the La Fonda Restaurant at 57 Palisade Avenue, Yonkers, New York on March 3, 2007. Police Officer Wayne Simoes is said to have “slammed Ms. Marquez to the floor then handcuffed and charged the unconscious and seriously injured woman with Obstruction of Governmental Administration and Disorderly Conduct. On May 9, 2008 a jury acquitted Ms. Marquez of all charges.

“If anyone other than a police officer was caught on tape doing what Police Officer Simoes did to Irma Marques they would have rightfully been arrested and prosecuted,” said Gary T. Certain, Esq., of Certain & Zilberg, PLLC, attorneys for Ms. Marquez.

Lawyers for Irma Marquez have filed an $11.3 million lawsuit on her behalf.