WEXLER: I think it’s fair to say that many people in our community who were following the trial of the killing of James McGrath and the stabbing of three other people in what was described as a fight between two groups of young men that ended in the stabbing with Raul Valle having a knife and stabbing all of these people. I think that many people in our community were shocked to see that the jury by an 11 to 1, as we found out later, did not convict on any of the charges, whether the top charge or the intentional charge or the lesser charges. Prosecutors saying in court last Wednesday that the state intended to file the lesser charges against Valle, which they were entitled to do because when a jury does not either convict or acquit, it is a mistrial and in a mistrial it is not double jeopardy and a prosecutor can try again. But they cannot try again for the more serious offenses for which Raul Valle was charged. Joining us now is Frank Bevilacqua who is a criminal defense attorney of many years. He’s now a criminal defense, public defense attorney for Stamford where he practices regularly. He was with the law firm of De Pampalas and Valerie for many years in private practice and he’s very very knowledgeable on all this. Frank Bevilacqua, welcome back to The Lisa Wexler Show today and thanks for coming on.
BEVILACQUA: Good morning Lisa. Thank you for having me.
Understanding Specific Intent
WEXLER: Yeah, so Frank, I want to begin at the beginning. Do you think that this case, from the beginning, that the prosecutor created the correct indictment based on the facts as you saw them to be?
BEVILACQUA: No. The young man was 16. You have to show specific intent to murder someone. This was not an issue of that. I believe he was overcharged, the young man. And what he was facing was a lot of years, 40 years with the, what he was looking for. And kudos to the attorney that represented him. He did an excellent, excellent job. The elements didn’t fit the allegations for the charge.
WEXLER: So talk to us about the elements, because apparently the jury foreman came out and said that that was an easy, that was easy, that the entire jury, 12 of them, believed that the top charge did not fit. So what are the elements of specific intent? What would it have taken to do that?
BEVILACQUA: He had to have the intent to cause the death of another person, a person. He did not have that intent to cause the death of that person. And let’s, before we begin, it’s tragic. A young man is gone. There’s no denying it. But the charges did not fit the allegations and the elements were not met.
WEXLER: Well, what if somebody in a fury, in a fear of self-defense, which I know that they say they never even got to, but what if as a legal matter, if someone in a self-defense intends to inflict as much harm on someone else in that moment of, in that moment of adrenaline because they’re trying to defend themselves, is that equivalent to specific intent in terms of murder?
BEVILACQUA: No, because that would be in the affirmative defense that he was trying to protect himself.
WEXLER: Okay. Okay. So let’s go back a minute. The jury said that they, at least the foreman said, the jury said that it was frankly relatively easy for them to not convict on the specific intent. As a prosecutorial decision, do you find as a criminal defense attorney that prosecutors do this a lot? In other words, that they charge something for something that the facts don’t meet more than that the facts do meet? Is this a common thing?
BEVILACQUA: It’s not common per se, but I’ve seen it quite often. I’m going to leave it at that. I’m going to be politically correct. It happens more often than we would like. Sometimes it’s prosecutors using that as a negotiating tool. But in this case, I mean, we have a body and it’s tragic. And they should have narrowed down the charges. I don’t know what the offer was, or even if there was an offer before they went to trial. But this prosecutor was looking for 40 years.
WEXLER: He was. He actually said that the offer was 40 years.
BEVILACQUA: Yes, so that’s ridiculous.
WEXLER: That was ridiculous. You think that’s ridiculous, that was too long?
BEVILACQUA: Yes, ridiculous on the fact pattern. And obviously, you know, my compliments to the defense attorney that he helped to pick a jury that would find that the elements were not met.
Manslaughter vs. Murder
WEXLER: Well, it was 11 to 1 on the lesser charges. Let’s talk about the lesser charges. What do you need to convict for the charge of manslaughter, Frank?
BEVILACQUA: Bear with me. Manslaughter is, manslaughter in the first degree, with intent to cause serious physical injury to another person, causing a death of such person. So obviously, the elements didn’t meet that. That’s manslaughter in the first degree. The element of defense was he was just trying to protect himself. So he’s not trying to cause a death or physical injury. He’s just in an intoxicated state, swinging a knife around. And, you know, it could be more reckless than manslaughter.
WEXLER: It was surprising to me, and I’ll just say this, it was surprising to me, that the jury did not convict on a charge of reckless indifference given the fact that four people were stabbed in this melee, in this frenzy, where only one person had a knife.
BEVILACQUA: Right. Well, there was a lot of people-
WEXLER: At some point when you hit skin and you keep going, do you not, I mean, what does reckless mean?
BEVILACQUA: That’s, that’s, that’s a, I leave that question for the jury.
WEXLER: You leave it for the jury.
BEVILACQUA: In the deliberation room, because each and every person has their own meaning of it. Is it, was it reckless or I don’t know what this jury pool did. Did they put themselves in the position as the young man?
Juror Decision & Defense Tactic
WEXLER: I think they did. I think they were very empathetic to him. It sounds to me, Frank Bevilacqua, criminal defense attorney, that it was a smart decision by Kevin Smith, the defense attorney, to put his client on the stand.
BEVILACQUA: Oh, brilliant. Brilliant. They could backfire immediately, but it was a brilliant decision. But based on his decision to do that, obviously, Kevin Smith is one of the finest defense attorneys out there. I’m going to start with that. He is well thought out of every case I’ve ever witnessed him have. So he is a smart man. He had a team of people working with him. I’m positive because that’s how he works. And if he felt the truth prevailed by having this young man testify and having chosen the jury pool he had. But simultaneously, the prosecutor was in the jury selection too. It wasn’t one-sided. The prosecutor felt the jury pool was for his benefit also. So, you know, you have to know.
WEXLER: Well, I mean, it was 11 to 1. We don’t know who the one is, and it’s irrelevant who the one is.
BEVILACQUA: No, it doesn’t matter at this point.
WEXLER: It doesn’t matter at all. But the fact that it was 11 to 1 would indicate not really a deadlock jury 5 to 7 or something like that. I think it indicates from the prosecutor’s point of view, he probably thinks he’s a pretty good shot at a retrial, getting a conviction.
BEVILACQUA: He could try, you know, that’s their prerogative. I don’t know this boy’s family, the child that passed away, that died. But I, you know, I’ve just been reading the papers there. They have a civil attorney that’s going to be trying to pursue this. I mean, the bottom line is the civil attorney could get a judgment against this young man and the family, his parents, or the property owners, or the host of this party, or the stores that sold the alcohol, so on and so forth. He may go after everyone, but it’s not going to put Valle in jail if he wins a civil judgment.
WEXLER: Right. And it’s a much lesser standard anyway.
BEVILACQUA: Right. Preponderance of the evidence, yeah.
WEXLER: Yeah. Right. It’s preponderance of the evidence. So the question was whether or not the jurors thought that this met the test of whether or not Raul Valle was extremely different to human life. And the jury deadlocked. And they deadlocked not only on James McGrath, which was obviously the fatal injury, but also on three other people who were stabbed. They deadlocked on all of them.
Witness Credibility & Immunity
BEVILACQUA: Right. You know, I did hear some of the testimony of some of the witnesses there. And I don’t really give them much credibility that were for the state.
WEXLER: Tell me why you say that.
BEVILACQUA: You know, the young man that alleged the knife was in his car, every statement he made was self-serving. The young lady that said, I don’t know why he did this. I was standing over in a certain section and I saw something going on. There was a melee. I don’t know if she was consuming alcohol or not consuming alcohol. When you have so many witnesses with so many stories, it poses a problem. Well, which one is the truth? Which angles the truth? Who had a clear vision of what happened? Who was there from the genesis of this confrontation? Who was standing next to Valle when this was going on? Who was watching Valle get beat up and stomped? The poor boy that died, what was his involvement in this? So there was too many parties there. The video that I was able to see online, like everyone else, there was a melee. So you don’t know what’s going on there or who had started it either. Who started the melee?
WEXLER: The jury foreman, Stulman, said there was caught a lot of conflicting testimony about did he ask for the knife? Did he know there was a knife? Did someone just throw the knife to him? And he also said that the immunity deals given to De Silva and Snyder, Snyder was the one driving the car, De Silva was his friend, Raul Valle’s friend, that he jumped out of the car to try and protect. They said that the immunity deals were, quote, a factor but not a significant one that wouldn’t have changed our decision because, quote, he said the jurors, as you’re saying, Frank Bevilacqua, found it hard to credit much of the testimony from witnesses. They didn’t, you’re right. They were looking at, I guess, they were looking at other things that they thought were more reliable indicators of what happened that day. But they also, they listened to everybody, but in the end, it seemed like the jury wasn’t persuaded by any one in particular. Except obviously, they were persuaded in general that Raul Valle did not specifically intend to kill anybody. They were very persuaded of that.
BEVILACQUA: Right. And that comes from his attorney, Kevin, not from any of these witnesses. Because let’s face it, the witnesses were for the prosecution. And whenever you see a witness for the prosecution have some sort of immunity deal, my eyes, they have zero credibility because everything they’re going to say is to help them avoid a trial, a prosecution, a conviction and jail time. So, it’s to me that’s, I consider anyone for the testimony for the state that has a deal is a hired gun. Bottom line, I never give them credit.
WEXLER: Is the jury always entitled to know if a witness is testifying and has received a deal from the prosecutor? Are they entitled to know that?
BEVILACQUA: I don’t know about entitled to know it, but as a defense attorney, I want them to know it. I want them to know it because I want them to listen to their testimony carefully and how self-serving it could be.
WEXLER: Will most judges let that in? Will most judges allow the jury to know it?
BEVILACQUA: They should. Yes, they should. They should let that in. That’s pre-trial motion practice.
WEXLER: I see.
BEVILACQUA: You want that in. I mean, it’s the same with, you know, do you give, when you’re voideering the jury pool, well, do you, will you give the testimony of someone from law enforcement any more credits than a lay person? And why is that?
WEXLER: I see.
BEVILACQUA: So then, you know, oh, so then you consider law enforcement incapable of not seeing what actually happened or their testimony not being exactly right or their testimony embellished to benefit the state. Then who would want that juror? Because they’re giving them better, more credit than a lay person. Same difference with, in my eyes, a witness for the state that has immunity. You’re going to give them more credit? Because now, whatever they say, they can’t, it’s not going to be held against them. And they’re not, they were part of this melee, but, well, because they’re testifying on my behalf, they were a lesser person to the melee, so we don’t want them, we want whoever had the knife in their hands, so we’ll take your testimony. You know, this is a bright jury pool. It was good, it was good, and it was, listen, no parent wants to know their child died in vain, and no one’s held accountable for it, and my heart goes out to the family of the poor boy that died, it’s sad, but my heart also goes out to any person that has to spend the next 30, 40 years in jail under an offense and charge that didn’t fit the allegations. That’s even worse.
WEXLER: Frank Bevilacqua, criminal defense attorney, associated as part of the Criminal Defense Bar Public Defender’s Office, longtime private practitioner in this space with his thoughts on the Raul Valle case, 203-333-9422. Frank, when you heard the jury verdict, having followed this, were you surprised by the jury verdict, yourself personally surprised?
BEVILACQUA: I’ve never not been surprised by a verdict. Guilt or innocence, it always blows me away. I’m always, I’m always taken back.
WEXLER: You have such respect for the process, huh?
BEVILACQUA: Right, exactly. Yeah. I never know what’s going to happen.
WEXLER: Yeah, yeah.
BEVILACQUA: You do your best, you pick your best jury, you can. You prepare, prepare, prepare, prepare. You make the best closing argument you possibly can, and you sit back and you leave it for the jury, because when they go in that room, there’s nothing else you could do.
WEXLER: We don’t have 12-person jurors for most of our trials, Frank. We have them pretty rarely.
BEVILACQUA: I know. We have them only for murder trials.
WEXLER: So my question is, if this is a retrial on lesser charges, but still manslaughter or reckless indifference to life, will that be a 12-person jury or will it be a 6-person jury?
BEVILACQUA: No, 12-person.
WEXLER: It will be 12. Okay. Okay. So even though it’s not the specific intent top charge, it’ll still be a 12-person jury. Okay. And did you ever start yourself in your career, Frank, as a prosecutor? Were you ever a prosecutor?
BEVILACQUA: No. I had an opportunity to do that when I was starting out in New York, but I chose not to.
WEXLER: You’ve always thought that criminal defense is where your heart is?
BEVILACQUA: Exactly. I mean, everybody talks about defending the Constitution, but we do. Our job is to defend the Constitution and the rights of citizens, you know. There are times when punishment or, I’m going to say, accountability for your actions should be found, but you can’t do it with a bazooka when a pea shooter will suffice.
WEXLER: I’m sure you get asked this all the time. How can you defend these people that do such terrible things?
Oh my goodness, Lisa, it’s, you know what? I defend the Constitution first. And every citizen’s right.
When I defend a client, I’m defending them because I’m defending you and the public at large. That’s number one. And then you get to meet some of these individuals that are charged with offenses and some of them, you know, they have some sad background stories. Who? Drug abuse, no family, left in an orphanage, left on the street, started drugs because when their dad got out of jail, he turned them on to drugs. They were hungry. They just, they found no way out. They have zero religious convictions. So I come across some very sad individuals. And mental illness is rampant.
WEXLER: It’s a big component.
BEVILACQUA: Huge, huge. And they just don’t know any better, or, and primary problem is lack of education and lack of self-respect and lack of the will to succeed and role models that in their life that are the worst possible role models you could find, which is sad.
WEXLER: Well, to me, that explains a lot of nonviolent crime and a lot of sort of accidentally happenstance where you end up in a situation where you’re not handling it right. It doesn’t explain to me the crimes of, the violent crimes of sexual assault, things like that.
BEVILACQUA: Well, then that goes to mental illness, because a lot of the people that…
WEXLER: That’s true.
BEVILACQUA: A lot of the individuals that perform sexual acts and sexual assaults, you dig deep enough, they were victims of it at one time or another, male or female. So it’s a sad situation. Very sad. It’s heartbreaking.
WEXLER: But you would rather be, every single day, when you get up in the morning, Frank Bevilacqua, you would rather be defending the rights of these people and of the Constitution than prosecuting them.
BEVILACQUA: Right, because I’d rather be… I’m zealous. We know each other for years. And if I’m going to be doing my job, I’d rather be getting somebody that may or may not be guilty of a crime off than putting someone that shouldn’t be in jail in jail. I couldn’t live with myself if I did that. I would feel terrible if I put somebody in jail that shouldn’t be in jail. And I see, you know, I go to a lot of conferences and I speak with a lot of inmates, you know, that may have been in jail for decades. And, you know, the DNA evidence comes finally out and, oh, they weren’t, that wasn’t him. He didn’t do it. He couldn’t have been there. And to know they spent maybe 10, 20, 30 years in jail on something they didn’t do, how sad.
Reflection on Justice
WEXLER: We have so much injustice in this world. That’s one kind of injustice which is horrific. And I remember there was a movie many years ago called The Wrong Man made with Frank, Hank Fonda, Henry Fonda, and he played a guy who looked like the guy who really had done the crime. And the movie, which was a brilliant black and white, was all about how they picked him out of a line up and how the process, and he was sort of a near, you know, he was sort of a guy who didn’t have any resources to defend him, nobody to really speak up on his behalf, but he hadn’t done it. And they just kept prosecuting the wrong man. And you’re watching the nightmare scenario when Hollywood used to make good movies. And your empathy is completely with this wrong man. And you’re hoping against hope that he’s not going to end up in jail. And at the very last, like minute of the reel of the movie, they find the guy that really did it. But in real life, it doesn’t always work out that way. At the same time, I don’t know if you saw the New York Times last week published a study, not that they had done, but someone else had done, that showed that 50% of murderers in America go unprosecuted, unsolved. One out of two. So if you actually kill somebody, intentionally, your chance of getting away with it is a shocking 50%, shocking. So it goes both ways.
BEVILACQUA: It does. It does.
WEXLER: And I don’t know where that leaves us in terms of trying to find justice in the world. Maybe justice isn’t in the criminal court system. Maybe it’s a karmic spiritual thing, and people do end up paying in a different way, not necessarily with jail, for things that they do against other people. Maybe there’s another way that they get their so-called just rewards. I don’t know. But the criminal justice system usually isn’t the way.
BEVILACQUA: No, it’s not. It’s a flawed system all the way around. But it’s the only system we have at this point.
WEXLER: Tom from Fairfield, welcome to the show. We’re chatting with Frank Bevilacqua, who was a local criminal defense attorney. The general subject has been the Raul Valle case. I invite your comments and thoughts or questions. Go ahead, please.
TOM: Oh, that’s fantastic to both of you. This is very entertaining radio, I bet. The question I have for Bevilacqua and yourself, one of the jurors that I found interesting in his Kinnicka Post when he had the interview on TV, said that we went back and forth, but we didn’t see that intent to kill. I mean, when I saw Bevilacqua, the gentleman talking about counting the ribs and where to exactly stick the knife. How many murderers or people on trial for murder have you ever had that said, well, the jurors said later, well, it didn’t count to where exactly where the knife would have went to Pierce’s heart. When somebody is doing that and the knife is playing around, you think they are actually going to watch which one is going to be a serious kill and which one is going to be injured? I found that either they are too astute or they are not logical. They are not an educated jury. I don’t know. How do you find that?
BEVILACQUA: Well, first and foremost, my murder trials didn’t involve knives. They all involved guns. I can’t answer that.
At the juror, you know, when somebody is swinging a knife around, they are swinging a knife around. I don’t know anybody, you know, a perfect shot. It’s like what I call cutting a diamond. You need that perfect shot to cut the diamond, and that’s what happened there. There is no, you can’t measure. I’m not going to use the term lucky. It’s just it was just the perfect shot.
WEXLER: It was unlucky. It was terrible. It was one fatal thing in the heart. It was horrible. It’s unlucky. Oh, awful.
BEVILACQUA: No, it’s awful what happened to this poor family and this poor boy that’s gone.
WEXLER: But I know what Tom is saying. But I know, you know what, Tom? I know what you’re saying, because I read that, and it looked like the jury felt that their interpretation of the instruction by the judge, which we call the charge, was that they had to find that Raul Valle intended to specifically aim his knife in such a way as to kill and pierce the heart of James McGrath in order to find him guilty of murder. I hear what you’re saying, Tom, that seemed awfully specific to me, too. So, Frank Bevilacqua, do you have any thoughts on, generally speaking, what does specific intent mean? That’s what Tom is getting at.
BEVILACQUA: Elements. Tom, you and I are having an argument, hypothetically. I’m working in my yard, I’m chopping weeds with my machete, and I charge at you with that machete after the argument, straight for your heart. That’s specific intent. I want to drive that machete right into your heart.
WEXLER: I see. Okay.
BEVILACQUA: And that’s specific intent.
TOM: And this, yeah, in this case, Raul went back to the car and asked for the knife. He was giving the knife to a fistfight.
BEVILACQUA: Well, it was that, that portion is disputed.
WEXLER: Yeah, that’s the thing, Tom. There was a lot of dispute about that.
BEVILACQUA: And you have to keep in mind, the person that said that’s what he did was the person that got immunity.
TOM: Right, right.
BEVILACQUA: So you have to be weary of every individual that gets immunity on a trial such as this.
TOM: Yeah, I don’t want to say an eye for an eye, that kind of thing. But one man, one young man is dead, and one young man, I mean, I don’t think he’s going to go free. I defer to your expertise. I mean, the lower… The lower charge that they were dead last time, they’ve got to- they can’t just settle for civil, can they? Are they going to go back and go for…
WEXLER: They are going to go back. They’re going to try and impanel a different jury. They’re going to try and present the facts maybe slightly differently, and they’re going to try, and maybe they’ll have a different prosecutor. Frank Bevilacqua, is it definite that it would be the same prosecutor? Who makes the decision about that?
BEVILACQUA: Well, the office supervisor, but I can’t see why they would pick a different prosecutor.
WEXLER: Okay, okay. So the prosecutor will give it a second shot. He’ll give it another try. I’m sure that there’s a lot of pressure from the family and the community to try and convict this boy of something with respect to what happened. It doesn’t mean it’ll happen, but I think they’re going to try again.
BEVILACQUA: They probably will, and he’s a smart prosecutor. There’s no denying it. It’s just, I don’t know, it just shouldn’t have been to this extent. It shouldn’t have been to this extent.
WEXLER: Frank Bevilacqua, thank you so much for joining us.