PROVIDENCE ‚ÄĒ Minutes after prosecuting and defense attorneys had issued their closing remarks regarding suspended Lincoln Patrolman Edward M. Krawetz' trial Wednesday morning, Superior Court Justice Edward C. Clifton informed those in Courtroom 7 he would issue a ruling on Monday, Jan. 23.
Clifton asked both Assistant Attorney General and prosecutor Stephen Regine and defense lawyer John Harwood if they could re-schedule from the previously-set date of Jan. 17, and both indicated they would.
Krawetz had been on trial since last week for felony assault with a dangerous weapon. Surveillance video at Twin River exhibited Krawetz delivering a kick to the head of a seated, handcuffed woman ‚ÄĒ Donna Levesque, 44, of Uxbridge ‚ÄĒ the evening of May 31, 2009.
Levesque had been arrested for disorderly conduct inside the former Fado's Irish Pub on the casino's second floor.
After Krawetz and fellow officer Russell Enos had escorted her outside an employees' entrance and before the kick, video showed Levesque had kicked the officer. Krawetz testified it had struck him in the shin.
‚ÄúLet's put it this way: I'm cautiously optimistic,‚ÄĚ Harwood offered as to how the judge may rule. ‚ÄúI thought the factual history of this incident shows this man was attacked, which everyone agrees with.
‚ÄúThe defendant reacted within a tenth of a second after being kicked, which is ‚Äď in fact ‚Äď human nature when someone's hit,‚ÄĚ he added.
Before closing remarks, Harwood requested the case be dismissed because he felt the prosecution didn't provide enough evidence ‚Äúbeyond a reasonable doubt‚ÄĚ to move forward. Clifton, however, denied the motion.
Regine argued that Krawetz' kick was ‚Äúretaliatory,‚ÄĚ and had packed a force ‚Äúto knock this woman to the ground.‚ÄĚ
Harwood, who spoke first, explained Krawetz, 47, had spent 20 years as a police officer, the last 12 in Lincoln, and experienced ‚Äúa very distinguished career.
‚ÄúIn this case, this is a gentleman being assaulted ‚Ä¶ and he reacted in a split second,‚ÄĚ Harwood said. ‚ÄúI think it's important that we look at ‚Ä¶ him being attacked, not attacking. With the witnesses, we get a pretty good idea of what went down.‚ÄĚ
Harwood went on to say that Security Capt. Joseph Gleckman's testimony and video tapes showed Levesque had slapped or punched a male at the pub at least three times; and that Gleckman had stated she was highly intoxicated and needed a ride home.
‚ÄúCapt. Gleckman continued to describe the condition of this woman; he said she was not cooperative ‚Ä¶ (and) Officer Enos confirmed what Capt. Gleckman said, that Miss Levesque was 'angry, belligerent and intoxicated,'‚ÄĚ Harwood said. ‚ÄúShe in fact had to be handcuffed because of her behavior, another indication the woman clearly was in violation of the laws of this state.
‚ÄúAfter the kick, within a couple of seconds, (Krawetz) said, ‚ÄúDon't kick me. Get away from me,'‚ÄĚ he continued. ‚ÄúThat showed the lack of intent. That's very important, the fact he said, 'Don't kick me. Get away from me.' He didn't say, 'I'm going to hit you. I've had enough of your baloney.'‚ÄĚ
Harwood argued that even the testimony of State Police Sgt. Daniel C. Cusumano, Regine's use of force expert who had called the kick ‚Äúexcessive,‚ÄĚ had ‚Äúenlightened us with his point of view.
‚ÄúHe admitted that Miss Levesque did in fact pose a threat ‚Ä¶ and attacked the defendant,‚ÄĚ he stated. ‚ÄúHe also said that the defendant's kick occurred within a tenth of a second ‚Ä¶ I don't know how anyone, in a tenth of a second, shows intent.
‚ÄúSelf-defense comes into play here, that's common sense,‚ÄĚ he added. ‚ÄúThe sergeant admitted that police officers have no duty to retreat, they have to make split-second decisions. He said you must place yourself in the shoes of the officer.‚ÄĚ
The defense pointed to a 1989 case, Graham v. Connor, which explains how use of force comes into play.
‚ÄúCan someone in handcuffs cause harm? The video showed her legs were not immobilized,‚ÄĚ Harwood argued, then moved to defense use of force expert Dr. Frank Gallo's testimony.
‚ÄúHe said the force was objectively reasonable and that his use of force was reactionary ‚Ä¶ and that it was a performance error,‚ÄĚ he continued, addressing Krawetz' claim that he believed to have kicked the woman in the left arm/back area. ‚ÄúThere was no second kick, no second punch.
‚ÄúHe said, 'Get away from me' ‚Ä¶ and did so in order to protect himself.‚ÄĚ
In his remarks, Regine explained he knew the ‚Äúvictim‚ÄĚ was intoxicated and swearing at the officers representing both Lincoln police and security personnel, but he believed this to be a case of a ‚Äúgeneral intent crime.
‚ÄúThe state submits this is a case of evidence, not a case of what one's heart thinks,‚ÄĚ he insisted. ‚ÄúWe had six witnesses testify, four for the state and two for the defense. We have heard a picture speaks a thousand words. In this case, five words. (Security video is designed to) 'Catch criminals in the act.' That's what the defendant says.‚ÄĚ
Regine called up on a monitor State Exhibit 6, photograph 21, which shows Krawetz look behind him and up toward a camera after he kicked Levesque.
‚ÄúThat video says he made an unlawful attempt ‚Ä¶ with force,‚ÄĚ he said. ‚ÄúIn the end, that kick was nothing but forceful, and hard enough to knock this woman to the ground. He said his intent was to push her away from him, (but) he made a conscious decision to use force. It was malice and wantonness.
‚ÄúThis case is about reaction and retaliation,‚ÄĚ he continued. ‚ÄúHe had sufficient time to react. He said he lifted his leg to block her (kick) ‚Ä¶ There's no doubt he reacted.‚ÄĚ
The defense maintained all humans have the opportunity to react and defend themselves when struck, and Krawetz had put his foot to the curb after blocking Levesque's sweeping kick with her right leg. A fraction of a second later, his ‚Äúsnap kick‚ÄĚ knocked the woman onto her right side.
‚ÄúThat's where the crime comes in,‚ÄĚ he stated. ‚ÄúHe was annoyed (at being sworn at and her being uncooperative) ‚Ä¶ but this is his job. That's what they do. It's a tough job, and Miss Levesque wasn't pleasant. There's no doubt as an officer he had a right to arrest her, (but) you can't consider one instant.
‚ÄúFor two minutes and 45 seconds before the kick, he stood there; he had no problem with it,‚ÄĚ he added. ‚ÄúCounsel is trying to say Miss Levesque posed a threat, (but) the defendant stood within a foot of (her) ‚Ä¶ and placed his firearm close to Miss Levesque. He did this in the presence of three or four law enforcement officers (who weren't as close as Krawetz). The defendant is trying to hide behind the crime, indicating he used self-defense.‚ÄĚ
In addition, Regine spoke of the kick, which Krawetz had called a ‚Äúsnap kick‚ÄĚ or, in martial arts terms, ‚Äúa roundhouse.‚ÄĚ He indicated that Krawetz himself said he had taken three months of tae kwon do instruction in 1984.
‚ÄúAt 18:44 (or 6:44 p.m.), he placed her under arrest; he now has been with her for five minutes (actually, about two and a half, as Krawetz and Enos responded to the pub at 6:42), and he had the opportunity to perceive her ‚Ä¶ 'what kind of prisoner I have in my custody.' The other officers abided by the reactionary gap (a four- to six-foot space police use to create space between them and an arrestee).
‚ÄúHe reacted and retaliated.‚ÄĚ
Regine also addressed the differences in testimonies between Cusumano, who called Krawetz' action ‚Äúexcessive,‚ÄĚ and Gallo, who claimed it was ‚Äúobjectively reasonable.
‚ÄúIn the end, when it's expert vs. expert, Cusumano carries the day because he was credible,‚ÄĚ he said. ‚ÄúNot once did the state have to admonish its witnesses.‚ÄĚ He then labeled Gallo's testimony as one-sided and self-serving, and indicated he felt Krawetz and Gallo's statements were inconsistent.
‚Äú(Krawetz) couldn't even admit, 'You know, I did hit her in the head,‚ÄĚ he insisted. ‚ÄúI asked him, 'What part of the foot hit her in the head?' and he said, 'I recall it was the instep' ‚Ä¶ then he tried to confuse the court. He said it was a decision to create space.
‚ÄúIn this case, there's no doubt (that) if he acted in self-defense, he wouldn't have stepped closer (to Levesque),‚ÄĚ he added. ‚ÄúI'd ask the court to conclude the evidence is sufficient, and that he ultimately did commit a battery against Donna Levesque.‚ÄĚ
Once court dismissed, Krawetz greeted his wife and family members in attendance. Now his fate lies in Clifton's decision.