Just before 11:30 this morning in the No. 2 Supreme Court, Justice John “Troadio” Gonzalez ruled that Police Constable Richard Polonio, 24, accused of the August 2008 shooting death of construction worker Carmen Alexander Herrera, 49, had no case to answer.
The judge subsequently directed the foreman of a jury of five men and seven women to find the officer not guilty of Herrera’s murder, after upholding a no-case submission made by attorney Richard “Dickie” Bradley, who contended that the prosecution had not proved beyond a reasonable doubt that his client was the one who shot Herrera dead.
Alexander was shot a total of five times, once in the head and four in the back, allegedly as he swam in Haulover Creek in a futile attempt to flee from law enforcement officers pursuing him from the southside of the Swing Bridge on August 3, 2008.
The death was controversial from the start, because police claimed that Herrera was holding a gun in his hand as he fled, a story that family members and witnesses to the incident fervently denied.
Herrera was retrieved from the creek and placed on life support on arrival at the Karl Heusner Memorial Hospital (KHMH); he died the next day, Monday.
The trial began last Friday before Justice Gonzalez, with the Crown’s case presented by prosecutor Yohhanseh Cave, while Polonio was defended by.
The bulk of the prosecution’s case rested on a cadre of police officers senior to Polonio and witness Joseph Garbutt, a co-worker of Herrera who was drinking with him and another man that fateful August night.
According to Garbutt, Herrera suddenly spied police on patrol and hastily excused himself, believing that police might have harassed him over a small amount of marijuana he allegedly had in his possession. Herrera sprinted toward the creek, but then “a loud bang” sounded and by the time he made it to the middle of the creek, he had been shot multiple times. Shots had previously been fired in the area from various responding policemen.
Garbutt told Amandala at the time – and repeated it in his testimony – that he spied an individual in black clothing kneeling on the opposite (North Front Street) side of the creek, pointing a long object toward the creek. At the time he was on Regent Street West.
The weapon suspected to have been used in the incident, a Mossberg pump-action shotgun with serial number J386132, was tendered as evidence, but Bradley was able to create some doubt that it was the same gun issued to Polonio, while questioning Albert Ciego, former Police Department armorer, on the stand on Friday.
None of the witnesses called by the prosecution during the entire case identified Polonio directly as being at the scene, though it was confirmed by Inspector Michael Casey of Patrol Branch, the on-duty executive officer that night, that Polonio was indeed one of three officers responding to the scene in a mobile unit at his command after he heard gunshots from his office at Queen Street Police Station and saw two police vehicles going against the flow of traffic on Queen Street toward the scene, and saw persons gathered there.
Insp. Casey later went to the scene himself and ordered a sergeant who was tending to a male Hispanic bleeding from the head (later identified as Herrera) to take him to the hospital. The Inspector claimed he got a call from the KHMH reporting that Herrera was dead at about twenty minutes after midnight (in fact, he had died the following day), and then called all on-duty Patrol Branch officers to his office.
It is alleged that in that meeting, Polonio told Casey he had “fired a shot,” but did not say under what circumstances. Polonio had been issued a 12-gauge shotgun from the arsenal with five cartridges, and later returned it with four unused cartridges. Medical evidence from Dr. Mario Estradabran, pathologist, confirmed that Herrera had died of pellet wounds to the head consistent with a shotgun.
In making his no-case submission, Bradley also contended that there was no attempt to establish whether Polonio was the only officer issued with a shotgun that night; other officers identified to Amandala and who responded to the scene carried a 9mm pistol, .38 revolver and sub-machine gun, and attending Scenes of Crime Technician Audrey Cleland testified that she recovered 9mm shells from the scene. Bradley concluded that the jury would be forced to infer to the point of speculation on the events of August 3, which would likely swing the tide against his client.
Today, Justice Gonzalez concurred, stating that had the prosecution established in its case how exactly the person “in black clothing” was dressed, or any of the other elements described above, there might have been enough of the case proven to go to the jury. While the evidence of the prosecution was indeed circumstantial, in Justice Gonzalez’s view it was not “of the type and quality that would direct the jury to conclude beyond a reasonable doubt that it was the accused who fired the shot that killed Herrera.”
With that the jury was called back in and the foreman, at the request of the judge, rendered the not-guilty verdict. Polonio showed little emotion as he was declared free to go, and declined comment to media houses present, including Amandala.
With Polonio’s acquittal, nonetheless, comes the sad realization that Alexander Herrera is dead, and that the shooter, whoever he is, will go unpunished.