Attorney seeks new trial in stop-and-frisk case

AN ATTORNEY for a man who sued two cops over a 2013 stop-and-frisk filed a motion in federal court yesterday seeking a new trial based in part on jurors' confusion over the verdict sheet.

Paul Messing, attorney for plaintiff Herbert Spellman, 51, contended in a memorandum that U.S. District Judge Stewart Dalzell had a duty to explain to the jury that its verdict sheet "contained contradictory responses, and to further instruct or provide guidance to the jury on its options." By not doing so "was error," he wrote.

Messing also attached a signed "declaration" by one juror, which said all seven jurors unanimously agreed that the two cops, David O'Connor, 31, and Brad Momme, 29, who stopped and frisked Spellman, violated his rights.

The Daily News found a phone number yesterday for that juror, a Chester County man, 63, in a public database and called him.

The man, who asked that his name not be published, told the Daily News: "The verdict that we recorded wasn't the verdict that the jury intended. So the will of the jury was not held forth."

The jury, on its March 18 verdict sheet, answered "No" to questions asking if the officers seized, searched and detained Spellman "in violation of the Fourth Amendment causing harm" to him and if the cops "used unreasonable force" against Spellman "in violation of the Fourth Amendment causing harm" to him.

The Chester County juror said the "causing harm" part of the questions "was what threw us."

The jury did not think there was sufficient evidence showing the cops caused Spellman any physical injuries, the juror said.

"But, we did think there was sufficient evidence [that the cops] didn't have just cause to stop Spellman," he said.

On the jury questionnaire, jurors were instructed not to proceed to further questions if they answered "No" to the first two questions, which they had done.

But the jury did answer further questions. The male juror said the instructions were not clear.

The panel answered "Yes" to a further question asking if the cops "acted maliciously or wantonly in violating" Spellman's "federally protected rights." It then imposed $10,000 in punitive damages against each cop.

The juror said the panel believed the cops' actions were "wanton more than malicious."

Chief Deputy City Solicitor Craig Straw of the city Law Department, which represented the two cops at the trial, said "we will be filing a response in opposition to the motion."

It was 7:30 p.m. Sept. 10, 2013, and Spellman was walking on Wister Street near 65th Avenue, on the border of East Germantown and West Oak Lane, when the cops got out of a patrol car and stopped him. Spellman testified at the trial that he had just left his son's school orientation and was trying to find a bus to get home because his wife was locked out.

The cops contended they saw Spellman walk toward a man they knew as a drug dealer, and after the dealer saw the cops' car and made a hand motion, that Spellman walked the other way. They contended they thought Spellman was about to engage in a drug deal.

Messing said contrary to the cops' accounts, Spellman did not approach anyone on Wister, then walk the other way.

The Chester County juror said there were two "definitely conflicting" stories presented at the trial. He said jurors found Spellman's account "more credible."