Special Report: A Black man risks all to clear his name - and expose the police

[November 17, 2020]  By Reade Levinson and Lisa Girion

ROCHESTER, New York (Reuters) - In a courthouse holding cell, Silvon Simmons changed from a jail jumpsuit into dress pants, a shirt and a tie. As a kid, he imagined becoming a police officer. Now a 36-year-old father, Simmons was preparing to stand trial in October 2017, facing life in prison for allegedly trying to kill a cop.

The officer, Joseph Ferrigno, had shot Simmons three times from behind. Ferrigno, a Rochester Police patrolman, insisted that Simmons had fired first. The cop reported finding a 9mm Ruger pistol a few feet from where Simmons lay bleeding.

The Rochester Police Department and the police union backed up Ferrigno. One of his most outspoken supporters: the union’s boss, Locust Club President Michael Mazzeo. He said he never doubted Ferrigno’s account of what happened the night of April 1, 2016.

“That officer got shot at, and he returned fire,” Mazzeo said.

A police official said Ferrigno and other officers involved in the case are prohibited from speaking publicly. But even before testimony began in the Simmons trial, their narrative of that night emerged in police reports reviewed by Reuters. It begins the moment Ferrigno spotted a Chevrolet Impala and followed it to the driveway next to Simmons’ house.

Cops had been searching for an armed Black man driving an Impala. Simmons was a passenger in an Impala driven by his neighbor; both are Black. Neither, however, was the man police were seeking.

Simmons’ DNA wasn’t found on the weapon. His prints weren't on the gun. Cops never tested him for gunpowder residue. And there were no eyewitnesses and no videotape; police patrolling that part of town wouldn’t start wearing body cameras until months later.

As he lay bleeding in his own backyard, Simmons recalled, a thought crossed his mind: If he were to die then and there, “people will never know the truth.”

What he feared seemed to be happening. Ferrigno’s version of the encounter took hold. Detectives on the case, all fellow members of the Locust Club union, dismissed Simmons’ account of that night. “No one would listen,” he recalled. “There was just one story.”

The prosecution’s case relied heavily on Ferrigno. If the jury believed him, Simmons could spend the rest of his life behind bars. He had rejected a deal to plead guilty and serve 15 years on a gun possession charge: “a huge gamble,” as public defender Elizabeth Riley put it. But Simmons wanted his life back – the boys he was raising with his girlfriend, his job and a chance to prove his innocence.

By going to trial, Riley said, the Rochester Police Department was compelled to turn over records that “would not have come to light” had Simmons pleaded guilty. Those documents show the extraordinary immunity police officers enjoy from outside scrutiny, a position enjoyed by law enforcement officers across the United States.

Reuters reviewed thousands of pages of trial transcripts, police records and other evidence submitted in People v. Simmons. The documents reveal that Ferrigno, a white officer with almost nine years’ experience, made a series of choices that run counter to widely accepted police practices. Some of those decisions, experts in police tactics told Reuters, set the stage for Ferrigno’s bloody encounter with Simmons. Other decisions likely escalated the encounter, imperiling both men’s lives.

The records also indicate that shortcuts and missteps by detectives hindered the department’s criminal and internal investigations of the shooting and may have blinded the force to flaws in the case against Simmons. The documents show the defining role that the Locust Club’s contract and union members played in the investigations. And they highlight the challenge Simmons faced when he went to trial with two public defenders battling a labor brotherhood.

“Police can shoot first and then hide behind their union and cover it up,” Simmons, who earned $17.50 an hour when he was shot, told Reuters. “All across the country, the unions stand behind the police. They hire lawyers that can beat the system. The average person they arrest doesn’t have the money to do all that.”

In America, the cops police themselves. It’s a tradition that activists in Rochester and elsewhere have been trying to change for decades.

CULTURE OF “CALLOUSNESS”

Rochester police officials declined to discuss details of the shooting or the investigation. But in a statement to Reuters, the department said interim Chief Cynthia Herriott-Sullivan would make any policy changes necessary to ensure use of force by officers is appropriate and investigated properly. “She looks forward to involving the community in this effort,” the statement said.

In the past, however, efforts to give residents more say over police conduct lost steam or were beaten back by the Locust Club, one of the oldest police unions in America. The union has used state collective bargaining laws to cement protections for officers. This year, it persuaded a judge to block the city’s powerful new civilian oversight board from compelling officer testimony and from disciplining cops for misconduct.

The Locust Club’s power is not unique, a nationwide Reuters analysis of police union contracts, court decisions and labor board rulings found. Labor laws, employment contracts and court rulings prevent changes in the way police are investigated and disciplined without first winning union approval, Reuters found. In some cases, even changes in operational tactics are subject to labor’s consent.

Like many American cities, Rochester is again confronting questions over the conduct of its police. In March, Daniel Prude, a Black man, died in police custody. A months-long delay in releasing video of Prude’s arrest fueled charges of a cover-up and led to the resignation of the police chief. The attorney general of New York, Letitia James, has empanelled a grand jury to consider whether the officers in the case should be criminally charged.

A September report from the city’s deputy mayor about the police handling of the Prude case identified some of the same issues that Simmons faced and referred to “a culture of insularity, acceptance, and quite frankly, callousness that permeates the Rochester Police Department.”

Frank and Sharlene Simmons say they had similar concerns in the months leading up to their son’s trial. They joined Enough is Enough, a Rochester support group for people harmed in police encounters. The group was formed in the wake of another violent incident that involved Officer Ferrigno: the 2013 arrest of Benny Warr, a one-legged man whom officers roughed up and dumped from his wheelchair at a bus stop.

On the night Simmons was shot in 2016, Rochester cops swarmed the neighborhood, searching for witnesses and for the bullet that Ferrigno said Simmons had fired. When officers with dogs got to a white frame house a half block north of where Simmons was shot, they surrounded a van in a driveway. By coincidence, sitting inside the van was the disabled Warr, listening to the radio with his grandson.

Warr, 60, had been terrified of cops since the 2013 incident, said his wife, Nina. He suffered back and neck injuries in the encounter, and doctors told him he would never walk with a prosthesis again, she said.

The morning after police surrounded his van, Warr heard a news report: The officer who’d shot the man a few houses away was Ferrigno, one of the cops who had roughed up Warr.

The Rochester Police Department cleared the officers of using excessive force against Warr, and a federal jury absolved Ferrigno of liability last year after the Warrs sued. Benny Warr never got over what happened, his wife said. He was so distraught after learning Ferrigno had shot a man on his street that she took him to the hospital for psychiatric care.

Then she set out to find the family of the man Ferrigno shot. She said she wanted them to know what Ferrigno and the other officers had done to her husband.

Warr introduced herself to Simmons’ parents at an Enough is Enough meeting and referred them to her lawyer. The attorney, Charles Burkwit, had gathered evidence of almost two dozen misconduct complaints against Ferrigno, some alleging excessive force.

The Simmonses said they were troubled: Why had police allowed an officer with Ferrigno’s complicated history to patrol Rochester’s Lake Section? In a city with a violent crime rate twice the national average, the Lake area in 2016 had a higher number of murders, robberies and aggravated assaults than all but one other section.

Reuters was unable to review the complaints against Ferrigno because they are not public. Union leader Mazzeo said he hadn’t reviewed Ferrigno’s record either but characterized him as a “proactive” officer who was valued by his peers and by law-abiding residents in the “very, very difficult area” he patrolled.

“The reality is, the officers who work the hardest areas … and are doing their jobs out there are going to have complaints against them,” Mazzeo said.

"ALL SET”

Nearly five months passed before internal investigators questioned Ferrigno to examine whether his actions violated department policies. On August 23, 2016, two sergeants from the department’s Professional Standards Section, which reviews officer conduct, interviewed Ferrigno. Both sergeants were fellow Locust Club members. The session lasted about 50 minutes.

The Locust Club contract gives officers the right to have a union representative present during questioning and requires that interviews take place “at a reasonable hour” during daylight. Officers are entitled to all past reports they’ve submitted on an incident; details of the nature of the investigation; and the names and ranks of all involved – information almost never provided to other potential subjects of police scrutiny.

Almost all large cities that have signed contracts with police unions since 2016 afford officers one or more similar rights, Reuters found.

Ferrigno told the investigators that after roll call the night of the shooting, he talked to Officer Sam Giancursio about a report Giancursio had taken a few days earlier: A woman reported being threatened by a Black man with a gun. The investigators asked Ferrigno what information he had on the suspect’s car. It was, he replied, “like a silver grayish Chevy Impala.”

Ferrigno told them he later spotted a silver Impala and followed it a few blocks until the driver backed into a residential driveway.

He said he pulled in front of the driveway with his cruiser and turned its spotlight on the Impala. “Based on what I already knew, wanted guy, gun in the vehicle, I drew my weapon and I commanded both occupants to stay in the vehicle, stay in the car, as I'm walking up to the car,” Ferrigno said.

Simmons, who was in the passenger seat of his neighbor’s car, told Reuters he heard no such command and was blinded by the light. Unaware that the gun-wielding man charging toward him was a cop, he ran, hoping to get inside his house, he said.

Ferrigno told the sergeants that he chased Simmons toward the backyard, saw a flash and heard a bang that he believed was gunfire. He responded with four shots. Three hit Simmons.

Almost all of the sergeants’ questions focused on this final exchange – the last few seconds of an encounter that had begun several minutes earlier.

“Why didn't you need to fire more than four times?” Sergeant Hoang Kavanaugh asked.

“I felt that that was reasonable to stop the threat at that time,” Ferrigno replied.

Later, Kavanaugh asked: “Just once again, who shot first?”

“He shot first,” Ferrigno said.

Kavanaugh followed up: “You're allowed to defend yourself, correct?”

“Correct.”

“I'm all set,” Kavanaugh concluded.

Part of the inquiry consisted of Ferrigno identifying 16 crime scene photographs. The transcript shows most of the questions were more elementary than probing.

“And, again, rather slowly because I realize that this is going to bring some emotions. So start off with picture No. 1,” Sergeant Michael Cotsworth instructed.

“Picture No. 1 is the suspect laying on his back in the dark backyard,” Ferrigno replied.

Silvon Simmons points to a driveway where he was shot by police, during an interview with Reuters, in Rochester, New York, U.S. September 17, 2020. REUTERS/Lindsay DeDario

“And in that picture,” Cotsworth asked, “is he laying face down or face up?”

“Face up,” Ferrigno answered.

Mazzeo, the union chief, said some of the questions that sound basic may be the investigators “clarifying” their understanding of the officer’s account.

The internal investigators “do a good job,” he said. “They’re in a difficult situation. They're doing a job that has to be done, and it has to be done correctly in order for the integrity of our department.”

"IT DOESN'T LOOK GOOD”

Police who investigate their own are hindered by basic human nature, inherent conflicts of interest and, in many cities, far-reaching union contracts, policing experts say.

“I don't care who you are, it's a natural human reaction to give a coworker the benefit of the doubt,” said Robert J. Duffy, a former beat cop who rose through the ranks to serve as chief of the Rochester Police Department from 1998 to 2005.

Even when investigations are done well and police are in the right, “the optics alone are problematic,” said Duffy, who later served as Rochester’s mayor and New York’s lieutenant governor. “From the outside, it doesn’t look good.”

Several experts in police tactics told Reuters that by focusing on the climax of the encounter that night, the gunfire, Ferrigno’s examiners failed to explore a series of red flags that his account should have raised:

Why hadn’t Ferrigno or Giancursio alerted dispatch they were trailing a possible gunman? Why had they limited their communications with each other to a private radio channel that isn’t recorded? Why hadn’t either officer run a check of the Impala’s plates? And why did Ferrigno chase the passenger when he believed that the wanted gunman was the driver?

Each of those decisions was a missed opportunity to avoid the night’s bloody ending, said Marq Claxton, a retired New York Police Department detective who runs the Black Law Enforcement Alliance, a group that advocates for civil rights.

“The jeopardy was officer-created,” Claxton said. “The deadly force was inevitable. Why? Because he set the wheels in motion.”

Another critical error by Ferrigno: pulling across the driveway, opening his door in front of the Impala and stepping into an unprotected field of fire. Cops are typically trained to avoid such exposure, what’s known as a “fatal funnel,” said Michael Leonesio, a former training officer for the Oakland Police Department who testifies in court as an expert on police tactics.

“That’s one of the places where officers get killed,” Leonesio said. “You have no cover, no concealment, no surprise. You pull up in front and you pop your door open. The bad guy is going to shoot you.”

In one of the few times Rochester investigators asked about the events leading up to the shooting, Ferrigno was offered this question: “What were the chances of having two silver gray Impalas that have police type body styles driving around in the same neighborhood with guns in it?” Sergeant Kavanaugh asked. “What are the odds of that, do you think?”

“Very, very rare,” Ferrigno replied.

Ferrigno had little basis for several of his assumptions. He had no way of knowing when he spotted the car whether anyone inside had a gun. His guess about who was in the car was wrong. As for the prevalence of that kind of car: In 2016, about a thousand Chevrolet Impalas were registered by residents living in that part of town, according to data provided to Reuters by Hedges & Company, an automotive market research firm.

A week later, Rochester police located the Impala they had sought the night Simmons was shot. It wasn’t silver or grayish. It was gold.

Ferrigno later testified that he was “cleared” by the department’s review. An advisory panel of three civilians reviewed the internal investigation and concurred, the department told Reuters.

He was also honored. Top brass named him one of the department’s officers of the month for his actions that April.

A CASE UNFOLDS

Very little information about the department’s internal investigation or the officers’ conduct leading up to the confrontation was presented at the Simmons trial. The focus was on whether Simmons shot at Ferrigno.

When testimony began October 10, 2017, Simmons had been in custody 18 months. The prosecution’s lead witnesses were Ferrigno and Giancursio.

Ferrigno acknowledged that he never actually saw a gun in his target’s hand. After chasing Simmons up the driveway and into the darkness of a moonless night, he said he lost sight of him. Then he heard “a loud bang … like a gun going off.” Then: “a muzzle flash, or what looked to me like fire come from where his hand would be.”

“I just saw his figure light up” about 10 feet away, Ferrigno testified. He said he “returned fire.”

In a police report and in testimony before a grand jury, Giancursio never mentioned seeing a muzzle flash. But during the trial, he told jurors that he saw a flash of light and heard the “whiz” of a bullet pass by him. (He did not respond to interview requests from Reuters.)

In all, prosecutors called 28 witnesses, the defense two. Simmons chose not to testify. The case went to the jury 10 days later, on October 20, 2017.

Of the 12 jurors, the forewoman was Hispanic, three jurors were Black and eight were white. During a week of deliberations, they asked for an easel, a flip chart and markers, a chance to re-examine exhibits such as the Ruger and readbacks of chunks of testimony.

One was the testimony of a 52-year-old woman who lived directly across the street from the driveway that Ferrigno’s cruiser blocked. Dawn Darragh was one of the two people called by the defense. Simmons’ lawyer Riley referred to Darragh in her closing argument as “the lady who sits home all day and every time … she hears something, she gets up. She looks out. Every neighborhood has one.”

Darragh testified that bright lights drew her to her window. She saw a single officer jump out of a police car, gun drawn, and chase a man into the darkness. Then, she heard four gunshots – “pop-pop, pop-pop” – before a second officer pulled up in a separate squad car, patrol lights flashing.

Her testimony conflicted with the accounts of both officers. She heard four gunshots – the number Ferrigno alone fired. And, if the shooting happened before Giancursio arrived, as she said, the officer could not have seen a muzzle flash or heard a bullet “whiz” past.

"PER THE CUSTOMER'S INSTRUCTION”

Jurors also sought “the testimonies regarding gunshot residue in relation to defendant and clothes.”

Prosecution witness Eric Freemesser, a forensic examiner at the Monroe County Crime Lab, testified that his technicians regularly test clothing for gunpowder residue. Simmons had urged police to test his hands and clothes for residue.

Public defender Riley cross-examined Freemesser: “If he was holding a gun and fired it, could you have tested the arm of his sweatshirt to see whether or not the arm of his sweatshirt picked up any gunpowder residue?”

“I could’ve tested that, yes,” Freemesser answered.

“But that was not done?” Riley asked.

“No, it was not,” Freemesser said.

“And was not requested of you?”

“Correct,” Freemesser answered.

Although the magazine of the Ruger cops said they found at the scene was empty, Freemesser pointed out something odd: An empty casing remained in its chamber. When the pistol is fired, a shell casing should pop out and fall to the ground. Freemesser explained that he tested the Ruger repeatedly in the crime lab. It was in good working condition. If it had been fired that night, why was an empty casing still inside?

Also of note: Authorities found no evidence on the Ruger or the empty shell casing inside – no DNA or fingerprints – linking Simmons to the gun. Nor could officers locate a bullet from the Ruger, despite canvassing the neighborhood.

Perhaps the most complicated testimony jurors reviewed came from a customer support engineer for a Silicon Valley-based company paid about $130,000 a year by the Rochester Police Department.

The company, ShotSpotter, uses audio sensors positioned around the city to try to identify and pinpoint the location of gunfire. It’s supposed to help police and paramedics improve response times. But prosecutors also have used it as they did in the Simmons trial: as evidence of the time, number and location of shots fired.

Initially, according to company records and trial testimony reviewed by Reuters, ShotSpotter told Rochester police that it identified the sounds that night as coming from a helicopter, not a gun. Then, after Rochester police told ShotSpotter the department was investigating an officer-involved shooting, the contractor reclassified the sounds as three gunshots, “per the customer’s instruction.”

After another communique from Rochester police, ShotSpotter analyzed its logs again. This time, ShotSpotter concluded that its sensors picked up four gunshots, all near Simmons’ house.

Ferrigno had himself fired four times, which fit the updated ShotSpotter analysis. But what of the shot that Ferrigno insisted Simmons fired?

Rochester police requested another audio analysis from the contractor, court records show. The ShotSpotter report was revised once more. This time, a customer support engineer testified, sensors identified five shots – a finding that now conformed with Ferrigno’s version of events.

Simmons’ defense team had sought the original recordings and other ShotSpotter records. But the company “refused to honor the defense subpoena,” Riley disclosed in a motion. If the defense wanted the information, it would have to pay more than $10,000, court records show, “a cost that was well outside the budget of the Monroe County Public Defender's Office.”

ShotSpotter spokeswoman Liz Einbinder said the company would not answer questions about the case because of pending litigation.

To Riley, the company’s unwillingness to supply the information was yet another example of how unfairly her client had been treated. His pleas from a hospital bed to have his clothes and hands tested for gunpowder were disregarded. And as she told jurors in her closing argument, the internal investigation that Ferrigno said “cleared” him of wrongdoing was nothing more than “cops policing cops.”

“Think about whether or not that is a fair and impartial body,” Riley asked the jurors, “and whether or not it's relevant at all that he was cleared there.”

Late in the afternoon of October 26, jurors sent a note to the judge: They had reached a verdict. At the defense table, Simmons stiffened and prayed silently: God, don't let me go to jail for the rest of my life for something I didn’t do.

NEXT — Chapter Three: As Simmons learns his fate, Rochester pushes for greater control of its police force

(Reporting By Reade Levinson and Lisa Girion. Additional reporting by Lindsay DeDario. Editing by Blake Morrison and Janet Roberts.)

[© 2020 Thomson Reuters. All rights reserved.]

Copyright 2020 Reuters. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.  Thompson Reuters is solely responsible for this content.