Cruz cleared in brutality case

By MICHAEL P. RELLAHAN

mrellahan@dailylocal.com

PHILADELPHIA — State Trooper Kelly Cruz, who more than four years ago had a violent confrontation with a handcuffed suspect during a drug lab raid in West Whiteland, on Monday was found not guilty of violating the man’s civil rights.

A jury of seven women and five men deliberated about three hours before returning with its verdict on the single count against Cruz, a veteran of the state police who investigated narcotics trafficking in southern Chester County and elsewhere.

According to Cruz’s attorney, Christian Hoey of Paoli, supporters of Cruz who were in U.S. District Court Senior Judge Mary A. McLaughlin’s courtroom erupted in cheers of jubilation after the verdict was read. Cruz, by contrast, broke down in tears, and was “inconsolable” for several minutes as his family came to his side.

“We are very pleased with the result,” Hoey said afterward. “It has been a long five years fighting this case, and he is happy to have his credibility restored and to get his job restored.”

Cruz had been suspended from the state police force Troop J Vice Unit, for which he was a supervisor, when he was indicted by a federal grand jury last August.

Cruz, 44, of Oxford, had maintained that he had acted out of fear for his own safety and those of other officers in the house when they had chased the suspect, Zachary William Bare, and pushed down on the man’s shoulder, driving his face into the floor. Bare‘s teeth were pushed into his upper gums, and his nose was broken.

The indictment had accused Cruz of using unnecessary force in dealing with Bare, 25, of Exton.

A spokeswoman for the U.S. Attorney’s Office, Patricia Hartman, said the prosecution accepted the decision to acquit Cruz. “We respect the jury’s verdict,” she said.

In his closing argument, Assistant U.S. Attorney L.C. Wright, one of two prosecutors assigned to the case, said that while Bare may not be the most respectable of men or productive of citizens, he was nevertheless entitled to protection from unwarranted assault by police.

“He might have been a drunken nuisance, but that does not matter, because he is still protected by the civil rights laws,” Wright argued.

The panel of seven women and five men began deliberating the case against Cruz around 12:45 p.m. Monday. They returned with the not guilty verdict about 3:45 p.m.

The incident occurred during the aftermath of a raid at a home on East Swedesford Road in West Whiteland, where police found a methamphetamine lab. Although Bare was known to have frequented the house, which was a few blocks from his home on Heather Road, he was not found there at the time of the raid.

Instead, Cruz — a member of the state police’s Clandestine Lab Response Team — and three township police officers converged on the house Bare, 22 at the time, shared with his disabled mother. There, lying on the tile floor of the kitchen, with his hands cuffed behind him, Bare suffered injuries to his teeth and nose when Cruz either kicked him in the head or pushed his shoulder to the floor, depending on the dueling version of events in the trial.

Cruz, in his testimony on Thursday and Friday, maintained that he was reacting to a threat by an enraged suspect he feared could be armed as he lay on the floor. He said that Bare, shouting obscenities at him, made a move as though he was trying to get up off the floor, causing him to use his foot to keep him down.

“The execution of a search warrant in a high risk setting” like a meth lab raid, said defense attorney Hoey, “is a no-joke situation. You make one mistake, you are wrong for one second, and you are dead forever.”

In his closing argument, Hoey said that what Cruz had done the night of the raid, Aug. 19, 2009, was appropriate for the situation he found himself in, and well within his police experience and training. “His use of force was eminently reasonable, and entirely justified,” he said.

The defense attorney asked the jury to disregard the testimony of township police who testified against his client, saying that their accounts of what happened inside Bare’s house were too inconsistent and contradictory to be believed.

Hoey suggested the West Whiteland police department was apprehensive about a civil lawsuit against them and had manufactured a story that would blame Cruz.

“They don’t want to admit that they made mistakes (during the raid), and they want to move him to the front,” Hoey said, pointing at his client, seated at the defense table.

Indeed, the case seemed to pit the officers from the West Whiteland department — including Chief Joseph Catov, Lt. Matthew Herkner, Sgt. Glenn Cockerham, and Officer Jeffrey McCloskey – against Cruz’s colleagues from the state police.

On Monday, McLaughlin’s courtroom was packed to capacity with officers from both branches of law enforcement, many of them sporting state police lapel pins. More than 80 people sat though the closing arguments of both attorneys.

Hoey had especially harsh words for Cockerham, who had testified that he saw the trooper kick Bare in the back of the head after telling him to shut up. Cockerham had told the jury he saw no reason to use force against Bare, who was handcuffed and face down on the floor.

But Hoey pointed to holes he said were in the accounts Cockerham gave, and questioned why McCloskey and Herkner could not remember the same details he did, such as where he was positioned when he said he saw the blow Cruz delivered.

“Officer Cockerham feels OK about saying things that he doesn’t know anything about, that he knows are not true,” Hoey told the panel. He questioned why Cockerham had waited until the following day to make a report accusing Cruz of the assault.

“He could have told anyone, but he didn’t,” Hoey said of Cockerham. “He could have grabbed the trooper and said, ‘What on God’s earth do you think you are doing?’ But he didn’t. Because he didn’t see what he said he did.”

But Wright, in his closing, paid tribute to Cockerham for coming forward.

“How much courage do you think it took to get up on that witness stand and testify against a fellow law enforcement officer,” he asked.

Wright also noted the essential part of Cruz’s testimony — that Bare was not acting threateningly toward the officers, only belligerently, was corroborated by McCloskey and Herkner.

“He didn’t pose a significant threat,” Wright said of Bare. “He did not pose any threat at all.”

The indictment by the federal grand jury came after an investigation of the incident by the FBI, led by Special Agent Raymond Carr, two years after a similar investigation by the state police Internal Affairs Division laid out a case for prosecuting Cruz for assaulting the prisoner. However, in October 2011 officials from the state Attorney General’s Office told a Chester County Common Pleas Court judge that a state grand jury had declined to authorize charges against Cruz.

Bare, meanwhile, settled a federal civil rights lawsuit against Cruz and the state police in 2012 for a reported $125,000.