Rosa DiMano: Be the judge and the jury! review the video posted below of your article; "Forcillo sentencing down to a mishmash of hypotheticalts."

COURT OF THE PUBLIC OPINION: ISSUE YOUR VERDICT IN THE EXTRAJUDICIAL EXECUTION OF SAMMY YATIM BY THE ASSASSIN POLICE OFFICER JAMES FORCILLO.

                                                                                   

 Forcillo sentencing down to a mishmash of hypotheticals: DiManno

Crown argues that it’s impossible to know what the jury was thinking in rendering their verdict, so sentence should not hinge on it, as defense argued.

Fifty seconds: From the moment Const. James Forcillo first laid eyes on Sammy Yatim to the moment he pulled the trigger on his police-issue Glock.

Seven seconds: The time that elapsed between the first volley of three shots – including the lethal bullet – and the second volley of six shots, five of which struck the dying teenager.

The initial gunfire was justifiable, a jury concluded, acquitting the officer of second degree murder. The subsequent gunfire was not justifiable and Forcillo was convicted of attempted murder.

Less than a minute in all, that fateful July night in 2013, and the wreckage it left behind.

One life lost, needlessly, if not for the foolishness of an 18-year-old high on Ecstasy, brandishing a knife, the blade he’d already wielded at a terrified passenger before everyone scrambled off the stopped downtown streetcar.

One life hanging in the balance, the cop who says he was only doing his job, presented with a non-compliant armed suspect posing an imminent threat.

Except there was no threat, imminent or otherwise at the point of the second volley, not with Yatim lying mortally wounded near the stairwell of the car, his spine fractured, paralyzed from the waist down, his heart catastrophically damaged from another bullet to the chest.

One minute that neither Yatim nor Forcillo can have back.

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Yet here we are still, four months since the jury rendered its verdicts, and the lawyers drone on.

Theorizing about what the jury was thinking, why they did this and not that. Going round and round on the evidence that was heard over many weeks of trial, both the defense and the prosecution resurrecting arguments that have been fulsomely addressed and still there’s no agreement even on the facts.

Those facts will ultimately be drawn by Justice Edward Then, from the mishmash that has been presented during this sentencing phase of trial. Those “facts,” presented in such stunningly contradictory fashion, then further distorted via the rhetorical mechanism of “hypotheticals” – not what happened here but what might have happened somewhere else, under completely different circumstances (the chronically battered wife who keeps firing a gun even after her tormenter has been stopped dead in his tracks but one of the preposterous comparisons offered) – must be weighed by Then in deciding Forcillo’s fate.

The Crown is seeking a prison sentence of between six and eight years, well beyond the mandatory five year minimum for attempted murder with a restricted weapon. The defense, which has simultaneously launched a constitutional challenge on minimum terms as they apply to a police officer duty-bound to protect the community, thus the five-year benchmark “grossly disproportionate” to the offense – is asking for house arrest: No prison time and, if a suspended sentence, no criminal record either.

Like it never happened.

The circular arguments continued on Tuesday.

Straight out of the chute, lead Crown Milan Rupic argued that, essentially, the Constitutional argument is irrelevant. “There’s no need to decide the constitutional issue because (Forcillo) should get more than the minimum five years,” he told Then, adding the bench is “sitting as a trial judge, not as a royal commission presiding over interesting matters.’’

Then: “Do you agree with the facts?” Meaning, the facts as defense lawyer Peter Brauti had spun them in his at-bat last week.

Rupic: “No I don’t.’’

To distill Brauti’s submission: The jury clearly believed Forcillo was justified in shooting Yatim, with the first volley; it was at some point in the second volley that they drew the line. Count 1, acquittal on the murder, should therefore impact – alleviate -- the context of Count 2, conviction on attempted murder.

Except it’s all conjecture. We don’t know what the jurors were thinking. They can’t even be asked.

“You should not try to trace possible logic that a jury may or may not have followed to get to that verdict,” said Rupic.

The Crown, which deliberately – and, as it turned out, cleverly – divided the two separate volleys, now posits that the event should, for the purpose of sentencing, be viewed as a “single transaction,” extending from the moment the hot-shot went over the police radio, to Forcillo emerging from his cruiser, drawing his weapon outside the streetcar door, swearing at Yatim, repeatedly ordering him to drop the knife, firing three times and then firing again six more times with the teenager down. Ostensibly, as Forcillo testified, because Yatim had flicked his knife menacingly (before the first volley) – though this is debatable; all that’s visible on video is the teenager moving his switchblade marginally – and then, when felled, was trying to re-arm (brushing the dropped knife towards his torso) and lift himself up to continue the attack, as the officer saw it.

Not once, from beginning to end, had Forcillo attempted to de-escalate the confrontation, Rupic stressed. That, he argued, is part and parcel of police training – to calm things down, verbally at first.

Then pointed out: “Six seconds of assessment.’’

That’s all the time Forcillo had to make his decision on the second volley.

It was also all the time Forcillo gave himself.

Then: “Are you saying if de-escalation had been tried, this could have been avoided?”

Rupic: “A sincere effort at the outset could have avoided the sequence of events that led to bullets being fired.’’

Nobody had been hurt yet when Forcillo took his weapon-drawn position. Frightened, yes, but not hurt. There were at least a dozen other officers behind him. His own partner had holstered her gun. No victims, no blood.

“Officer Forcillo used profanity to intimidate,” said Rupic. “It was an unnecessarily aggressive and emotional approach.’’

A bully, said Rupic.

And all those nice character references submitted on Forcillo’s behalf last week, what a swell guy he is, don’t amount to a hill of beans. Same cop who, as he testified, had pulled his weapon “about a dozen times” during three and a half years on the job, totally out of statistical whack with most of his colleagues.

Rupic: “Reference letters don’t shed light on whether he acted like a bully in this case.”

One heedless youth. One go-to-gun cop. One tragic minute.

Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.