Kevin Powell needs support

A group called the Friends of Kevin Powell Support Committee is assisting Kevin's family (mom Sandy and brother Peter).  There will be things the community can do down the road but there is an immediate need. This Friday, July 1st Kevin will appear in Judge Lamont court for sentencing.  Even though an appeal is in motion, the trial  judge has to set the sentence. The family was advised that it will be good to have a number of supporters in the court room.  If you can come, it will show the judge that Kevin does have community support.  Here are the details:

  Date:  July 1, 2011   Time:  9:30 AM
Place: Albany County Court, 6 Lodge Street, Albany,
Courtroom: Judge Lamont's court on the 2nd floor
Parking: meters on Pearl, Lodge, Pine or the Crown Plaza garage
This is not a protest. What Kevin needs is citizen support–people  quietly sitting in the courtroom.  Even if you don't know Kevin or his family, come beause you want to make a showing for justice.  We don't expect the media, but if they attend, we should not talk to them but direct them to Kevin's attorney, Terry Kindlon.

On June 26, 2010 Kevin Powell and his girlfriend Abbey stopped at Wolfe’s Beir Garden to view the remaining time of the Soccer World Cup game of US vs. Ghana.   The establishment had created an outdoor festival atmosphere with monitors mounted throughout the designated multiple street block party area.   Kevin, an African American, West Point Graduate and Abbey, his Caucasian girlfriend, arrived to the event nearing the end of the match.  The crowd of wall to wall U.S .Soccer enthusiasts had been consuming alcohol out of the plastic souvenir beer mug provided with the event’s admission for several hours.

The crowd remained enthusiastic and patriotic throughout the game. Kevin and Abbey felt the crowd’s demeanor change when it became apparent that the U.S. was going to be defeated by Ghana.  Racial slurs and murmurs began intermittently and became more fluid as the US efforts to win were unproductive.  The couple ignored the murmurs but choose to leave when the upset of the crowd became more pronounced. 

While the two were walking to their car, an unknown white man threw his plastic beer mug at the couple and yelled “F@$%$ing Niggers!”  The mug smashed around Kevin and Abbey’s sandaled feet. Reacting to his concern for Abbey’s safety, Kevin went over to the young man (Kyle, a law student) and “got in his face” yelling at him.  Kevin’s intention was to “punk the guy” to send a message that Kyle had crossed the line.   No physical harm occurred.  Abbey grabbed Kevin’s arm and said, “Let’s get out of here.”

As they walked away a group of 8-10 White people, about 15-20 feet behind, began to follow Kevin and Abbey, yelling threats, racial slurs and remarks and saying Kevin had broke the guy’s nose.  As they picked up their walking speed, so did the crowd. Kevin and Abbey sped up to escape the crowd, but they kept pace. When Abbey couldn’t keep up any longer, she told Kevin, “Go on” because it was clear they were after him and not her.  When Kevin couldn’t distance himself from the crowd, he attempted to create a diversion by throwing his plastic beer mug over his shoulder – without turning  around .  He thought the mug would smash on the pavement the way Kyle’s had.  Unfortunately, the mug hit someone In the crowd (Karen).  She sustained an injury to her forehead and fell to the ground. 

 Some of the crowd dropped back to help Karen and called the police. Others kept pursuing Kevin.  He was unaware that she had been hit because he was focused on trying  to get away from the crowd. When he was at the end of the street, he turned onto the railroad tracks where the police, guns drawn and dogs in tow, arrested him.  Because of injuries sustained to his face, chest and thumb at the hands of the police Kevin insisted and received medical treatment.  It should be noted that he was not charged with resisting arrest.

As a result of Karen’s  4 inch head wound, Kevin was charged with 2 felonies, with a range of 2-25 years state prison time.  No other person was charged.  Despite efforts to have the charges reduced or dropped, Kevin stood trial on both counts in March 2011. During the trial, Karen, whose injury was barely visible, testified that on that day she was on medication for depression which when combined with alcohol affected her judgment.   The members of the crowd, four of which had prior DWIs all stated the exact same conflicting statement from the law student Kyle’s statement.  Prior to the summation of the trial, the Defense was granted submission of a lower charge with a minimum of 2 years and a maximum of 7 years.  Kevin was found guilty on the lesser charge. He was taken to jail from the courtroom.  After spending 2 weeks incarcerated, he was granted bail and is currently out on bail appending appeal.  

Kevin needs your help.

You ask: How does this happen in 2011 and in Albany?  Please read the details on the reverse side and learn how the actions by 2 Albany County Assistance District Attorneys, the Albany Police, and the Judge and Jury has and will change Kevin Powell’s life, a Veteran, a former U.S. Congressional Paige, and currently a Military Defense Contractor Advisor.

 

The System and the Process

·         Arraignment

Following his arrest, Kevin was remanded to the Albany City Jail and appeared the next day in Albany City Court.  The judge initially set bail at $5,000 but, when Karen’s sister broke into the courtroom yelling that her sister was disfigured (evidenced by Karen’s bandaged forehead), the judge raised the bail to $30,000.

·         The Charges

Assistant District Attorney (ADA) Bruce Leonard set the charges in Kevin’s case as one count of 1st Degree Assault and one count of 2nd Degree Assault.  Both of these are categorized as violent felonies and carry mandatory state prison sentences.  Prior to trial, Karen and her family were in frequent contact with the Assistant DA’s office demanding harsh punishment.  She was referred to as an “active victim” and this impacted the charges that were set.  Kevin was not accused by the law student, nor was he charged with anything, including resisting arrest, by the police.  These two charges both stemmed from Karen. The prosecution assumed guilt without investigating both sides of the case to gather facts.

 

Kevin, as the defendant was not allowed to advocate with the DA’s office, except through his attorney.  The ADA  later offered a plea bargain of 4 years of state prison, which Kevin ‘s attorney declined  because the case was over charged.   This declination forced Kevin to go to trial.  The ADA set up the case to guarantee a guilty outcome.  Much harsher cases (i.e. intentional stabbings) were charged with less.  Later in the case, ADA Leonard was fired because he withheld evidence in another case that proved the defendant (a Black male) was innocent.  However no one reviewed his cases to see if this was a pattern of treatment of Black defendants.  ADA Leonard was replaced by ADA Brian Conley.  Kevin was not accused by the law student, nor was he charged with anything, including resisting arrest, by the police.

 

The Trial

Kevin’s case went to trial March 25, 2011.   There were two jurors a female and a male who appeared to be African-American, both young.  The male was very young. Based on consistent inaccuracies that were all reported in the same manner, it was clear that several of the witnesses for the prosecution, collaborated on their stories and lied.  For example, one of the female witnesses testified that Kevin reared back and threw the mug  at Karen like a baseball.  Upon cross examination she admitted that she didn’t know anything about baseball. She also was unable to identify Kevin as the person who threw the mug.   All of the witnesses (all white) testified that there weren’t any racial comments heard at the event (and they did not hear the law student make a racial remark; a moot point since he admitted to making the remark).

 

 Karen testified that Kevin was beating Kyle up and had him pinned to the car and she (a 5’2ish, slightly built woman) placed herself between Kevin and the law student and broke up the fight. This was the ADA ‘s claim as to Kevin’s motivation for targeting her with the mug.   The law student admitted that he did in fact say something inappropriate and that Kevin did not hit him, nor did Karen place herself between them to break up the “fight”.  

Karen and  the Albany Medical Center ER doctor admitted that he altered the medical report (as Karen requested this) to down play the fact that she was highly intoxicated and on anti-depressant medication when she presented at the ER.  She also was allowed at the trial to testify that she sustained loss of smell and taste as a result of the injury but no medical proof was offered to verify her assertions.  During the trial, ADA Conely received electronic texting guidance from the fired ADA Leonard on how to try the case.  Leonard was later dismissed from his new law firm for his actions.

·         The Trial Continued

The trial lasted for 5 days. However due to a predicted snow storm, the jury did not report on Friday, March 29th.  They heard final arguments on Monday.  It was very late in the day (after 5:00) when they received jury instructions from the judge. The judge did allow  the jury to consider the lesser charge of Assault in the 3rd degree.   However, the instructions were read to them and took more than an hour. They were not allowed to take notes.   The jury, anxious to go home, returned a verdict of guilty for Assault in the 2nd degree (unintentional) which carries a mandatory 2-7 year sentence.  He will appear before this judge on June 24th to learn his sentence.

·         The Appeal

Kevin’s attorney is preparing an appeal and he is out on bail pending the results of the appeal. 

The Impact of Race

Race clearly was a significant part of this case and it is clear that our society still has not comes to grips with how to recognize it or how to have reasonable conversations about race.  Listed below are some of the issues that support this assertion and have had a negative impact on this case:

·         While Kevin knew to stay clear of certain areas due to gang activity and excessive crime, he w as not aware this venue was also on the list of places to avoid.  When Albany residents (both Black and White) learned of this story, their reactions are, what was he doing down there, especially with a white woman?  Your family member too might innocently believe he/she is free to go anywhere they want.

·         Although Kevin heard racial comments while under the viewing tent, he ignored them because growing up in Bethlehem; he was use to that as being part of the background noise on occasion.  He became alarmed when it was clear that Ghana was winning the match and negative racial comments were becoming less random.

·         The law student used a racial insult when he threw the cup directly at Kevin’s feet. It wasn’t directed at anyone else in the crowd.

·         The all-White crowd assumed that Kevin was the instigator, the aggressor and in the wrong and that the law student needed to be rescued.

·         Kevin was depicted as the aggressor despite the fact that every witness stated that he was always walking away. 

·         The police used excessive aggression in responding by approaching Kevin who was unarmed with guns drawn and dogs.  They assumed he was wrong and dangerous and they did not investigate to find out what happened from both sides of the story.  In fact when Abbey, the only witness to the whole event, attempted to give the police a statement they wouldn’t accept it.

·         The witness statements taken by the police all describe Kevin in the same way using the same terminology.  He was described as the “big Black guy,” despite the fact that some of the men in the group were his size or larger.

·         The ADA set up the charges to guarantee a felony conviction without the facts.  This same ADA had withheld evidence that would have been favorable to another Black male defendant. When this was discovered by the defense attorney’s firm he was fired from the DA’s office but continued to advise ADA Conley on this case.

·         His other cases should have been reviewed to determine if race was a factor in charging or prosecuting those cases.

·         The jury was made up of 13 jurors, 2 of which were Black and young and one woman who looked to be of Middle Eastern descent.  Based on age, race and gender, this was not a jury of Kevin’s peers.

·         The defense attorney was reluctant to bring up the racial aspects of the case because of the historical reaction of predominantly White juries, which is to feel they are being called racists, or negative reactions to the “race card” being “played.” There are plenty of times when   race is a legitimate factor and is not a “card” to be “played.”

Posted in Criminal Justice