Matakovich trial set to enter the federal arena Monday
Accused of assaulting man at Heinz Field
Police are sued regularly in federal court for civil rights violations.
Not much happens to them even when they lose. They keep their jobs and damages typically are paid by their municipality’s insurance carrier.
But there is a second kind of civil rights action against police in the U.S. courts — the criminal prosecution.
Those cases are rare and the stakes much higher.
Stephen Matakovich now joins a short list of officers to face the heft of the Justice Department in Western Pennsylvania.
His trial starts Monday before U.S. District Judge Cathy Bissoon.
Jury selection began last week and is expected to conclude Monday, with testimony starting either Monday or Tuesday.
Mr. Matakovich, a former Pittsburgh police sergeant, is accused of assaulting Gabriel Despres outside Heinz Field during the WPIAL high school football playoffs in 2015. A video surveillance camera recorded him shoving Mr. Despres to the ground and then repeatedly punchinghim.
Mr. Matakovich is charged with deprivation of civil rights and obstructing justice by falsifying his policereport to justify his use of force.
He is only the fourth police officer charged with similar conduct in this federal district, which comprises 25 counties, since 2014.
Officers in Springdale, Millvale and Redstone Township, Fayette County, were all convicted after FBI investigations. Two pleaded guilty and one was found guilty at trial. Only one went to federal prison. Mr. Matakovich faces a potential 30 years under tough U.S. sentencing guidelines if convicted, but it’s likely he will get nowhere near that.
Neither his lawyer, former assistant U.S. attorney Tina Miller, nor the U.S. attorney’s office will comment on any aspect of the trial.
But if he’s found guilty, Mr. Matakovich appears likely to receive a term similar to that of former
Springdale officer Mark Thom, who in 2014 was sentenced to a year and a day in federal prison.
Mr. Thom, who had been the subject of numerous complaints, admitted that he punched and used a Taser on a man in handcuffs in the back of his patrol car after arresting him for driving under the influence and with a suspended license in 2011.
At the time, then-U.S. Attorney David Hickton said the prison term was “not only for the crime he committed, but also because he was discouraging other police officers from cooperating with us and providing information.”
In two other abuse cases, the officers received probation.
The U.S. attorney’s office indicted former Millvale Officer Nicole Murphy in 2014 on charges of violating a prisoner’s rights by Tasing him. Thomas Smith was drunk, handcuffed and kneeling at the police station and began smacking his head against a desk when she pulled her Taser and zapped him.
Like the Matakovich encounter, the incident was partially captured on video, the key piece of evidence at trial.
Prosecutors asked for 27 monthsin prison, but U.S. District Judge Arthur Schwab rejected that, saying it would serve no purpose. He gave her a year of home detention and ordered her to perform 300 hours of talking to police aboutexcessive force.
In a case brought the following year, the U.S. attorney’s office indicted Norman Howard of the Redstone Township department on charges of deprivation of civil rights and falsification of a document.
A grand jury said he punched a man in the face without cause and lied about it on a police report, saying the suspect shoved him and resisted arrest.
He pleaded guilty. U.S. District Judge Joy Flowers Conti gave him three years of probation, the first six months on home detention.
The Matakovich case is similar to the others in that he is accused of using too much force and lying about it.
But it’s also different in that the surveillance video plainly shows the encounter. In it, Mr. Matakovich, who is much larger than Mr. Despres, suddenly shoves him and knocks him to the ground, then delivers a series of punches before arresting him.
In outlining her defense strategy, Ms. Miller has focused less on the video than on the aftermath.
One of the aspects that federal prosecutors must prove is that Mr. Matakovich obstructed a federal investigation in lying in his police report.
Ms. Miller argued that because there was no federal investigation at the time he wrote the report, the charge should be dismissed.
Prosecutors said the statute in question applies to any potential federal investigation, not an ongoing one, and Judge Bissoon agreed in rejecting the motion to dismiss.
Ms. Miller was hoping to raise that issue again at trial. She said she wanted to present testimony that Mr. Matakovich was unaware at the time of the incident that his conduct could become the subject of a federal investigation or that the FBI had jurisdiction in an attempt to convince the jury that he did not intend to impede justice.
Prosecutors countered that she should not be allowed to pursue that defense because Judge Bissoon has already ruled on it.
The judge two weeks ago said that Ms. Miller can only introduce evidence of when the FBI began its investigation, which was around the same time as Pittsburgh police began theirs.
A second issue that was the subject of pretrial sparring was Mr. Despres’ memory. He has said at previous hearings that he remembers only parts of what happened either because he was drunk or because Mr. Matakovich punched him in the head several times.
Ms. Miller said Mr. Despres should not be allowed to give his opinion to the jury about why he can’t remember because he’s not a medical expert.
The judge sided with her, saying Mr. Despres can say he doesn’t remember but can’t give a cause.
Yet another point of contention was whether officers supporting Mr. Matakovich should be allowed in the gallery in their uniforms. The government said they should not.
“Even if uniformed spectators do not actively work to intimidate the jury, the mere presence of uniformed officers could have that effect, which could unduly influence the verdict,” wrote assistant U.S. attorneys Cindy Chung and Stephen Gilson.
Police are generally not allowed to appear in uniform in federal cases. Judge Bissoon quickly disposed of the debate when she ruled from the bench that she doesn’t allow police in uniform in her courtroom regardless of which side they are on.
Beyond this flurry of pretrial motions, the Matakovich case already had a contentious history.
He was initially charged in state court with official oppression and simple assault. At a preliminary hearing, he said he took action because Mr. Despres took an aggressive stance and made a fist. It was the same thing he’d written in his report and an affidavit supporting his arrest of Mr. Despres.
But David Wright, a Pittsburgh police expert on use of force, said at the hearing that the video does not show Mr. Despres acting aggressively and that the use of force was not justified.
“As I watch the video, I see no resistance,” he testified. “I don’t see resistance. Without resistance, there should be no force.”
Even so, District Judge Robert Ravenstahl dismissed the case. A group of police officers at the hearing celebrated.
But later that month the district attorney’s office refiled the charges after witnesses came forward to say Mr. Despres did not take an aggressive-stance and had his handsin his pockets.
After conferring with the district attorney, the U.S. attorney’s office took over the case, bringing an indictment in April 2016.
At the time, Mr. Hickton, then the U.S. attorney, said most officers go into the profession to protect and serve and the majority live up to thatstandard. But he said it is the U.S. attorney’s obligation to hold officers accountable whenthey abuse their power.
He did not address the evidence but said only that what Mr. Matakovich wrote in his report did not match the video.
It’s possible that without the video, the Justice Department would not have intervened. But prosecuting police even with video evidence is notoriously difficult in any jurisdiction.
David Harris, a University of Pittsburgh law professor who specializes in police issues, said prosecutions are problematic because many in the public are predisposed to think of police officers as the good guys. In addition, district attorneys’ offices work closely with police and may be reluctant to pursue cases against them.
But in the federal realm, the bar is even higher because federal prosecutors must prove that the police officer acted willfully. And even with a video, that is a challenge.
“For federal court, they have an incredibly high burden of proof,” said Mr. Harris. “The federal law requires not just that they prove that force was used and that the force was excessive.
It must also be proved in federal court that the force was used willfully to deprive a person of their civil constitutional rights. It is the heaviest burden that exists in criminal law.”
Even with a video as seemingly clear-cut as the Matakovich recording, winning a conviction is a challenge.
Mr. Harris said Mr. Matakovich’s defenses are limited. But he pointed out that the video has no sound, so it’s not clear what Mr. Despres may have said; Mr. Despres’s hands are not visible; and the video doesn’t show what preceded the incident.
“I’m not saying I would buy these arguments,” Mr. Harris said. “But all the defense has to do is find a plausible rationale for what the jurors see that just one juror can accept. That would create a hung jury.”
“For federal court, they have an incredibly high burden of proof. The federal law requires not just that they prove that force was used and that the force was excessive.” — David Harris, University of Pittsburgh Law Professor