Not Only The Dead Keep Secrets

The bullet that struck Hofstra student Andrea Rebello and took her life was a tragedy, but it also set in motion a series of excuses designed to obfuscate what happened and shift blame away from the officer who pulled the trigger at all costs.  Her family’s lawyer, David Roth, wasn’t having any of it.

A State Supreme Court judge has ordered Nassau County police to turn over investigative files to the family of a Hofstra student who died in an off-campus police shooting after an armed robber took her hostage.

Andrea Rebello’s family is entitled to access to the records, which include the entire files from the police department’s homicide squad and internal affairs bureau relating to the deadly shooting on May 17, 2013, Justice Karen Murphy’s order says.

“We’re hopeful that this will shed light on what really happened that night,” said Manhattan attorney David Roth, who filed a wrongful-death lawsuit against the county and police in May on behalf of Rebello’s family. “The records will certainly be germane to the claims that we’re making in the case.”

At the outset of every tragedy, there is a call to await the investigation, await the facts, withhold judgment until all the evidence is gathered and then, and only then, will we be capable of assessing fault. 

County officials said Thursday that they plan to appeal the July 24 order.

While most rational people would read the county’s adamant refusal to disclose the surrounding evidence as a concession of fault, it’s more useful for public condemnation than evidence in a wrongful death suit.  The family needs the proof, not just the inference drawn from the refusal to disclose the facts.

A review by Nassau District Attorney Kathleen Rice’s office previously found that Officer Nikolas Budimlic — who accidentally killed Rebello, 21, of Tarrytown, when fatally shooting her armed captor, Dalton Smith — was justified in using deadly force.

Rice’s probe found that Smith, 30, of Hempstead, had ignored commands to drop his gun and threatened to kill both Budimlic and Rebello while taking turns pointing his gun at each of them during the confrontation in the student’s Uniondale rental home.

This inquiry, aside from being typically suspect because of Rice’s sordid history of deceitful investigations designed to exculpate rather than get at the truth, bears only upon a very limited piece of the puzzle, whether use of deadly force, standing alone, was justified.  It doesn’t touch on whether Budimlic’s mindlessly, and perhaps contrary to orders, rushing in to a hostage situation set in motion the events that ended up with Rebello needlessly dead.

One might not expect the plaintiffs in the wrongful death suit to face such difficulty in unearthing what happened.  After every tragedy, a police spokesman will give speech number 7 about how there will be a thorough investigation which will ultimately reveal to all what really, truly happened, and why it wasn’t the officer’s fault.

The outcome of such investigations, if ever revealed, never receives the attention of the tragedy, meaning that other than those directly affected, no one ever knows what happened.  There remains an assumption that the police will do as they claim, there will be an actual investigation and that investigation will produce a result upon which we can rely.  If we care enough to know what it is, then we just need to read the tiny blurbs in the back pages of the local paper for the next few years.

Skeptics, of course, assume that it will all be a whitewash, some vague words and a conclusion that police have a very hard job, which they do with valor and integrity even though someone occasionally gets shot in the head.  But this time, there can be no doubt but that the Nassau County cops are deep into covering it up.

While Justice Murphy has ordered disclosure, the County will not be forthcoming.  They will appeal, and fight this long and hard for the next year or two.  But even if they should lose on appeal, as they should, and fail to get leave to appeal to the Court of Appeals, which they should, and have it remanded back to Judge Murphy to enforce her already issued order, which she should, how will the plaintiffs know?

There is no accountability, no method by which any judge or plaintiff’s lawyer, can be assured that they have been given all that exists.  It’s assumed that if a judge orders disclosure, then the County and its police will comply.  It’s assumed they will comply fully. It’s not only assumed, but presumed, meaning that if the plaintiff doubts they have fully complied, the burden is on the plaintiff to show why.

And if a particularly damning document winds up wedged into the back seat of some cop’s car, not to be found for 27 years, what’s there to do?  If the police turn over discovery in compliance with the judge’s order, the plaintiff will look at it and be constrained to assume that’s all there is, because no one, absolutely no one, can assure him that he’s really gotten everything.

This might come off a bit cynical, but for the fact that it happens with Brady material all the time. All the time.  And the usual punishment for deliberate concealment of evidence is a stern admonition from a judge and a mulligan.  Much as police hate a stinging rebuke, it beats the hell out of a jury verdict of liability for killing a 21-year-old college student.

There is a reason the judicial branch of government is called the least dangerous, and no one knows it better than the police.

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