BRENDA HARDAWAY VICTIM OF POLICE BRUTALITY

Impossible choices: Brenda Hardaway pleads guilty to assault in the second degree

Submitted by T. Forsyth on Sat, 2014-01-18 16:46

On Friday, January 17, 2014, Brenda Hardaway, between five and seven days past her due date, stood before state Supreme Court Justice Francis A. Affronti and plead guilty to felony second degree assault with the understanding that she would get a reduced sentence of six months in jail and five years of probation.

The Friday appearance was meant to be a Huntley hearing before the start of a trial on February 10, until Assistant District Attorney Brian Green said that he had spoken to several parties—his boss—District Attorney Sandra Doorley, the injured officer, Justice Affronti, and the defendant's attorney Eric Teifke—and felt that “a resolution in this matter is appropriate.”

Ms. Hardaway's case went viral on YouTube, when a video surfaced on August 27, 2013. The video showed an RPD officer—Lucas Krull—attempting to arrest her after it was alleged that she interfered with the arrest of her younger brother (a minor) Romengeno Hardaway. The video starts with her screaming that she's pregnant; officer Krull is behind her attempting to handcuff her. Eventually, she is thrown into a railing, punched in the back of the head multiple times, dropped to the ground belly first, and then kneed by the officer. While she is being attacked, her brother can be seen in the background with three or four officers attempting to subdue him. At one point during this attack, Romengeno expressed at a later date, the side of his head was smashed against a railing with an exposed nail causing the nail to be driven into the side of his temple. The video ends with Brenda and Romengeno being lead away in handcuffs with family members and friends protesting to more than 10 police officers. What began as a domestic dispute between family members escalated into a full-scale RPD brawl against the Hardaways.

Part of the plea deal involves Ms. Hardaway explaining and acknowledging her actions on the day in question. After Justice Affronti checked in with Ms. Hardaway about her first, late pregnancy, the judge acknowledged that ADA Green's statements in favor of a resolution were accurate. He said that he had had conversations with the different parties on December 17, 2013. He then posed a question to ADA Green: “I'm also asking, at this time, about the police officer. What is his medical status?” Earlier in the proceeding, the judge identified the officer as “the victim in this case.” ADA Green replied, “He's on light duty right now—he has a shoulder injury and is scheduled for exploratory surgery because it has not healed right.”

Justice Affronti acknowledged the statement and moved on. “The court is deciding whether it is legally and procedurally appropriate to allow this resolution.” Mr. Teifke reminded the judge that aside from the incident on August 27, Ms. Hardaway has no prior criminal record and that she has had no interactions with law enforcement since. The judge agreed with Mr. Teifke's comments and then proceeded to ask Ms. Hardaway questions about her age and schooling; if she knew about the hearing today; that her case could go to trial before 12 people that would decide the outcome and where she would not be obligated to testify, offer evidence, or call witnesses. She acknowledged all of the questions asked of her. He asked if she was under the influence of alcohol or drugs. She responded in the negative. “If you tell me today that you are guilty of assault in the second degree then you won't have a trial,” the judge said. “Do you understand that?” “Yes,” Ms. Hardaway said. The judge acknowledged that she was “clear minded” and able to enter into a plea deal. “Do you know what your sentence will be?” the judge asked. “Yes. Six months in Monroe County and five years probation,” she responded. “What happened on August 27, 2013 Ms. Hardaway? What did you do? I want you to be as specific as possible,” the judge said. “The officers were trying to arrest my little brother and i got involved with the arrest and I had pepper spray on me. I tried to stop the arrest,” she started. “Wait a minute,” said Justice Affronit, “Where did it happen?” “It happened at 384 Selye Terrace.” “And where did it happen? Was it inside that address? Outside?” “Outside in the front yard.” “What is your brother's name?” “Romengeno Hardaway.” “Go on Ms. Hardaway.” “I was trying to get them off my brother. I was trying to break them up. I didn't do anything with the pepper spray—we were grabbing and pulling at each other as I tried to break up the fight.” “Did you hit or strike one of the officers, Ms. Hardaway?” “I did not strike a police officer,” she said. She continued, “As I tried to break the fight up I was pulled away from them and I fell to the ground. When I got up, then they arrested me. When the two of us fell to the ground, that's when the shoulder injury happened to the officer. I was pushing away from him—I never hit him. Could I show you?” she asked. “Assault in the second degree requires that we know what if any part of your body came in contact with the officer causing injury,” said the judge. “This needs to be on the record, so you cannot show me.” “I was telling him that I was five months pregnant and I was trying to get away from him.” Mr. Teifke interjected here, “When her arms were pulled behind her back, she complained about the pain and then proceeded to try to bring her arms forward when the pain did not cease. At that point, they were moving forward together and fell to the ground. That's when the injury to the officer occurred. Assault in the second degree requires only that an officer was injured without any indication of her intent to injure. We do not dispute the injuries.” The judge accepted this. ADA Green then asked Ms. Hardaway, “how do you plead to assault in the second degree?” “Guilty,” she said.

Her plea was entered into the record. “This matter will be adjourned until her sentencing which will be on March 18, 2014, at 9:30AM,” said the judge. Justice Affronti then looked at Ms. Hardaway and said, “Between now and March 18, you are to have contact with the Monroe County probation office. You must make all your appointments with them so that I can have their report on March 18. Between now and then you are not to be arrested for any violation of the law. If you don't keep your appointments or have involvement with the police, I can't keep my promise regarding your sentence.” Court was adjourned.

After court I asked Mr. Teifke about the plea deal. “It's a deal she can live with. Going to trial always has risks and in this case, all the prosecution has to prove to get a conviction for assault in the second degree, is that the officer was injured during the arrest.” He told me that the statue is “extremely police friendly” and joked that it seems like every year a new type of civil servant is added to the list of the protected. Reading the statute, you get a sense of that: sanitation workers, first responders, police officers, and everyone in between is protected by this law. He also told me that the maximum sentence is seven years in jail. “You could be running from the police, two blocks ahead of them, and one of the cops chasing you trips and wrecks his elbow. Once arrested, you can be charged with assault in the second degree because that's the way the statue is written,” said Mr. Teifke. “There doesn't have to be intent to injure—just that an injury has occurred.”

The plea deal says six months of jail and five years of probation. Mr. Teifke thinks that she will be out in two months because of time served and good behavior. There was no misdemeanor offered by the DA, so his client went with the next best thing—pleading to a felony conviction with minimal time in jail. Part of that decision was influenced by her impending delivery.

Impossible choices Michelle Alexander in her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness makes the argument that “mass incarceration in the United States has, in fact, emerged as a comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.” Under this “well-disguised system” people are forced to make impossible choices that may lessen their bodily punishment now (shortened jail sentences), but in the end, creates a life-time of punishment (a felony conviction) where there is no way to atone for one's transgressions.

Eric Teifke, a lawyer with the Monroe County Public Defender Office and Ms. Hardaway's lawyer, told me that a trial was risky and that this was a deal that Ms. Hardaway could live with. It seems to me that this is an impossible choice: have your child and then go to jail for two months with a felony conviction, or take your case to trial where your chances of being found not guilty are slim compounded by a heavy amount of anxiety that is neither good for you nor your newborn. On top of that, if you are in fact found guilty, be prepared to be sentenced to a potential seven years in jail with a felony conviction.

The way Justice Affronti talks about police being victims in this case makes me think he would not have much compassion for Ms. Hardaway. Neither choice is appealing when police go crazy by storming the front lawn of the Hardaways' home, escalating instead of de-escalating a verbal dispute, and then arresting a minor after smashing his head into a post driving a nail into his temple and then punching and dropping a pregnant woman to the ground. This kind of insanity would never fly in the suburbs of Rochester, NY so why is it allowed to flourish in the city? (It's a rhetorical question; one doesn't have to look far beyond race and class.)

The life-time punishment of being convicted of a felony is listed in Alexander's book as well as the article published in The American Prospect: http://prospect.org/article/new-jim-crow-0 ...we use our criminal-justice system to associate criminality with people of color and then engage in the prejudiced practices we supposedly left behind. Today, it is legal to discriminate against ex-offenders in ways it was once legal to discriminate against African Americans. Once you're labeled a felon, depending on the state you're in, the old forms of discrimination -- employment discrimination, housing discrimination, denial of the right to vote, and exclusion from jury service -- are suddenly legal. As a criminal, you have scarcely more rights and arguably less respect than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.

She calls the system colorblind because instead of it being an explicitly racially discriminatory system, it is predicated on one's criminal status—and it doesn't just happen to be a coincidence that people most targeted by law enforcement are people of color. (Thanks, War on Drugs!) The lack of confidence in the public defender's office by many people of color I've spoken to is of high concern. A lot of folks think the judges, district attorneys, and public defenders collude to get those charged with crimes—though innocent until proven guilty—convictions and jail time. This does not bode well for an office that is supposed to fight and advocate for their court-appointed clients. I've also had conversations with lawyers who think that part of the problem stems from the county's lack of funding and staffing for both offices. In the end though, it is the people who have to make the impossible choices, not their lawyers. This has to end.

Coming up Romengeno Hardaway, also arrested on August 27 and charged with disorderly conduct and resisting arrest, has court before Judge Thomas Rainbow Morse on January 27, at 9:30AM. Brenda Hardaway's sentencing is March 18 at 9:30AM before Justice Affronti. Enough is enough.