Luis A. Berrios 3d says he was brutalized by Philadelphia police during a domestic disturbance five years ago, and he’s requesting a new trial to hold the officers accountable.
In 2010, Berrios and his then-lover allegedly were subjected to excessive force by Philadelphia police, who were inside Berrios’ Hunting Park apartment to quell a domestic spat. According to Berrios, once the officers realized the men were lovers, they became violent, hurled anti-LGBT slurs at them and arrested them on bogus charges.
Officer Michael Gentile permanently injured Berios’ right arm while arresting him, and Officer Robert Tavarez facilitated the excessive force as a bystander, according to Berrios.
“Deep in my heart, I really felt we were going to be killed,” Berrios told a federal jury.
But on Nov. 4, after two hours of deliberations, the all-white jury cleared both officers of any wrongdoing.
In his Nov. 30 appeal, Berrios contends that U.S. Magistrate Judge Lynne A. Sitarski improperly prevented jurors from fully considering the alleged anti-LGBT bias of the officers.
“During the opening statement [on behalf of Berrios], there were numerous objections by defense counsel, all of which were sustained to prevent [Berrios’] counsel from informing the jury of [Berrios’] sexual orientation and the effect that it had on the events that occurred,” Berrios’ appeal states.
The appeal adds: “These were not harmless errors, as they affected [Berrios’] substantive rights and prejudiced jurors from the outset.”
Moreover, Sitarski allegedly prevented jurors from hearing testimony about the extent of Berrios’ injuries, the appeal contends.
“The error denying the treating physician from testifying as to [Berrios’] treatment was not harmless and therefore violated Federal Rules of Civil Procedures, affecting plaintiff’s substantive rights,” the appeal adds.
Additionally, Berrios contends that a key witness to the incident — his former lover Jason Mendez — is now available to testify.
“The court should relieve [Berrios] from the jury’s verdict based upon newly discovered evidence as to the actual availability of Jason Mendez. This is particularly true as the defense argued the absence of Mendez to the jury in its closing argument without knowing his alleged situation and/or location and, thereby, unfairly prejudiced [Berrios’] case.”
After the trial, a juror allegedly indicated to Berrios’ attorney, Rania Major, that jurors improperly disregarded circumstantial evidence corroborating Berrios’ injuries.
“The jurors either disregarded Your Honor’s instructions that circumstantial evidence is permitted to be considered, made a decision against the weight of the evidence and/or wished for direct evidence such as emergency-room treatment or other evidence which did not exist,” Berrios’ appeal continues.
The appeal also notes that the trial transcript isn’t available yet.
“All of the notes of testimony have not been received, so counsel is unable to allege other and/or more specific errors of law at this time. Counsel respectfully requests an extension to file a supplemental motion after these notes have been received.”
As of presstime, Berrios’ appeal for a new trial was pending before Sitarski. If she denies his request, Berrios plans to appeal to the Third Circuit Court of Appeals.
Michael R. Miller, a city attorney, would say only: “We believe the jury made the right decision in this case.”
On Dec. 7, Miller filed a seven-page reply, urging Sitarski to deny a new trial for Berrios. According to the filing, there were no errors during Berrios’ November trial that necessitate a new trial.
Miller’s filing also states that granting Mendez an opportunity to testify wouldn’t ensure a better outcome for Berrios.
“Assuming arguendo that Mr. Mendez would also testify in favor of [Berrios], he could not do so in any meaningful way, since even [Berrios] admits that Mr. Mendez was highly intoxicated during the incident and that he was busy fighting police officers — a crime for which he was convicted — during [Berrios’] arrest,” the filing states.