Mineo Lawyers Say Police Tampered With Evidence

Brooklyn Federal CourtTwo photographs of the boxer shorts Michael Mineo was wearing the night he was arrested. The one on the left was shown to jurors in the criminal trial against the officer accused of sodomizing him. The one on the right, Mr. Mineo’s lawyers say, was not shown in court and is evidence that the shorts were tampered with.

Lawyers representing Michael Mineo, a Brooklyn man who said he was sodomized by New York City police officers as he was being arrested in 2008, have filed papers in federal court alleging that police investigators tampered with an important piece of evidence –- Mr. Mineo’s boxer shorts -– in order to protect the arresting officers from criminal charges.

Mr. Mineo’s lawyers say the investigators altered the shape of a tear in Mr. Mineo’s boxers from one with an L-shaped flap to one with a square hole.

The boxers played a prominent role in the criminal trial of three of the officers earlier this year, in which prosecutors had said that one of the officers, Richard Kern, sodomized Mr. Mineo with an expandable baton known as an Asp while arresting him in a Brooklyn subway station for smoking marijuana. The prosecutors said two other officers, Alex Cruz and Andrew Morales, helped cover up the abuse.

During the trial, experts called by defense lawyers testified that a square hole that investigators saw in Mr. Mineo’s boxer shorts could not have been made by the baton. They said a tear caused by a baton would have left an L-shaped hole, not the square hole jurors were shown in the boxer shorts. Lawyers for the officers suggested that Mr. Mineo might have cut out the material himself. The three officers were acquitted of all charges.

A spokesman for the Police Department, Inspector Edward J. Mullen, said, “It’s a preposterous charge.” A lawyer for the three officers declined to comment.

Mr. Mineo has also filed a federal civil rights lawsuit, and the court filing of the tampering allegations is part of that case, which is set to start next month.

In the filing, Mr. Mineo’s lawyers, Stephen C. Jackson and Kevin L. Mosley, said that two photographs they received as part of the discovery process were not presented in court during the criminal trial. They show that the boxers were “altered and partially destroyed in what can only be an effort to assist defendants in defending the criminal case, and now, the civil case,” the lawyers said.

In particular, they said, the two photographs “show proof positive that the underwear did not have a square hole when initially photographed, but had a perforation with an ‘L’ shaped flap, and that there was no missing material.” The tampering “could only have been done by agents of the City of New York,” the lawyers wrote.

Jerry Schmetterer, a spokesman for the Brooklyn district attorney Charles J. Hynes, said that during the criminal trial, prosecutors had presented the evidence “we believed made our case.”

“We presented a series of pictures,” he said. “We actually presented the boxer shorts.”

Mr. Jackson and Mr. Mosley had scheduled a press conference for 3 p.m. Monday to discuss their allegations, but it was abruptly canceled when they were summoned to court by the judge in the civil case, Jack B. Weinstein.

Judge Weinstein did not stop Mr. Mineo’s lawyers from discussing the evidence, as the police officers’ lawyers had requested, but did say, “I respectfully suggest that you reconsider a press conference.”