By SAMUEL MAULL
The Associated Press
NEW YORK — One jury awarded him $76.4 million. Another called for $51 million.
But Darryl Barnes, who was shot and paralyzed by a police officer who was pursuing him, should get nothing, an appeals court ruled.
The state Supreme Court’s Appellate Division on Thursday threw out a lawsuit filed by Barnes, who said he was paralyzed from the waist down after he was shot by Officer Franz Jerome in the Bronx on Aug. 22, 1988.
Jerome, who was off duty, saw Barnes running with a Tec-9 semiautomatic pistol, identified himself as a New York Police Department officer and asked Barnes to stop, the judges wrote. After a chase, Barnes fired and Jerome fired back, hitting Barnes and causing severe spinal injuries, they said.
After a trial in April 1998, a jury awarded Barnes $76.4 million, which the trial judge reduced to $8.9 million.
The city appealed, arguing the trial court had improperly excluded proof that Barnes was a member of the Five Percenters, an anti-white, anti-police group that advocates violent resistance to arrest.
Barnes did not show up and testify at a second trial in March 2003, claiming he was too mentally and physically ill. The jury awarded him $51 million, which the trial judge reduced to $10.75 million.
The appeals judges said they reversed the second verdict and dismissed the case because Barnes, now 41, voluntarily stayed away from the trial.
Barnes’ lawyer, Robert Simels, said his client had not been free to leave a nursing home in New Jersey, where he had been sent because of his mental and physical problems.
But the appeals court said Barnes had not shown he was unable to appear in court or was mentally unfit to testify, and the trial judge had erred by letting Barnes’ lawyers introduce his testimony from a prior hearing.
By failing to appear, the judges wrote, Barnes denied the city a chance to question him on his claims that he was unfamiliar with guns and did not fire at the police officer.
“The plaintiff was able to frustrate the city’s fundamental common-law right to cross-examine a witness,” the appeals court wrote.
Despite his denials, Barnes pleaded guilty to first-degree attempted assault using a deadly weapon. He was sentenced to five years’ probation.
Simels said Barnes intends to appeal. He said his client has been involuntarily hospitalized in mental institutions 14 times, contradicting the court’s view of his fitness to testify at trial.
City lawyers said they were pleased the appeals court had dismissed Barnes’ case.
“It should go without saying that a criminal who shoots at a police officer and endangers the community should not be rewarded with huge verdicts,” Corporation Counsel Michael Cardozo said.