A Criminal Trial

THE VERDICT. At 4pm on Friday, December 14^th, twelve grim-faced jurors, led by their official keeper, Maurice Latimer, and flanked by their two alternates, filed out of the oak-paneled 195-seat courtroom on the second floor of the Greene County Courthouse. The seven women and five men took the dozen steps leading into the little chamber marked “petit jury.” There, sequestered, they began deliberating over the culpability of James R. Pine for the fatal beating, on October 31, 2006--Halloween--of Michael Formichelli Jr. There, for the first time, after eight days of trial, they could talk to each other about whether Pine was guilty, as charged, of the crimes of first-degree assault and first-degree manslaughter. At last they could voice hunches and conclusions they had formed, but had been forbidden to discuss with anybody.

At 4:55pm the jurors, at their behest, were back in the courtroom, seeking guidance from the judge, George R. Bartlett III. As a matter of law the judge could respond only in the open, on the record, in the presence of the prosecutor, District Attorney Terry Wilhelm; the defense attorney Richard Mott; the court clerk, Walter Becker; the court stenographer, Coleen Neal; two deputy sheriffs; and the defendant. Although Judge Bartlett had instructed them at length just before they retired for deliberation, the jurors sought clarification of the nature of the crimes for which Pine had been prosecuted. Though prohibited from indulging in interpretation, Judge Bartlett restated how those felonies are defined in the law: Manslaughter in the first degree occurs when an individual, intending to inflict serious physical injury on another, acting alone or in concert, does inflict serious physical injury, which leads to death. Assault in the first degree occurs when an individual, intending to inflict serious physical injury on another and, acting alone or in concert, does inflict such injury, and does so with the aid of an instrument. Sustained premeditation need not precede the attack.

At 5:30pm Judge Bartlett summoned the jurors back to the courtroom. Responding to an appeal from the prosecutor, he proceeded to review the legal formulation of the concept--ultra-sensitive in this case--of “acting in concert.” He re-minded the jurors that “your verdict on each count…must be unanimous. In order to find the defendant guilty, however, you need not be unanimous on whether the defendant committed the crimes personally or by acting in concert with another, or both.”

At 6:10pm the jurors asked for another refresher. They returned to the courtroom’s jury box for a replay of audiotapes of emergency (911) calls that had been made, as the fatal events were unfolding, by and to Pine’s acknowledged confederate.

At 9pm Judge Bartlett called the jurors back to their courtroom box. This time the subject was progress in deliberations. Did they wish to carry on, in the expectation of coming to an agreed conclusion that night? Or would they prefer to adjourn until Monday morning? They opted to continue.

At 10:10pm the foreman sent out word that he and his fellow jurors had reached a verdict. Back they filed, grim-faced as always, to their seats. Speaking in the presence of the usual court officers along with a dozen spectators, the foreman said “Guilty on both counts.” After polling the jurors, who affirmed their concurrence with that dual verdict, the judge thanked them for their service and sent them home.

Pine was led out, past seven relatives and friends, by his escorting sheriff’s deputy. Back he went to the jail cell, right next to the courthouse, where he had been incarcerated for 13 months.

Prosecutor Wilhelm said “justice was done.” Defense Attorney Mott said an appeal is “under advisement.”

THE LEAD-IN. Throughout the trial, the jurors looked pensive and sober. Perhaps they were vexed, some spectators speculated, about the many hours when they were not hearing the case—hours when they were sequestered, idle, while the lawyers talked with the judge in handled chambers, and hours, cumulatively, when they sat in the jury box while the lawyers and the judge talked in whispered sidebars. But after the lawyers had delivered their summations and the judge had given them his instruction, when they were free at last to talk to each other about the case, the jurors learned that their grim faces reflected shared feelings of strain driven by felt responsibility and uncertainty. So common was the feeling of anguish that the jurors made a pact to avoid discussing the case afterward, with outsiders, even though they were free at last to do so.

Some parts of the story were easy to assimilate. The parts that related most directly to culpability, however, must have been daunting.

The events that led to the death of Michael Formichelli Jr, at age 39, began with telephone calls. According to uncontradicted testimony in court, Formichelli had driven from Hudson early in the evening of Halloween, 2006, to 196 Dubois Road, a small apartment building in west Catskill near the Rams Horn/Livingston sanctuary. There he entered the apartment of a woman with whom he was well acquainted. Nobody was home. He started making calls. A dozen or more went in rapid succession to the woman’s cellular telephone. She received but did not answer those calls, as she was escorting her 14-year old daughter, Christina, on a Trick or Treat outing. Another call went to the mother of James Pine, who in turn alerted her son. Another went to Pine himself.

Pine got that call while he was towing a car, his grandfather’s, back home for repair work. When the caller identified himself as “Mike,” and when the ringtone indicated that the call came from the woman’s apartment, an exchange of pleasantries ensued. Pine recognized the name from what she had told him, as she and Pine were close friends.

THE WOMAN at the ‘center’ of James Pine’s trial, Mary Hyer Seeley, 41, is NOT related by marriage or former marriage to Greene County’s new sheriff, Greg Seeley, or to Catskill’s Village President, Vincent Seeley. She is the grand-daughter of a once-prominent Greene County attorney, and is the mother of three offspring, aged 24, 21 and 14. She has worked as a playground superintendent in the Catskill Elementary School (old campus), as a teacher’s aide in Hudson schools, as a waitress in the former Half Moon Club in Hudson, and as a pet groomer. Among the men in her past was Bruce Bart of Tannersville, the tattoo artist who was known professionally as “Black Bart.”

Ms Seeley testified that she and Formichelli were connected amorously, and to some extent financially, for some months in 2005-06. After the breakup, she said, they still communicated frequently, and the messages from his side were “not friendly.” Indeed, he had voiced threats which she took seriously enough to report to the Hudson Police. Meanwhile, with Pine in the course of some six years she had engaged in an intermittent, “non-exclusive” amorous relationship; and in recent months he had unfettered access to her apartment.

The call prompted Pine to race the rest of the way home. There he invited his friend, Michael Deyo, who had been steering the towed car, to accompany him to the woman’s place. He also took from his garage a three-foot-long breaker bar, which is normally used to pry tires loose from wheels. He put that iron implement on the back seat of his 1994 Lincoln Continental.

Pine and Deyo drove fast to 196 Dubois Road. They mounted the stairs to the woman’s third-floor apartment, found her door open, entered, and encountered Formichelli. A brawl ensued. It spilled over into the hall and then the three men tumbled, kicking and punching, down two flights of stairs.

After they crashed to the ground floor, Formichelli managed to get to his feet and start walking, zig-zag, away from the building. The two men started to follow on foot, then got back in Pine’s car. They caught up with Formichelli a few hundred yards away, outside 15 Abeel Road, where the second phase of the fight took place. It was there, in a flower garden in front of the house, that the breaker bar came into contact with Formichelli’s skull. Several blows were struck. They did not knock him out completely. They did--according to expert testimony--make the fractures that proved, three days later, to be fatal.

THE PROBLEM. Who swung that lethal breaker bar? For the jurors that question could not have been easy to answer.

No fingerprints or other physical evidence served to identify the weapon wielder.

No independent witness saw the fatal beating. Some residents of the 196 Dubois Road building, however, did attest to seeing Pine take the bar out of his car there, then put it back when he and Deyo drove off in pursuit of Formichelli. In addition, a late-arriving spectator at the Abeel Street site said he saw Pine put an object into the trunk of his car.

Dean Dow, who lived in the Abeel Street house, testified that he was home alone on the fateful evening, studying in his den after returning from a jog. At about 7:40pm, in response to “large pounding” he opened his front door and beheld a “chaotic” scene, occupied by a “young woman” on his porch and several youngish men nearby in his yard. One of the men came aggressively onto the porch and belligerently refused to identify himself (“I don’t have to tell you shit”). Dow ordered him--Deyo, he learned later--to “get off my property.” Dow also saw a man lying in the flower bed just off the porch. He approached the man, who was bleeding but conscious and coherent (“I’ve been beaten up”). With the help of a man who was standing nearby, Dow moved the putative victim to a more comfortable spot pending the arrival of an ambulance. The helper was James Pine. He was not, at the time, holding any instrument.

After Formichelli had been taken away by ambulance (he was still conscious, the driver reported; but after five minutes lapsed into a coma), Pine and Deyo were interviewed separately by policemen. Both lied. They gave separate signed statements depicting Formichelli as an intruder and as the initial aggressor in a brawl. While acknowledging that they pursued him and that he was punched and stomped on until he was subdued on the ground, each man explicitly denied using any weapon. Both were charged initially with suspicion of second-degree (weapon-less) assault. After Formichelli died, however, the charge was changed to suspicion of murder. The charge against each man said, awkwardly, that “acting in concert” he did “strike Michael Formichelli in the head with a metal pipe, punch him about the head and stomped upon the victim’s head, thereby causing skull and brain injuries which result in the death of Michael Formichelli.”

THE DEFENDANT who sat next to defense attorney Mott throughout the trial, clad in a conservative gray business suit, is a brawny mechanic of 38, single, never married but the father of two children, who at the time of the fatal fight was living with his parents at 346 Five Mile Woods Road, Catskill. His presence in the courtroom was not a novelty. Back in 1996 Pine had faced five criminal charges arising from behavior toward his then girlfriend, Carla Bagshaw: attempted sodomy, criminal possession of a weapon, assault (3d degree), unlawful imprisonment, and criminal possession of stolen property. Prior to the trial, and after negotiations with the District Attorney, he entered a Guilty plea to the criminal possession count. The other charges were dropped and he was sentenced by the presiding judge to five years’ probation. Twenty-two months later he was back in court for a judicial hearing over whether he had violated the terms of his probation. When an affirmative judgment was rendered, Pine was then obliged to serve the prison sentence for which he had been convicted in 1996: a term of between 18 and 54 months. Among witnesses at that probation-violation hearing were Ms Bagshaw and her friend Mary Seeley.

On both of those occasions, as well as on the present occasion, Pine’s trial was conducted by an outside judge. Greene County’s two home judges recused themselves on account of their friendship with Pine’s mother, a courthouse employee. And for those earlier trials the judge, visiting from Schoharie County, was George W. Bartlett III.

After serving his VOP sentence, Pine fell afoul of the law again, this time in Columbia County. He was convicted of fourth-degree grand larceny, sentenced to an 18-36-month prison stretch, and released in August 2005.

Carla Bagshaw, incidentally, was the older sister of Holly Bagshaw, who in 1998 was the sweetheart of Timothy “T J” Hall, 19, of Watervliet, who was being prosecuted, in the same courtroom where Pine appeared last week, for murder. Hall was charged with shooting to death Lesley (“Panther”) O’Connor, following a scuffle inside the Quarterback Club, a Catskill night spot, run by Catskill postmaster Donald Stegall, that has since become GreeneLand’s drug rehabilitation center. Summoned as a witness to that fatal event, Holly Bagshaw refused to testify. Her refusal evoked a 30-day jail term for contempt of court. Her paramour, in the teeth of strong evidence of guilt, was acquitted. His defense attorney was Richard Mott.

At that point Deyo changed his story. He had lied, he said in a second statement to police, “to help my friend Jimmy” at a time when he, Deyo, “didn’t think the guy would die.” Actually, he had urged Jimmy at the start not to bring along the breaker bar, had later urged Jimmy not to take that weapon out of the car, and finally had urged him (“I’m yelling at Jimmy that I can’t believe all this shit happened over Mary”) not to hammer Formichelli, prostrate on the ground but struggling, with that weapon.

In June, District Attorney Wilhelm took the case before the county’s grand jurors. They indicted Deyo for first-degree assault and Pine for first-degree manslaughter as well as assault. Deyo, advised by Chief Public Defender Dominic J. Cornelius, entered a plea of guilty. Pine, represented by Richard Mott, entered pleas of Not Guilty.

When called to the witness stand at the trial, Deyo again portrayed himself as Pine’s junior acting-in-concert partner. It was Pine alone, he said, who bashed Formichelli with the breaker bar.

On cross-examination, defense attorney Mott hammered against Deyo’s (and prosecutor Wilhelm’s) version of responsibilities. He called Deyo’s attention, and the jury’s, to the change of stories. He emphasized Deyo’s self-interest in putting the blame on Pine. And he concentrated on those emergency (911) calls that Deyo made and received during the second brawl. While summoning police help (and mentioning that his brother was a Catskill cop; and mis-naming “Vietnam Road” as the scene of action) Deyo put himself verbally in the midst of the fighting: “I think we just knocked him out cold”; “I fucking rapped him in the head and he’s fucking laying on the ground”; “if he gets up again I’m gonna fucking hit him again because he knocked me right down the stairs”; “You gotta hurry up and get here ‘cuz I’m gonna end up killing this guy.”

With regard to that incriminating verbiage, prosecutor Wilhelm argued that a feverishly agitated emotional state, gripped by concern over the potentially lethal turn of events, made Deyo “pronoun challenged.”

Then, on the final day of testimony, Mott put his client on the stand. Pine maintained that it was Deyo who swung the breaker bar.

Whether the jurors—all, some or none—believed the prosecutor’s version of events is not evident from their verdict. They had been instructed and reminded by Judge Bartlett that they need not agree unanimously on who wielded the weapon that made the attack on Michael Formichelli a first-degree assault. They accordingly could decide that Pine and Deyo both seemed to be guilty of the assault charge, having acted in concert, apparently with intent, when Formichelli incurred skull fractures from being beaten with the breaker bar. And even if they could not be sure that Pine alone inflicted the skull fractures, they could feel confident that it was Pine who had initiated the drive to Dubois Road, Pine who had brought along the breaker bar, Pine who apparently was seen putting that weapon in his trunk, Pine who had a history of felonies and stretches in prison. Similarly, since Formichelli’s injuries from the battering proved to be fatal, guilt on the assault charge paved the way for a finding of guilt on the manslaughter charge.

SENTENCING. Still to be decided by Judge Bartlett is the length of time both Pine and Deyo shall spend in prison.

For Michael Deyo, prison time will be in the range of five years to 25 years. That is the prescribed time of incarceration for an offender who has been convicted of first-degree assault and who has not previously been convicted of a felony. Deyo’s attorney, Mr Cornelius, will likely build his case for lenient sentencing--a short term--on the basis, of Deyo’s pivotal contributions (not preceded by a bargain with the prosecutor over what he would say at his friend’s trial) to the conviction of Pine. If he gets the minimum sentence, and if he earns credit for good behavior in prison, Deyo could be released in 2012.

For James Pine, the prison term will be longer, even though his two sentences for two crimes will likely be served concurrentoly. Previous felony convictions qualify him as a repeat offender. Consequently, the minimum sentence for his Halloween Night 2006 crimes becomes eight years. The maximum would be 25 years.

The designated date for sentencing of both men is next February 14^th. Valentines Day.