Jurors urged to focus on alleged punch - Omaha.com
Published Thursday, April 19, 2012 at 1:00 am / Updated at 12:21 pm
Jurors urged to focus on alleged punch

Prosecutors urged jurors Thursday to focus on the few seconds not caught on camera the moment in which, they say, Robert Wagner punched an Omaha police officer outside Creighton University Medical Center.

Not the several seconds that can be seen on the surveillance video in which officers are seen kicking, punching and shocking Wagner with a Taser while he's on the ground.

Not the behavior that led the police chief to fire Omaha Police Officers Jackie Dolinsky and Aaron Pennington.

Not the concern that community members had with officers' treatment of Wagner.

“There is no doubt that Dolinsky and Pennington kicked Robert Wagner while he was down on the ground,” prosecutor Chad Brown said in closing arguments. “We're not here to say it didn't happen. We're not here to say it should be OK. But that, folks, is for another time.”

On this day in court, prosecutors and Wagner's defense attorney, Glenn Shapiro, squared off over whether the evidence established that Wagner assaulted an officer.

Wagner was upset after learning that his cousin and close friend notorious Omaha gang member Jimmy Levering was dying of gunshot wounds at the Creighton hospital. He was further irritated after police allowed City Councilman Ben Gray but not Wagner's girlfriend to enter the hospital.

Wagner started to leave but then turned around to confront officers. He recoiled when Officer Scott Zymball attempted to handcuff him.

Shapiro stressed that the surveillance video of Wagner's behavior and arrest did not show any punch thrown.

Shapiro also questioned whether Officer Zymball suffered any injury. Zymball testified that he had a headache and a sore neck from the punch. However, he gave conflicting versions of that in the days after the incident. In one report, he listed no injury.

The jury of two men and 10 women must decide whether Wagner is guilty of assault of an officer. If convicted, he faces up to five years of probation or five years in prison.

Shapiro suggested that officers mistook Wagner's recoil for a windup to a punch. Wagner didn't have time to throw a punch, Shapiro said.

“Watch the video,” Shapiro urged. “No chance that happened.”

Prosecutors, on the other hand, pointed out that 10 separate witnesses filled in the few-seconds gap where Wagner can't be seen on the video. All of them described Wagner throwing a punch.

Prosecutor Jim Masteller noted that that list included state troopers and a certified nursing assistant who would have no motive to lie for Omaha police.

Jurors didn't get to hear what might have been prosecutors' most damning evidence: an audio tape from a jailhouse phone call hours after his arrest in which Wagner tells a friend “I got mad and swung.”

In a recording of the phone call from May 29, 2011, Wagner's friend asks him: “How are they saying you assaulted a police officer?”

“I got mad and swung,” Wagner says.

“After they Tased you?” she asks.

“No,” Wagner responds.

Prosecutors didn't find that recording until Tuesday night. In turn, Judge Duane Dougherty ruled that the state hadn't met time requirements on turning over evidence to the defense. The judge ruled prosecutors couldn't use it, unless Wagner took the stand and denied swinging at police.

That effectively meant that Shapiro couldn't call Wagner to tell jurors his version of events.

Contact the writer:

402-444-1275, todd.cooper@owh.com

Contact the writer: Todd Cooper

todd.cooper@owh.com    |   402-444-1275

Todd covers courts and legal issues for The World-Herald.

Oil industry ad campaign mocks Nebraska cowboys who protested Keystone XL pipeline
In Omaha, bus tour calls for hourly minimum wage over $10
Fremont police searching for missing 56-year-old man
Prosecutor: Baby might be alive if day care employer had spoken up
NRA seeks universal gun law at national meeting
Beau McCoy calls Pete Ricketts a 'convenient conservative' for immigration stance
Omaha senator seeks minimum wage ballot measure
Agreement reached to end dog racing at Bluffs Run at end of 2015
Police probe bank robbery
Man accused of trying to open flying plane's door pleads not guilty
Ben Sasse shifts tactics, calls ad by Shane Osborn 'hypocritical'
Forecast on the upswing after Thursday's rain
EB Harney Street lane closed
Ex-UNMC student loses appeal; claimed program didn't make accommodations for his depression
Grace: Your older self has a request — use sunscreen
At NU's helm, J.B. Milliken built the university by building relationships with state leaders
City's Personnel Board is behind ‘ban-the-box’ proposal
Kelly: Started at a dining room table, Home Instead thriving at 20 with $1B in annual revenue
Richard Paul Dreier, 90, was wounded in attack during WWII
Police issue arrest warrant in teen's shooting death
Kelly: Huskers' glory days of '80s live on — on the small screen and on stage
New public employee pay data: Douglas, Lancaster, Sarpy Counties, plus utilities
Database: How much did Medicare pay your doctor?
Construction to start in May on West Broadway apartment/retail structure
3 Nebraska Board of Education candidates call for high standards
< >
Breaking Brad: 117-mph riding lawnmowers and 12-scoop banana splits
The Chicago White Sox are selling a 12-scoop banana split inside a full-size batting helmet for $17. You know what you'd call someone in Chicago who'd eat this? "Health nut."
Breaking Brad: Walmart beats Russia, stakes a claim on the moon
Russia is claiming it owns a section of the moon. If you follow the news, you know this probably doesn't end well.
Kelly: Started at a dining room table, Home Instead thriving at 20 with $1B in annual revenue
The idea that Paul Hogan had studied and then hatched at his mother's table was that older people, rather than moving in with relatives or to an assisted-living center, would much prefer to stay home instead.
Kelly: Huskers' glory days of '80s live on — on the small screen and on stage
The 1984 NFL draft was unusual for the Nebraska Cornhuskers, and these days it's remembered in the name of a rock band, the 1984 Draft. Tonight, the band is featured on the NFL Network.
Breaking Brad: Nebraska GOP candidates unified against naked squirrels
Some of these Nebraska campaigns are tilting pretty far right. At a recent forum, there was a consensus that we need to ban public dancing and clothe naked squirrels in public parks.
Deadline Deal thumbnail
7M Grill
Half Off Delicious Comfort Fusion Food & Drinks!
Buy Now
< >
Omaha World-Herald Contests
Enter for a chance to win great prizes.
OWH Store: Buy photos, books and articles
Buy photos, books and articles
Travel Snaps Photo
Going on Vacation? Take the Omaha World-Herald with you and you could the next Travel Snaps winner.
Click here to donate to Goodfellows
The 2011 Goodfellows fund drive provided holiday meals to nearly 5,000 families and their children, and raised more than $500,000 to help families in crisis year round.
Want to get World-Herald stories sent directly to your home or work computer? Sign up for Omaha.com's News Alerts and you will receive e-mails with the day's top stories.
Can't find what you need? Click here for site map »