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.
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