Phila. judge acquits former police officers charged with assaulting graffitist

Three years after they were charged with assaulting and breaking the jaw of a graffiti artist after he tagged a Feltonville building, former Philadelphia police Officers Sheldon B. Fitzgerald and James Hill 3d walked out of court Friday free and intent on returning to the force.

The dramatic acquittals were announced not by the Common Pleas Court jury that had heard testimony since Wednesday, but by Judge James Murray Lynn.

Excoriating David Vernitsky, the alleged victim and chief witness, as a "double-digit liar," Lynn granted defense motions for acquittal on all charges.

"Vernitsky was the one witness whose testimony established what occurred, and he was a patently unreliable witness," Lynn said.

Lynn said Vernitsky lied 10 times testifying on Wednesday: "His demeanor showed a flagrant disregard for the truth. This court is about justice and truth, and the truth is always the whole truth."

Lynn ruled on what is known as a directed verdict of acquittal, a defense motion made after the prosecution completes its case.

Like a jury's acquittal, it is not appealable.

"I am very disappointed that this was not decided by the jury," said Assistant District Attorney Meriah Russell. "But the judge made his decision."

At Lynn's ruling, families of the officers and Fraternal Order of Police officials erupted in a cheer before catching themselves and resuming a solemn courtroom demeanor.

Fitzgerald, 32, turned and embraced attorney Fortunato N. "Fred" Perri Jr.

Hill, 33, loudly clapped the back of his lawyer, Brian J. McMonagle, and shook hands.

Neither would comment to reporters, though they were clearly relieved.

"What a great birthday present," said a woman walking with Fitzgerald, whose birthday is Monday.

The trial stems from the former officers' contact with admitted graffitist David Vernitsky, 40, at 12:30 a.m. Aug. 26, 2007, moments after Vernitsky sprayed his alias, "Oz," on a wall at Fourth Street and Wyoming Avenue in Feltonville.

The charges were dismissed twice in 2008 at the preliminary hearing stage. But the prosecutor appealed, and the state Superior Court reinstated charges and ordered trial.

Russell ended her case shortly after noon Friday. After the jury was sent to lunch, McMonagle and Perri asked Lynn to intervene rather than let the jury decide.

"I'm asking you to stop this, Judge, acquittal on all charges," said McMonagle.

McMonagle called Vernitsky "despicable," referring to how Vernitsky laughed when he admitted in testimony that he lied to police, investigators, and the jury.

Vernitsky threw a final insult, McMonagle said, by writing his graffiti tag, "Oz," in an elevator and stairwell at the Criminal Justice Center.

Russell argued that Vernitsky's credibility was irrelevant because his injuries - scrapes and bruises, three lost teeth, a broken jaw and black eye - were too great to have been caused by what the officers claimed was a fall after they tackled him and he hit his head against a car.

Russell also alleged that the officers never filed reports of their contact with Vernitsky and falsified their computer log to show they were elsewhere.

Vernitsky had attended a wedding reception and told friends he was going to spray a congratulatory message to the bride and groom.

The officers did not arrest Vernitsky. Instead, they put him into their patrol car and dropped him off a block away where he was found by another wedding guest, who took him to the hospital.

That witness, Rebecca Herrschaft, testified that she and her husband were present when the police surprised Vernitsky and he ran.

Herrschaft's testimony also undercut Vernitsky's already tarnished story. She said she watched him get tackled but he fell behind parked cars and out of view. But Herrschaft said she did not hear her friend scream or the sounds of punches and kicks being thrown.