The trial of Abel Cedeno, the bullied Bronx gay teen charged with manslaughter in a 2017 high school classroom fight that left one student dead, another slashed, and student witnesses screaming in alarm, was this week set over to April 18 by Judge Steven Hornstein for still more pre-trial motions.
Assistant District Attorneys Nancy Borko and Paul A. Andersen and defense counsels Christopher R. Lynn and Robert J. Feldman squared off in court on February 25 on a host of issues, most of which Hornstein ruled had to be determined by the trial judge. The DA is asserting that witnesses are afraid of defense counsel. The defense says that the witnesses are afraid of members of a gang that they say the victims belonged to.
Defense wants the opportunity to interview all the eyewitnesses to the alleged crime. Borko said that the eight she has spoken to — or their families — have indicated they do not want to speak to the defense.
Lynn told the court, “We need all those kids and the three adults in the classroom to testify.” He believes that the combination of witness testimony and cellphone video of the altercation will show that “it was Abel who was attacked” before defending himself with a knife, killing Mathew McCree, and wounding Ariane Laboy. Cedeno’s attorneys are mounting a defense of “justification” or self-defense.
Feldman said in court, “If these 35 witnesses are not brought into court, there cannot be a fair trial. Justice requires that each and every witness be compelled to testify.”
The day after the proceeding, Lynn said, “I’m requesting that Judge Hornstein issue material witness orders for the kids and teachers using information from the city Department of Education that would compel all 33 kids and three adults to appear April 18 under threat of contempt.” He cited Criminal Procedure section 620.30.
The defense holds that Cedeno, who was 17 at the time of his arrest and had a lengthy history of being bullied in school since the sixth grade, knew the attackers as gang members and feared them. The video appears to show him defending himself with the knife after being pummeled by McCree and then Laboy.
Defense wants a closed courtroom for the witness testimony because Cedeno’s attorneys say the students and teachers who saw the fight fear retribution from the gang that McCree and Laboy belonged to. McCree’s mother, Louna Dennis, has insisted that her son “was no bully, no gang member,” but defense counsel say that Facebook posts and experts in gang-related issues engaged by the defense will contradict that.
Lynn and Feldman are also seeking a special prosecutor in the case, claiming that the district attorney mishandled two cases against Kevon Dennis, the deceased’s brother, who had been cited for trying to jump Cedeno inside the courthouse in 2018 and with armed robbery of student witnesses immediately after the September 2017 fight that ended in his brother’s death. That latter case was dismissed by the trial judge, who cited a lack of evidence in the grand jury record — even though Dennis’ co-defendant, Jonathan Espinal, is still charged. The case against Dennis could have been re-presented to the grand jury but DA Darcel Clark chose not to, and defense counsel hold that is due to her not wanting to complicate the people’s case against Cedeno. The DA never sought witness-tampering charges against either Dennis or Espinal.
The Bronx’s chief administrative judge, George Silver, is supposed to decide the defense motion for a special counsel within two weeks.
Clark filed papers accusing Lynn and Feldman of “professional misconduct” for speaking to the press — Gay City News, specifically — about the Dennis case, which was eventually placed under seal.
While the DA insists the Dennis case “is not relevant” to the Cedeno case, Hornstein said that “there may be relevance.” The DA sought a protective order limiting the disclosure of discovery to the press. Hornstein would not issue a gag order but emphasized that material under seal had to stay under seal.
The DA is also attacking the defense for the Gay City News reporting on Laboy’s deposition in his civil suit against the city and Cedeno in which he related what this reporter termed a “preposterous” version of events contradicted by the video tape. But the DA said in her filing that this disclosure from a public document obtained in discovery (and not under seal) shows that the defense is willing to “encourage ‘a substantial risk’ of ‘unjustified annoyance or embarrassment’ to the People’s witnesses by denigrating their sworn testimony” on what prosecutors term “the senseless killing of his best friend.”
Defense has repeatedly sought an order of protection for Cedeno, who is out on bail, and his family from Kevon Dennis and been rebuffed by the DA and the court. Cedeno is provided with an NYPD protection escort to and from court and had to move to an undisclosed location.
Defense also wants Sanford Rubenstein, attorney for Ms. Dennis, to reveal the source of a video of the classroom fight that he released to the media. Defense say whoever took the video is an eyewitness.
Hornstein said he didn’t have the power to order Rubenstein, who accompanies Ms. Dennis to the proceedings, to do anything.
Ms. Dennis, speaking after the proceeding with her attorney, said, “I’m anxious and depressed, but I have to be strong. I have to represent my son. I am my son’s voice.”
Rubenstein is basing his suit on the lack of metal detectors in the school and lack of enforcement of the state and city anti-bullying laws. On that latter point, Cedeno, whose mother had complained about her son being bullied for years, seems to agree.
Standing with his mother and sister after the proceeding, Cedeno said, “Just after this incident, another gay boy in the school tried to hang himself in the staircase. These are the things that are happening. People don’t like to admit it.”
Cedeno’s Bronx school was closed after the incident, and, citywide, more students are being made aware that they are entitled to transfers when a school environment becomes intolerable for them.
Defense counsel say that they are ready to go to trial and that the DA is responsible for the repeated delays.