‘Fishy, Smelly’ coincidence didn’t deter District Attorney’s Office from prosecuting drug case


Law professor believes there’s enough uncertainty in the case that it should be investigated by an outside party such as the attorney general.

Erie County District Attorney John Flynn campaigned on a promise to improve relations with the Buffalo Police Department and some suburban law enforcement agencies by prosecuting tougher cases.

“Their main concern was that they didn’t feel this office was taking on the tough cases, that they wanted cases that were wrapped up and tied with a bow,” Flynn told the Buffalo News when he took office in January 2017.

But some wonder if Flynn and his prosecutors have taken his promise too far.

Case in point is Bruce McNeil.

McNeil alleges in a federal lawsuit that Buffalo Police officers lied about finding crack cocaine in the backseat of their cruiser by where McNeil sat in retaliation for him attempting to file complaints against them.

The city has denied the allegations made in McNeil’s civil suit and filed a motion to dismiss.

McNeil, whom officers stopped off Broadway on Memorial Day 2019, refused to accept a plea deal because he said he was innocent.   

Buffalo City Court Judge Diane Y. Wray acquitted McNeil after a bench trial in October 2019. The trial transcript states that Wray found that the case had “several discrepancies” and “too many questions not answered.” 

Even Flynn characterized the chain of events as “fishy” and “smelly,” yet his office still prosecuted the case.

All said and done, this case raises serious questions about the prosecutorial judgment of the Erie County District Attorney’s Office, said Bruce Green, a Fordham University law professor and former federal prosecutor with a strong background in legal ethics.

“You’re supposed to do justice and part of your job is to weed out bad cases,” Green said

“You’re a gatekeeper. So, here by the prosecutor’s own concession the case was ‘fishy.’ There were a lot of reasons to think that the police were lying.”

Flynn declined to be interviewed for this story.

During an animated press conference this month, Flynn said it is implausible that police officers planted the crack cocaine in retaliation for McNeil twice attempting to file complaints against the two officers, John Davidson and Patrick Garry.

“I can’t make that leap. It’s huge!” Flynn said.

‘Smelly coincidence’

News 4 Investigates first reported about the McNeil case in August.

Early on May 27, 2019, McNeil drove to a convenience store off Broadway to grab a coffee and newspaper.

Officers Garry and Davidson pulled him over, citing in the incident report that McNeil’s vehicle had a nonfunctioning license plate bulb. McNeil said the officers would not tell him why they pulled him over.

McNeil said one officer asked if he had anything in the car. He said he told them there might be marijuana ashes in the ashtray; police alleged that there was a marijuana blunt in the ashtray.

The officers checked his license and registration, returned to McNeil’s car and asked him to exit. He was searched and handcuffed before being placed in the back of the police cruiser.

The officers searched his vehicle.

At trial, Officer Garry said they decided to not charge McNeil for marijuana possession. In fact, they didn’t even confiscate the marijuana blunt they alleged was in the car, according to the trial transcript.

McNeil said he felt violated by the stop. He noticed some damage to his hood because of the police search, so he called 9-1-1 to file a complaint against the two officers. The dispatcher told him he had to file the complaint at the C District police station.

The civil complaint states that McNeil attempted to file the complaint with Lt. Patrick Boice.

Instead, McNeil accuses Boice of threatening to charge him with possession of marijuana if he did not leave.

McNeil denies that he had a marijuana blunt or any other drugs in the car.

“How can I be arrested [for] drugs if there are no drugs?” McNeil told News 4 Investigates in August.

McNeil did leave, but his mother demanded they return to get the complaint filed.

The second time they met with Lt. Jenny Velez, who McNeil said had reminded him that he could be charged with marijuana possession if he did not leave.

Simultaneously, a group of officers, including Garry and Davidson, had gathered in a nearby room. The civil suit accuses the officers of conspiring to have McNeil arrested on felony crack cocaine possession.

Indeed, Davidson told Velez that they had swept the police cruiser at the station and found the crack cocaine in the same vicinity of where McNeil sat.

Police arrested McNeil at the station on a felony charge of possession of crack cocaine.

“It’s a smelly coincidence, I agree with that, okay?” Flynn said about the timing of the alleged crack cocaine discovery and charging McNeil.

“It just happened to coincide with when he came in to make a complaint. Again, I agree, it looks fishy,” Flynn added.

But the “smelly” and “fishy” chain of events did not cast enough doubt in the minds of the Erie County prosecutors.

Who do you believe?

Judge Wray had concerns about the case, according to the trial transcript.

She pointed out that the two officers did not follow Buffalo Police Department procedures by sweeping the police cruiser directly after removing McNeil from the backseat. Garry and Davidson did not search their car until they returned to the police station.

“So, something’s not right here and they don’t seem to be following procedure,” Wray said at trial.

“They didn’t say they had cleaned it out and looked right after they put Mr. McNeil back. So, to a certain extent, did they clean it out after the stop before Mr. McNeil? They certainly didn’t clean it out right after.”

Anthony Rupp, McNeil’s attorney, described the officers’ account as “outrageous.”

“Somehow they claim that while he was in the squad car he managed to get the cocaine out of his person that already had been searched and leave it there,” Rupp said.

Although the Erie County District Attorney’s Office is not a defendant in McNeil’s lawsuit, his complaint accuses prosecutors of moving forward with the case despite having knowledge that the “the charges brought by officers Davidson and Garry were false, and that the Defendants planted the crack cocaine evidence to charge Mr. McNeil with a crime he did not commit…”

The allegation clearly agitated Flynn.

“There is zero evidence that these officers planted those drugs,” Flynn said at his press conference.

Green, the Fordham University law professor, said that there is enough uncertainty about the underlying facts that “you definitely don’t go forward with a case like this.”

“If you believe the officers, they found drugs that McNeil left in the back of the car,” Green said. “If you believe McNeil, the officers lied about finding drugs in retaliation for him making a complaint about their conduct.

“The question that all this raises for me is assuming the prosecutors knew at the time that they were bringing the case about the sequence of events about McNeil’s complaints at the police department, whether they should have gone forward with the charges?”

A spokeswoman for Flynn told News 4 Investigates by email that the district attorney would still have prosecuted the case despite the uncertainty over what really happened.

“Our office believes that the officers conducted a proper sweep of the police vehicle before Mr. McNeil was placed into the vehicle and after he was released,” a spokeswoman said.

Independent investigation needed?

During his press conference, Flynn attacked McNeil’s lawsuit for containing factual errors and said his office never believed the crack-cocaine charge was false.

In fact, Flynn characterized the allegation that the officers planted the drugs as a “Niagara Falls leap.”

“That is such an outrageous thing to do, okay?” Flynn said, “that without any evidence at all, okay, it’s not plausible.”

Green has a complete opposite take. Of course, it’s plausible that police might plant drugs on someone in retaliation for filing a complaint, he said.

In addition, Green said there is circumstantial evidence about the timing of the events, “that would lead you to conclude that the police were not being truthful.”

Green, who was provided with court records and watched Flynn’s press conference, said that if Flynn “doesn’t concede that then I think he’s putting his head in the sand.”

“The idea that Mr. Flynn can’t wrap his head around the possibility of police perjury, and that it’s so implausible that he’s not going to even entertain the possibility, doesn’t sound like very good prosecuting to me,” Green said.

“This sounds like a case where somebody ought to be investigating. If he can’t do it because he has relationships with the police, then he ought to refer it to the attorney general or somebody else who can.”

McNeil’s attorney sees Flynn’s comments about the case as a vindication of his federal lawsuit.

“He’s saying it’s a smelly coincidence, it looks fishy and it smells,” Rupp said.

“And yet under his command that case was tried. And I have a problem with that.”

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