Participants in false arrest trial seek vindication

Police officers arrived, and fighting broke out -- with David Neal Mack against four officers, at one point.

Then two officers turned on each other.

Five years later:

*Cariol J. Horne has been fired from her job as a police officer for interfering with another officer who was struggling with Mack, among other charges.

*Gregory M. Kwiatkowski, the officer who struggled with Mack, saw his name dragged through the mud -- accused of punching Horne and brutally beating suspects -- by Horne's lawyer in newspaper interviews, on radio shows and at public meetings.

*Mack said he continues to suffer physical pain from his arrest, which he relives in nightmares. "I ended up having high blood pressure," he said.

*Five police officers -- who insist they acted professionally -- have appeared at hearings, depositions and now a trial over what happened on that November 2006 morning, amid a cloud of anger from Mack's supporters in the community.

And it was all over a $626 check.

In fact, a week after the confrontation, the woman got her money when the federal government cut her a new check, she said.

>Years of waiting

But everyone else has waited years for what they want: monetary damages, vindication, or just to tell their side of the story.

For the past two weeks, they have gathered before State Supreme Court Justice Tracey A. Bannister in a Buffalo courtroom to testify in Mack's false arrest and assault lawsuit against the police officers.

One thing seems clear even before the jury returns a verdict, expected this week: Some may never fully recover from what happened that morning.

Horne testified on Jan. 24, the first day of the trial, and she has come back to court every day since then to watch the rest of the proceedings.

Horne, 44, now lives with three of her children in a subsidized apartment, relying on child support and food stamps to get by. She said she cannot afford to fix her own fire-damaged home, now boarded up and unlivable, in the Broadway-Fillmore neighborhood.

"I wake up in the middle of the night and think one day someone's going to listen to me," she told The Buffalo News. "I may not recover financially. But I think one day somebody will listen."

Horne said she still suffers from a shoulder injury from the encounter at Mack's house. She underwent rotator cuff surgery. But since being fired from her $59,949 job as a police officer -- and now with only Medicaid providing her health coverage -- she has not sought further treatment.

Horne said she has felt "a sense of relief" watching Anthony L. Pendergrass, Mack's attorney, question her former co-workers, who whom she does not speak.

Horne and Kwiatkowski gave conflicting accounts about what happened between them on Walden. Kwiatkowski and Horne responded to the scene in separate police cars after hearing a call for help from the first officer on the scene.

As Kwiatkowski helped to escort Mack out of the house, Mack continued resisting, and the two fell on the ground. Horne said Kwiatkowski then held Mack in a chokehold and that Mack was in distress, so she grabbed Kwiatkowski's arm to stop him.

Kwiatkowski said he was appropriately restraining Mack -- around his shoulders -- after Mack reached for his gun.

And in other police officers' accounts, Horne jumped on Kwiatkowski's back.

The Police Department believed the other officers.

"People can see I'm telling the truth," she said of the trial. "It doesn't give me my job back."

Still, she regrets some of her actions.

"If I could go back, I would do the same thing at 707 Walden," Horne told The News. "I feel a man's life is worth more than a job.

"But because of my children suffering, the things they've had to go through, I probably would have taken the 10-day suspension," she said, rather than fight the charges during the Police Department's disciplinary hearing against her.

>A second trial

The Mack trial is Kwiatkowski's second trial since December.

Kwiatkowski lost his defamation lawsuit against Pendergrass, and he received no monetary damages.

But Kwiatkowski did win vindication when the judge in that case found he proved by clear and convincing evidence that Pendergrass made eight statements about him that were defamatory and false. Kwiatkowski failed to prove, however, that Pendergrass knew that the statements were false when he made them or that he acted in reckless disregard of the truth, so the verdict favored Pendergrass.

As in Kwiatkowski's earlier trial, the Mack trial has put Kwiatkowski and Pendergrass face-to-face amid testy courtroom exchanges.

"You choked him for 20 seconds, held him by his throat as his children watched his life seep out of him," Pendergrass charged during his questioning. "Isn't that right?"

"Absolutely incorrect," Kwiatkowski replied.

"We were acting very professionally, Mr. Pendergrass," he said. "It was a chaotic, dangerous situation."

Pendergrass' questioning remained aggressive.

When Pendergrass brought up inconsistencies in the police officers' accounts -- like which officers were inside the house and how they escorted Mack out -- he would ask, "Which one of you is lying?"

Kwiatkowski bristled when Pendergrass referred to Mack's trial as a "high-profile case."

"This was a run-of-the-mill, routine arrest," Kwiatkowski said on the stand during questioning from Pendergrass. "You turned it into a circus."

"This case was your client stealing a check," Kwiatkowski said.

"Your client made it chaotic before I got there and until he was put in the police car," he said. "And Cariol Horne made it even more dangerous and chaotic."

Even the case against Horne was "a run-of-the-mill disciplinary hearing" that Pendergrass escalated into a career-ending event for her through his false, inflammatory accusations and lies, Kwiatkowski said.

"This was not a high-profile case, except for your doing, Mr. Pendergrass," Kwiatkowski said.

High-profile or not, Mack looked nervous when he took the stand.

"I hate being reminded of that day," Mack said, recalling the violent arrest witnessed by three of his sons. "It makes me mad just to think of it. I try not to think of it."

Mack, 59, has nine children. Mack said in court he has not held a job for some 20 years. He has collected Social Security himself since 2002. Mack has a history of minor crimes, including a 2008 conviction for resisting arrest. Charges from the November 2006 incident included resisting arrest, petit larceny, obstructing governmental administration and criminal mischief. A City Court judge dismissed all of the charges.

Mack and one of his sons, Wesley, allege false arrest and other wrongdoings by District Chief Kevin Brinkworth, a lieutenant at the time, and Officers Paul Sobkowiak, Kwiatkowski, Ralph Skinner and Anthony Porzio.

>Mailman alerts police

During questioning from attorney Michael B. Risman, who is representing the police officers, Mack said he did not require stitches or surgery after his arrest.

He said he asked Yolanda Wilkerson, his ex-girlfriend, why she was outside his house.

She said she had come for her check.

"I'm mad at her for coming over there without letting me know," said Mack, who told Risman he had another girlfriend at the time. What's more, Wilkerson owed him "a lot of money," Mack said.

As the mailman approached, Mack said, he directed him to put the mail in the mailbox. Mack then took the mail and went inside.

Within minutes, "I heard a banging at my door," Mack testified.

Sobkowiak, flagged down by the mailman and alerted to trouble brewing at the house, was at the door.

The officer testified that Wilkerson told him she saw the check. But she testified that she did not see the check and did not want police assistance.

The mailman did not testify at the trial, but at a hearing in 2007, he confirmed delivering Wilkerson's check.

Any doubt it was a Social Security check?

"No doubt in my mind it was," he said.

Sobkowiak used his nightstick on the door -- he said he tapped the door; Mack said he banged it -- and Mack came to the door.

"He said, 'Give me the mail,' " Mack said.

"You realize this is my house, and my mailbox, and my driveway you're standing on," Mack replied.

"Get me the mail," Sobkowiak repeated.

Mack said he closed the door, went inside his house, retrieved the mail and brought it out.

The mail he brought out did not include a check.

"Go get the rest of the mail," Sobkowiak said, according to Mack.

"That's the mail, right there," Mack said.

Sobkowiak testified he did not originally want to arrest Mack. The officer said he just wanted to get the check so he could give it to Wilkerson and then leave.

But an irate Mack started screaming obscenities, the officer said. By then, Brinkworth had arrived.

"He's telling us there's no reason for us to be there," Sobkowiak testified.

After further exchanges, with tension building, Mack again tried to close the door and head inside. But this time Sobkowiak pushed the door open and ended up in a violent physical struggle with Mack, with three of Mack's sons watching.

After a call for assistance, more officers arrived. Four of them struggled to arrest Mack, who they said was kicking and screaming and trying to "ball up" into a fetal position to avoid being handcuffed.

Porzio struck Wesley Mack, 26, as the son moved toward his father and the officers. He said he struck Wesley once in the left shoulder, because he tried to shove past him to help his father resist arrest.

"You hit him in the head," Pendergrass charged, as he questioned Porzio.

Porzio denied that.

"I go home to my kids every night," Porzio said on the stand. "I don't want that hanging over my head."

email: plakamp@buffnews.com