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The Prosecution of Thabo Sefolosha
On an April night in New York City, the Hawks forward was injured and arrested by the NYPD. This is the exclusive story of how, in the aftermath, he became what he never wanted to be: a civil rights symbol.
By Scott Eden
This story first appeared in 2015. Thabo Sefolosha has since filed a lawsuit against New York and five NYC police officers.
Five minutes and 22 seconds after Thabo Sefolosha came out onto the sidewalk from a Manhattan nightclub on the morning of April 8, his wrists were manacled behind his back and two policemen were steering him by his elbows toward the rear seat of a cop car.
In the days, weeks and months to follow, Sefolosha, a Swiss native of South African descent and a key player for the Atlanta Hawks, would retell the story of those five minutes over and over again — to his lawyer, his wife, his parents, his coaches, his teammates, the media, the jury, himself. In his memory, it doesn’t seem like five minutes. It doesn’t seem to him anymore like a space of time at all. It’s as if those five minutes won’t ever end. “There has honestly not been a day I haven’t thought about that night since it happened,” he says. “There’s no escaping from it.”
The team’s plane had landed in New York around 1:30 a.m. for a game against the Brooklyn Nets. Earlier that night, in Atlanta, Sefolosha had played 20 minutes against the Phoenix Suns in the nastiest, most belligerent game of the season. There were seven technical fouls. A Suns player was ejected. Now, at the Ritz-Carlton hotel in lower Manhattan, where the team was staying, Sefolosha didn’t feel like sleeping; he was too amped up. When he’d talked recently over the phone to his brother in Switzerland, he’d told him he was excited for the playoffs, which were starting in 10 days. He’d been to the NBA Finals once before, with the Thunder three years earlier, losing in five games to the Heat. Now, playing off the bench for the Hawks, who had clinched the top seed in the Eastern Conference, he wanted another chance at a title. He was a month from turning 31, old for the NBA. Who knew how many more opportunities he’d have. “Man, I’ve never felt like this,” he said to his brother. “We have a real shot. I’m going to give it all I got. I’m going to be a locomotive.”
A friend of Sefolosha’s, a sports agent living in New York who represents other NBA players, had texted, suggesting they meet at a place called 1 Oak in the city’s Chelsea neighborhood. Sefolosha had heard of the club — the kind of high-end, velvet-rope establishment that paparazzi encamp outside of in hopes of DiCaprio sightings — but he’d never been there. Sefolosha’s friend and teammate, Pero Antic, decided to go along. The club was becoming packed. They took a VIP table. At such tables, the only choice is to buy full bottles of liquor. They ordered one of Jameson and one of vodka. Sefolosha mixed his Jameson with Sprite; he had two or three of these. They got to talking with other clubgoers, whom they urged to pour themselves drinks from the bottles; there was no way Antic and Sefolosha could finish them. An hour passed. His friend the agent rose to say good night, and not long after he left, the house lights came blazing on and the music died. Everyone had to go, the bouncers said, giving no reason, and they all went, exiting orderly through the front door.
Emerging onto the street, they could see to the left what appeared to be a crime scene. Dome lights rotated atop police cars and emergency vehicles. There was a length of yellow tape and many uniformed cops shouting Clear the block! Everyone was being herded to the right, away from the yellow tape, down 17th Street toward its intersection with 10th Avenue, about 40 yards west of 1 Oak. Despite the cops’ instructions, people were coming out of the club and mingling in little groups on the sidewalk and in the traffic-blocked street, including Antic and Sefolosha, as can be seen in CCTV surveillance videos. People they’d met at their table were wishing them well in the playoffs. Someone said, “Bonne chance.” Sefolosha found himself talking to two women he’d met at the table that night, one of whom, he’d learned, had dated a current Hawk.
Now Sefolosha and Antic registered one cop in particular. He had a high-and-tight Marine Corps haircut. He was 5-foot-7. He was, according to witnesses, shouting: “Get the f— off my street.”
“Get the f— off my street,” the cop said again.
Antic is a bald 6-11 Macedonian, close to 300 pounds, with a dense black beard and a voice like a contrabassoon. A friend once described him as “resembling Xerxes,” the ancient Persian warlord. He tends to stand out in a crowd. Yet the cop seemed now to be focused solely on Sefolosha, according to the court testimony of a 1 Oak bouncer and that of the two women Sefolosha had met at the club. Standing 6-7 and wiry to the point of fatlessness, with a triangular face accentuated by a faint goatee, Sefolosha was wearing black jeans and a black hoodie. He wore the hood up. Sefolosha now said to the cop something along the lines of: “Relax, man. We’re going.” He and his group reached 10th Avenue. Many things were now happening at once. There was a livery cab, a black SUV, parked on 10th right at the corner. The driver asked whether anyone needed a ride. Sefolosha said yes. At one point Antic had wandered off from Sefolosha, but now here he was again, saying he’d found out that Chris Copeland, the Indiana Pacers forward, had just been stabbed. Outside the club! That’s what the crime scene back there was for! Could Sefolosha believe it? And now, according to trial witnesses, the one cop seemed to be in a rage. He’d told them to move; why were they still lingering? Get the f— out of here. Sefolosha said something back. He recalls lines of dialogue, largely corroborated by other witnesses. “You can talk to people nicely, it works just as well.” And: “It’s because you have a badge that you’re a tough guy.”
“With or without a badge,” the cop replied, “I’ll f— you up.” (Much later, when the officer was asked under cross-examination whether he had uttered these lines, he said, “I do not recall.”)
Sefolosha did not back down. “C’mon, man. You’re 5-foot-2. You’re a midget, man. Relax. I guess I’d be mad too if I were a midget.”
The cop seemed to move away. Other officers were urging Sefolosha and Antic to get into the SUV, to leave immediately. One cop, by his own account, was even holding its door open. Sefolosha muttered that he didn’t understand why he was being chased off so aggressively — many others were milling around at that same moment — and he couldn’t resist another crack. “I pay my taxes,” he said. “Matter of fact, they probably pay your salary.” Then, just before he was about to duck into the SUV’s back seat, a man approached.
“Yo, you gonna help a brother out?”
Sefolosha recognized him from earlier, when he and Antic first walked through 1 Oak’s ropes. He seemed to be a panhandler who worked the area. Sefolosha had refused the man’s earlier entreaty, but now he peeled a twenty from his billfold. According to Sefolosha, he made a point of saying out loud: “I’m going to give this guy some money.” He never got the chance. As can be seen on the CCTV video of the scene, the cop at the door of the SUV took the man by the arm and ushered him away. Irritated, intent now on pressing the bill into the man’s hand, Sefolosha took a few long, swift steps toward the pair, trying to catch up. But before he could get there, someone checked him in the side, spun him around and took him by the right arm. Sefolosha recalls the cop saying, “That’s it. You’re going to jail.” And then there was another cop, and then another: They were flocking to him. They had him by both arms. He dropped the $20 bill to the ground. “Relax,” Sefolosha said, addressing the cops. “Relax.” He was resigned now to being arrested. Running through his mind was: Get to the police station, clear up this misunderstanding — and get back to the hotel before anyone’s the wiser. This is not a good look. And then he felt a kick to his right leg and a flash of pain, and then his left side rose into the air as if lifted up by someone, and then he was falling and then he was on the ground, his face against the pavement, the knees of officers pinning him there.
FOUR MONTHS EARLIER, when the Hawks played in New York in December 2014, Sefolosha and his wife, Bertille, were in a taxi that had come to a halt in midtown Manhattan. Traffic was at a standstill, and people were marching by with signs that read black lives matter. It was a mass protest in response to a grand jury’s decision not to indict the NYPD officer whose chokehold had killed Eric Garner four and a half months earlier. Sefolosha and his wife got out of the cab and went into the crowd. He took photos and the next day posted one on Twitter. “It was good to be in NY and see people getting there [sic] voice heard by protesting in the streets,” Sefolosha wrote in a tweet. He ended it with a hashtag: #icouldbenext.
The New York City Police Department has a contentious history of allegations of misconduct — enough of one that there’s a heated Wikipedia page dedicated to the subject. In the past 15 years, the city has paid out on behalf of its police more than $1.2 billion in settlements and judgments. In 2014 and 2015 alone, it paid $318.4 million in settlements. By way of comparison, Los Angeles paid $74.4 million over those same two years. Adjusting for population, NYC paid almost twice as much per person.
New York’s problem also appears to be growing. From 2000 to 2013, the NYPD averaged payouts of $64.4 million per year; the past two years, that figure has risen to $159.2 million, almost 2.5 times as much. New York City’s Civilian Complaint Review Board, an independent watchdog agency that investigates grievances by citizens against the police, also reported that in the first half of 2015, 49 percent of the alleged victims in CCRB complaints were black; NYC’s black population stands at 26 percent. That ratio conforms to national averages. According to the U.S. Department of Justice, from 2002 to 2011, black people were 2.5 times more likely than white people to have experienced nonfatal force in their most recent contact with police and 1.7 times more likely than Hispanics.
THE 10TH PRECINCT, on 20th Street in Chelsea, is a vintage New York City police station. It could have been an interior in a scene from Serpico. It was the setting for the 1948 noir classic The Naked City. Sefolosha and Antic were now inside it. Antic had been arrested too. As the cops had been yanking on Sefolosha’s arms, an alarmed Antic says he tapped one of them on the shoulder to ask what was going on. He was shoved onto the ground and, after Sefolosha was subdued, himself taken into custody. At the precinct, the pair sat handcuffed to a bar running along a wall in a corner of the big, open central room. More than two hours went by, according to Sefolosha, before they were allowed to make their first phone call — to Andre Cottle, then the Hawks’ head of security, a former Daytona Beach vice cop beloved by the players.
“Andre. I’m in jail,” Sefolosha said.
Cottle thought he was joking. “What? Stop playin’.”
Some of the cops who’d tackled and arrested Sefolosha were all now at the precinct, their shifts evidently close to ending. After Antic and Sefolosha were fingerprinted, after they’d answered name-age-occupation types of questions, it must have become clear to the officers, if they hadn’t known it already, that these were two NBA players. They did not, to Sefolosha, appear in any way unsettled by this fact. He remembers one of them saying to him: “Hey, when you get out of here, maybe we can play some one-on-one.” Sefolosha’s ankle throbbed and had begun to swell, but he refused an offer to go to an emergency room. “I wasn’t about to go to a New York hospital in my handcuffs as a criminal,” he says. “I might still be there.” He preferred to see the Hawks’ world-class doctors. Before he could do that, though, he and Antic needed a lawyer.
About 7 a.m., one showed up. He wore a suit and carried a briefcase but looked disquietingly young. His name was Alex Spiro, 32 years old, a protégé and partner of legendary New York criminal defense attorney Benjamin Brafman (former counselor for John Gotti). Spiro was acquaintances with Scott Wilkinson, executive VP and chief legal officer for the Hawks, which is how he got the phone call in the first place. Spiro’s résumé: Harvard Law, a stint with the CIA and five years as an assistant district attorney in Manhattan covering this very part of the city. He personally knew many of the officers based out of the 10th Precinct, especially among the detectives, with whom he had worked closely as a prosecutor bringing cases. (He is also one of the few lawyers in the city to have prosecuted a police officer for misconduct and, after switching sides and joining Brafman, defended one against charges of criminal misconduct.) Spiro had reason to believe his new clients had a small chance of walking away that day without being charged with any crimes. According to Spiro, one of the detectives who’d been tasked with investigating the Copeland stabbing had announced to him, “This is a bulls— arrest.”
But a dismissal wasn’t to be. Several hours later, at the courthouse, Sefolosha was arraigned on charges of disorderly conduct, resisting arrest and obstructing governmental administration in the second degree (which means he was being accused of interfering with the Copeland crime scene). Antic was also arraigned on an obstruction charge, with additional counts of disorderly conduct and harassment (of a police officer) in the second degree. All were misdemeanors but, if the players were convicted of them, could lead to jail time.
Even before they were transferred from the precinct to the court, news media had gathered outside. If you Googled his name in the following weeks, the first image you saw was Thabo Sefolosha in a black hoodie and handcuffs being perp-walked out of the precinct.
AT THE END of a Ritz-Carlton corridor was the hotel room of Mike Budenholzer, the Hawks’ head coach. He’d summoned Sefolosha and Antic shortly after they’d finally arrived back at the hotel from the courthouse in the late afternoon. The coach’s room awaited them like a confessional.
Sefolosha felt both guilty and innocent. He was acutely aware of how it all looked. He had been out on a school night at 4 in the morning at a famous late-night party emporium. He’d spent the past nine hours incarcerated. He was now accused of crimes. It was all over the news, and many initial reports had conflated his and Antic’s arrests with the Copeland stabbing — were Sefolosha and Antic somehow involved in that? “There’s no point in sugarcoating anything,” Sefolosha said to himself and then to Antic out loud. They knocked on the door.
Budenholzer was stone-faced as he took in the details. But as the story went on, his eyebrows climbed. “They described to me everything that happened, including some things they could have done different, or they could have been more perfect at,” Budenholzer now says. “They were very honest. But what happened to them, in their minds, was not right. And as I put it all together, I felt the same way.”
He told his players to go back to their rooms, take a shower: “You guys are not playing tonight. We’ll figure it out. Get some rest.”
“But Coach, that’s not all, man,” Sefolosha said. He’d waited until the end to disclose the ugliest upshot: the extent of the pain he was then feeling in his ankle. He believed he’d suffered a serious injury. He needed to see the team doctors.
“That was tough, telling him that,” Sefolosha says now. “That’s when I really felt like: F—, I’m letting the team down.”
Budenholzer acknowledged that this turn of events was not ideal. But he says he never doubted that his players had been arrested unjustly. Budenholzer told Sefolosha at one point, “This is what’s wrong with America.”
BUDENHOLZER WAS THE first to inform Sefolosha that a video of his encounter with the NYPD, shot on a cellphone, had appeared online, published by TMZ. A day later, a second video, shot from the opposite angle, went up. In the video, Sefolosha, surrounded by cops, is being pulled and pushed this way and that before what looks like five officers tackle him to the ground. A woman’s alarmed voice is saying, “They didn’t do anything!” and “Stop!” The voice belongs to one of the women who’d met Sefolosha and Antic inside 1 Oak. She shot the video. Her friend, who also had met the players that night, can be heard on the video saying, “He was trying to give him money.” Most memorable, though, is Sefolosha’s own voice. In the beginning of the video, he’s still upright but caught at the center of a scrum of cops. His position is precarious, volatile — you can tell that, very soon, he’ll be going down hard — and it’s right at this point that he says to the cops, in a futile effort to reverse the inevitable: “Relax. Relax.”
That evening, in the locker room before the game with the Nets, Budenholzer made a few brief remarks to the team on the events of the morning and Sefolosha’s injury. He didn’t dwell on it. But over the next few days, as they watched the TMZ videos and as a fuller understanding of what had happened spread among the players, many of them grew angry: angry on behalf of Sefolosha, angry that yet another episode of what appeared to them to be racially motivated police violence had touched one of their own, and angry that an incident having nothing to do with basketball had sidelined a key player, damaging the potency of their team as the playoffs loomed. Says Hawks guard Kyle Korver, “Nothing upsets me more than people who abuse their power — and the police are people with power.” For some black players, Sefolosha’s experience renewed a kind of but-for-the-grace-of-God-go-I feeling.
“We understand you have to be careful, even in situations where you’re not even doing anything wrong,” says one. Darvin Ham, a Hawks assistant coach who played eight years in the NBA, says, “Every time you have an interaction with a police officer, it’s always in the back of your mind as a black man: They may come at me aggressive. It’s unfortunate, but I have to have that talk with my sons. ‘Be polite, talk to them with direct eye contact, make sure they see your hands.’ “
For the Hawks in April, all of these feelings had to be put aside. Still, as the playoffs were set to begin, a few of them reached out to Spiro to run an idea by him — a show of solidarity for their fallen comrade. Spiro considered it, but he ultimately counseled the players against it, concerned it might impair his efforts to get Antic and Sefolosha cleared. Before a game in December, LeBron James, Kyrie Irving and the Brooklyn Nets had famously worn T-shirts that said I CAN’T BREATHE — the words Eric Garner had uttered while a cop choked him to death. The Hawks players had also wanted to don black T-shirts during warm-ups before a game. Across the front, the shirts would have said: RELAX.
BERTILLE SEFOLOSHA MET her future husband in 2002 in the French town of Chalon-sur-Saône, in Burgundy. It was where she’d grown up, the daughter of a Cameroonian mother and French father. Thabo Sefolosha had moved there from Switzerland at 18 to play on the junior squad of the town’s pro basketball club, Elan Chalon, and to study at a local lycée. They were essentially high school sweethearts. When Bertille heard the news that her husband had been arrested outside a nightclub at 4 in the morning, and likely injured, she says her mind was filled only with worry — for his health, his career.
Only later, once he was sitting across from her at the kitchen table of their large house in Atlanta’s Buckhead neighborhood, where they live with their two daughters, 6 and 7 years old, did her thoughts turn probative, incredulous, suspicious. She has long brown hair that she wears in braids, skin that looks almost golden, a master’s degree in international relations and the cast of mind of an investigator. She grilled her husband at that table. “I asked him like a million questions,” she says. How long were you at the club? What time were you first approached by the police? Who was the taxi driver there? Did she see what happened? The homeless guy — why did you insist on giving him money? Why didn’t you just get in the car and go? What exactly did you say to the police? But you must have said something!
Pero Antic came by the house a little while later. She sat him down and grilled him too.
Bertille says she wasn’t doubting her husband’s story; she was playing prosecutor, trying to prepare him for the road to come. But after he answered her many queries, Sefolosha’s mind cycled. “I was like: Is that really it? Am I missing part of it? I was doubting myself, I was questioning myself.” Sefolosha’s concerns were later confirmed — his right fibula had indeed been fractured, the ligaments shredded around the ankle and at the top of his foot. And in a cast after the surgery, his ankle ached. He struggled to sleep. He lost his appetite. He began having weird abstract nightmares that left him not with memories of the dreams’ narratives but a vague sense of dread.
AN UNCERTAIN SUMMER
All through the spring and summer, Sefolosha and Antic waited. Meanwhile, the playoffs unspooled without Sefolosha. He watched impotently as the Hawks advanced to the Eastern Conference finals, only to be swept by the Cavaliers and James, who averaged 30.3 points, 11 rebounds and 9.3 assists in the series. Sefolosha — with his 95.3 defensive rating, third among all NBA small forwards with at least 40 games played — would have been tasked with guarding James. As he does every year, Sefolosha took his family home to Europe for July and August. Antic went back to Macedonia; his contract with the Hawks ended and he struck a deal to play the next season at Fenerbahce, a pro team in Istanbul.
There were many within the Hawks organization and in the players’ union who believed that the Manhattan District Attorney’s Office, responsible for investigating Sefolosha and Antic for the misdemeanor counts against them, would at some point drop the cases. It seemed absurd to them that it had even gotten this far. Hawks execs felt the holdup almost assuredly had to do with the inevitable civil lawsuit Sefolosha would file against New York City and the NYPD for breaking his leg and endangering his career. (Despite his strategic disclaimers in the media, Sefolosha knew almost from the start that he would sue, but only after the criminal case was resolved.) If the DA dismissed the charges, it would only strengthen Sefolosha’s civil lawsuit. On the other hand, if the government took the case to trial and lost, that too would arguably boost the strength of Sefolosha’s suit.
In late July, Spiro met with supervisory prosecutors in the DA’s office and gave a presentation that revealed CCTV footage (along with the TMZ videos) of the altercation and moments surrounding it. He applied the law to the facts. He attempted to demonstrate that reasonable doubt loomed large behind each of the counts against his clients. He reiterated that under no circumstances would his clients take a plea. Still, the prosecutors were mum. Another month passed. Early on in the process, a tentative trial date of Sept. 9 had been set. That day arrived, and all the parties convened at 100 Centre St., the city’s downtown criminal courthouse, so bleak and inhospitable it’s almost Gothic. The charges against Antic were dismissed in full but not those against Sefolosha.
For him, the DA’s office had another offer: one day of community service and something called an adjournment in contemplation of dismissal, or ACD. If accepted, this meant that the charges against him would be expunged from his record in six months. An ACD, in other words, is essentially a dismissal, albeit a delayed one. For somewhat complicated reasons, ACDs are now standard operating procedure for prosecutors in New York state when they want to resolve a case without trial. A person inside the Manhattan DA’s office says that when it comes to any kind of altercation with police, a complete dismissal “just doesn’t happen.” Indeed, Antic’s full non-ACD dismissal was highly rare, offered only to the incontrovertibly innocent, such as in clear-cut cases of mistaken identity. An ACD is actually only slightly less rare. According to a recent study, the DA’s office chooses to prosecute 96 percent of the misdemeanor cases brought to it by the NYPD.
In New York City, few (if any) of the defendants accused of the same crimes as Sefolosha have the resources of an NBA millionaire. Many don’t have the money even to make bail. Thus, despite sometimes dubious charges and weak cases against them, defendants accept plea bargains just so they can get off Rikers Island. “These types of cases are a joke among public defenders and prosecutors,” says one Legal Aid attorney. “It’s often police arresting someone because they didn’t show the expected deference to police authority.”
In many ways, then, the deal offered to Sefolosha was a good one. For two weeks in September, he pondered the decision: take the ACD and move on with his life — he wouldn’t even need to appear in court again, and his fingerprint records would be destroyed — or fight the charges at trial. At first, the latter option seemed lunatic. To do so would be to risk a jury’s conviction, which in turn could lead to all kinds of nasty outcomes, including deportation (he had no green card) or the termination of his Hawks contract. Even prison time wouldn’t be off the table; Spiro informed Sefolosha that the max sentence would be two years behind bars. “The practical man takes this deal,” Spiro says.
When Michele Roberts, director of the National Basketball Players Association, first heard that the Manhattan DA’s office was not fully dismissing the charges against Sefolosha, she says she was “absolutely shocked … and then I was angry.” Roberts, a former Washington, D.C., lawyer, has won cases for defendants she showed were victims of excessive police force and has successfully defended cops being prosecuted for excessive use of force. Says Roberts, who had sent the union’s general counsel to the precinct on the morning of April 8: “It was a quote-unquote generous offer, but that’s the offer you make when you know your case is weak. And if you’re acknowledging in any regard that your case is weak, dismiss it!”
Again and again, Spiro and Sefolosha weighed the pros and cons. But the more Sefolosha considered it, the more he wondered. Taking the ACD, to him, carried a certain residue, almost as though he’d be copping to a kind of figurative guilt. By accepting it, he’d be conceding that his arrest had been lawful, that the police had been within their rights to take him into custody — which could undermine his civil suit. Conceding it also meant that he could never show what he believed to be true: that he’d not deserved to have his leg broken by a scrum of cops. It was, in a way, perverse. It was clear to Sefolosha that if his leg had not wound up broken, if he’d been uninjured just as Antic was, his case too would have been fully dismissed.
As Spiro and Sefolosha were going over all this, some news hit the wires. Earlier that very day, Sept. 9, possibly while Sefolosha was standing next to his lawyer in criminal court, a white NYPD detective had tackled and handcuffed a man standing on a sidewalk in Manhattan who the cop thought resembled a criminal he’d been trailing. Only it wasn’t the criminal. It was James Blake, the retired black tennis pro.
BEYOND HIS ATTORNEY and his wife, Sefolosha consulted an inner circle of confidants that included his parents. His mother, Christine Sefolosha, a painter, was born in Vevey, an ancient and picturesque village of stone houses and cobbled lanes on the north shore of Lake Geneva. Her family has called it home for many generations. His father, Patrick Sefolosha, was born in South Africa, outside Pretoria, and raised mostly in a vast, plumbing-less shantytown called Mamelodi, one of the country’s notorious black-people-only townships — the apartheid-regime version of Indian reservations. He grew up to become a musician, the frontman and saxophonist for an Afropop band called the Malopoets. He wore his hair in Rasta-length dreads. The band signed a record deal with Virgin. It toured Europe and America and played New York City. The music was overtly political: anti-regime, pro-resistance. The New York Times once reviewed a Malopoets show at the celebrated world-music venue SOB’s in Manhattan. The Malopoets’ songs, the article noted, were mostly sung in the Sotho language and “turned out to be prayers for families torn apart through South Africa’s resettlement policies, or exhortations to ‘fight for your rights.’ “
Back home, Patrick was constantly harassed by police, detained, beaten up, released. He does not remember how many times he was arrested. “Talking to you like this — it’s so behind me, more than 30 years — it’s: Did I really live that? Yes, I did. Those were not happy times. But I had to live them. You go through this kind of thing, you don’t know anything else, you deal with it. You find a way not to be arrested. You are always trying to avoid trouble because trouble can be anything.” One night while he lay asleep in bed, a Malopoets bandmate was murdered, likely by a pro-government death squad.
Patrick met Christine in Johannesburg after a show one night. She had moved to the country some years before with her then-husband, a white South African veterinarian she had met in Switzerland. After a time, she divorced the vet to be with Patrick. “I was not an activist then,” she says. “But by becoming involved with Thabo’s father, I became an activist.” She was now on a list, a suspected member of the African National Congress, the major anti-regime armed resistance movement. She was arrested and detained by police. She says she received threatening phone calls in the middle of the night. Whites weren’t allowed in the townships, so she sneaked into Mamelodi to see Patrick. She became pregnant with his child (Thabo’s older brother Kgomotso). The apartheid regime had so-called miscegenation laws: No romance or “interbreeding” between white and black. For this transgression, he faced 10 years in prison. She faced an enforced abortion. In 1983, they fled South Africa and apartheid.
“I escaped that,” Patrick says. “I escaped that especially for my kids. And then to see that Thabo has to go through this same kind of thing …” His voice trails off. He has keenly followed the news of the killings of African-Americans by police in the U.S. — Garner, Michael Brown, Tamir Rice, Walter Scott, Freddie Gray — and the resulting protests. When he learned about what happened to Thabo in April, he says he felt enormous relief. “I was happy,” he says, “because he wasn’t killed. They only broke his leg.”
THABO’S BROTHER KGOMOTSO urged him to fight; Bertille did the same. She said, “What about all the people that cannot afford this type of lawyer and get squashed by the system?” His mother urged caution: It’s a dangerous thing to go up against a powerful system. Budenholzer, in a one-on-one meeting with Sefolosha, said he thought he should fight. Patrick Sefolosha told his son, “It is a matter of … your honor.” This is how Thabo Sefolosha puts it: “I believe what happened was an injustice. And looking at this, you think, ‘Maybe this same type of thing happens to many more people. I am in a position where I can prove I’m innocent. Not many other people have that chance.'”
When Spiro informed the DA’s office that Sefolosha was refusing the deal, prosecutors came back with a sweetened offer: They would strike the community service. But it wasn’t enough. Sefolosha had made up his mind: It was either a full dismissal like the one Antic had received, or trial.
He felt he had no choice.
THE STAND
“He doesn’t think the rules apply to him. He’s a professional athlete, a member of the NBA. He can do what he wants to do. You are going to hear about how on April 8, 2015, the defendant displayed a sense of entitlement and disdain. Entitlement, in that he shouldn’t have to comply to the rules everybody else has to.” So said Assistant District Attorney Jesse Matthews in his opening remarks early on the second day of the trial, Oct. 6. A small bearded man, he was one of two ADAs assigned to prosecute Sefolosha.
When Sefolosha spurned the deal, the government seemed to go after him with the full weight of the office. According to a person with knowledge of the DA’s office, investigators were temporarily pulled off a homicide case to assist in Sefolosha’s prosecution. In the first minutes of the first day of the trial’s proceedings, before jury selection had begun, one of the ADAs requested what’s called a Parker warning. In essence this meant the DA wanted the court to consider Sefolosha a flight risk.
“Uh, no,” the judge said.
The DAs even tried to add a fourth count — harassment of a police officer in the second degree — to the crimes Sefolosha was already accused of. Harassment wasn’t on the original criminal complaint. The judge dismissed it.
During jury selection, the DAs asked a curious question of the pool of 25 Manhattanites, only three of whom were black. Would you be able to remain unbiased if the only witnesses produced by the prosecution were police officers?
THE PROSECUTION CALLED to the stand JohnPaul Giacona, 28 years old, from Staten Island, New York — holder of a bachelor’s degree in marketing from St. John’s University, Staten Island campus — three years and three months on the New York City police force. Shield No. 9996. Giacona is a member of the 10th Precinct’s “cabaret unit” or “cabaret squad,” which oversees the bars and nightclubs of Manhattan’s upscale nightlife-heavy neighborhoods. In the 10th, it’s not just 1 Oak but Avenue, Marquee, Dream, PHD, No. 8, Tao. The cabaret units make sure the crowds are orderly. They routinely deal with mouthy drunks. Says one veteran NYPD cabaret cop, “You become thick-skinned to that. This is what you’re going to deal with. It becomes secondhand to us.”
Early on the morning of April 8, Giacona was one of dozens of officers who responded to a crime scene. A man was down, bleeding from a stab wound. It would later be determined that this was Chris Copeland of the Pacers, formerly of the Knicks. Two women were also cut as they tried to hold back the perpetrator. Colleagues of Giacona had approached the perpetrator with their guns drawn. He still had a switchblade in his hand; Copeland’s driver, the hero of the hour, had him in a bear hug; he dropped the switchblade. There was blood on the pavement. The injured male, in that moment, was judged “likely,” as in likely to die. The order from the supervisory sergeant: Shut down 1 Oak and Artichoke, the all-night pizza place at 17th and 10th, immediately. Clear the block! As Giacona did this, he said, everyone was “very compliant.” Only two males — two very tall males — were not. He asked them “politely” to leave. They were, he said, more interested in mingling and talking to girls. He was forced to approach the males a fourth, a fifth, a sixth time. Then one of the males said to him, “You’re mad you’re a midget. I would be mad too if I were a midget.” Giacona is 5-7, 160 pounds. He was just trying to do his job. “We just want him to leave at that point,” he said.
They called to the stand Daniel Dongvort, 28, from Smithtown on Long Island — formerly an emergency medical service responder, with an associate’s degree in liberal arts from Empire State College — almost four years on the force. Shield No. 3129. He too responded to the stabbing. He rendered first aid to the victim, Copeland (who would, in fact, go on to survive his injuries), and helped him into an ambulance. He was then assigned to crime-scene security. Dongvort first saw the defendant speaking to Officer Giacona near the corner of 17th Street and 10th Avenue. The defendant, Dongvort said, was being mouthy: “He was calling him a midget repeatedly.” Sefolosha and Antic refused to leave the area after “multiple requests from many officers.” He, Dongvort, opened the door of a livery cab for the defendant and urged the defendant to enter the automobile and go home. But just then “another unknown male” grabbed Dongvort’s attention. He tried to escort this other male away from the area. As he was doing so, he could see out of the corner of his eye another of his colleagues and the defendant involved in some kind of commotion. He went over to assist.
They called to the stand Richard Caster, 28 years old, from Rockville Centre — formerly a TSA employee at LaGuardia Airport, degree in U.S. history from C.W. Post Long Island University — on the force for more than three years. Shield No. 17276. He first noticed the defendant because he was “not complying with instructions from Officer Giacona.” Meanwhile, “everyone else was compliant.” When Caster was standing near the corner of 17th and 10th Avenue, he saw the defendant charging and lunging at his colleague, Officer Dongvort. “The charge was an aggressive motion.” He took action. He “stepped in” before the defendant could make contact with Officer Dongvort. He took the defendant by his right arm. He informed the defendant he was under arrest and told him to put his hands behind his back. But the defendant refused. He resisted. He was “straightening his arms.” Sefolosha is a large man, approximately 6-7 and 230 pounds. Officer Dongvort came to assist in the arrest. So did several others, including Officer Giacona, who swept Sefolosha’s legs. It was a “proper takedown,” Caster said. Officer Giacona put the handcuffs on.
The five officers involved in the arrest of Thabo Sefolosha — Giacona, Dongvort and Caster, as well as others named Michael O’Sullivan and Jordan Rossi — were not made available for this story. They were each being investigated by Internal Affairs and the CCRB. (Giacona and Caster were later found guilty of unlawful abuse of authority, with recommended punishments of up to 15 days of docked vacation time for Giacona and formalized training for Caster.) Their union, the Patrolmen’s Benevolent Association, also declined to comment or make the officers’ union-provided attorneys available for comment. The DA’s office declined to comment as well. The accounts above are based on trial testimony and statements made by the officers to CCRB investigators.
“WHERE DID YOU grow up?” Assistant DA Matthews asked early in his direct examination of Caster.
“Long Island, New York, raised by my parents,” Caster said, and without further prompting he added: “My father’s black, mother’s white.”
His father is Richard C. Caster, 67 years old, a former All-Pro tight end with the Jets, Oilers, Saints and Redskins, who grew up in Mobile, Alabama, and played football on scholarship at Jackson State, a historically all-black college in Mississippi. In May 1970, his senior year, police opened fire with shotguns on a group of Jackson State student protesters, killing two and injuring 12. “Listen,” Richard Caster said when I spoke to him recently by phone. “I was brought up in the South and only came up here for the first time as a 21-year-old.” He added, “I was right in the heat of everything.” And then he said he thought it best if he didn’t say anything more.
SPIRO’S FIRST QUESTION to Giacona in cross-examination was, “Officer, will you use that marker and mark on the easel when you first noticed that my client was black?”
“Objection, your honor.”
“Sustained.”
Spiro proceeded to slowly undermine Giacona’s recollection of events — and that of the other officers. He got Giacona to say he didn’t really know how many times he’d approached Sefolosha to tell him to leave the block — that the six times Giacona had sworn to, a number that appeared in the original criminal complaint, was potentially false. The line of questioning suggested it was a high-side estimate put into the report to strengthen the case against Sefolosha. Spiro got the officers to agree that, yes, when Sefolosha was arrested, there were many other civilians closer to the crime scene, as captured by the CCTV cameras. He asked Giacona, “You’ve never seen the video of you walking by the Caucasian individuals and walking right up to Mr. Sefolosha?” After playing the footage, Spiro eventually got Giacona to agree that this had happened.
“Are there lots of people closer than Mr. Sefolosha?”
“I would say so, yes.”
Using NYPD documents he’d obtained from a friendly source within the department, Spiro showed that the officers originally wanted to charge Antic with attempting to punch Dongvort — an allegation clearly refuted by the CCTV footage and the TMZ videos. Spiro noted that in the TMZ videos you can hear many voices saying many things but never the words “Put your hands behind your back” or “You’re under arrest,” which the officers testified they’d uttered repeatedly while trying to corral Sefolosha. Spiro got Caster to agree that, yes, it was possible that Sefolosha was trying to give money to a homeless person and that maybe Sefolosha hadn’t been making an aggressive move toward Dongvort at all. Then Spiro produced the homeless man.
ON THE STAND on the third day of the trial he wore a big knit cap, a denim vest and baggy black pants. He chewed gum as he testified. He said his name was Amos Canty. He looked to be in his late 40s or 50s. He testified that he “works” for the bouncers at 1 Oak, performing whatever tasks — setting up partitions, hailing cabs for clubgoers — they ask him to. He testified he’s not above asking the VIPs for money, including Sefolosha on the morning of April 8, at the corner of 17th Street and 10th Avenue. He testified that Sefolosha tried to give him money but that he never got it because an officer intervened. He testified that he then saw several cops take Sefolosha down. Spiro’s investigator Herman Weisberg, a former NYPD detective, says Canty almost didn’t take the stand on the day of his testimony. When Canty saw the 10th Precinct cops in the courtroom, he got scared. And on cross-examination, Assistant DA Francesca Bartolomey tried her best to impugn him.
“Were you paid for your testimony today?”
“Was I what?”
“Were you paid for your testimony today?”
“Hell no! Somebody supposed to be payin’ me?” The courtroom erupted in laughter.
“Is your name Renard Dobson?”
“No, that was an alias name I had. I had ID made from another country, yes. Wait, wait, I’m on trial here or something?”
“Is your name Walter Jordan?”
“Don’t worry about my name, I’m not on trial.”
Under direct examination, he’d testified that his mother gave him the nickname everyone on the street knows him by.
“What do they all refer to you as?”
“True.”
THE VERDICT
When Alex Spiro said, “The defense calls Thabo Sefolosha,” the player rose from the defendant’s table in his bespoke suit, folded his length into the witness stand and sat there, slightly hunched. His testimony under direct examination was efficient. (“Did you ever turn back and go, against his order, towards the club?” “Never.” “Did you ever say, ‘I’m not going. I refuse.’ ” “Never.” “Did you ever intentionally try to interfere with the crime scene that is now 100 feet in the other direction?” “Objection.” “Overruled.” “Never.”) He was cool under fire during the cross, which was handled by Bartolomey. With several early questions, she seemed to suggest, to little effect, that Sefolosha and Antic had intended to cheat on their wives that night. As she probed for details on Sefolosha’s decision to give money to the homeless person, her line of inquiry grew muddled. At times the jury looked bored. The lone black juror studied his fingernails.
Bartolomey’s questions grew repetitive, and the judge, with frustration in his voice, began sustaining objections — asked and answered — that Spiro never actually made.
But the district attorneys had a surprise. After the defense rested — Spiro’s final witness was Budenholzer, whose role was to laud Sefolosha’s character — the prosecution recalled to the stand Officers Caster and Dongvort. They testified that they both knew the homeless man, who went by the name True, very well from their nightly tours with the cabaret squad. True, Dongvort said, was “definitely not” the person he had escorted away from Sefolosha’s livery cab. True, Caster said, was “absolutely not” the person Sefolosha had been trying to give money to. The objective of their testimony seemed clear: Make the jury wonder whether Spiro, Sefolosha and True had concocted the whole story of the alms for a homeless person.
THE JURY BEGAN deliberations just after 4 p.m. on Thursday, Oct. 8. About 15 minutes later, the bailiff emerged. There were gasps. Already? But no, the jurors merely wanted a copy of the CCTV and TMZ video footage. Soon the judge sent them home for the night. They returned for further deliberation at 9:30 a.m. the next day. In the courtroom, Sefolosha was stressed. He would later say that his stress level was a 9 on a scale of 1 to 10. The thinking was that the longer it took for the jury to decide, the worse it was for Sefolosha.
Ten, 15, 20 minutes passed. Next to Spiro at the defense table, Sefolosha put his head in his hands, he rubbed his temples, he stood up and then sat back down. He looked up at the dirty beige foam panels of the courtroom’s dropped ceiling. With its beat-up file cabinets and fluorescent lights, its stacks of papers and silent, mirthless functionaries, it could have been the office of a minor government ministry on the outskirts of Minsk. There were times during the trial that Sefolosha felt he was ensnared like a Kafka character in some treacherous and mystifying legal system. “The DA talking about how I feel entitled?” he says. “You don’t know me! Why would you attack me and who I am? Why don’t you just go with facts? Isn’t it your job to find the truth? After a certain point, I was like, ‘Man, this is getting … deeper and deeper. This is crazy. This is nonsense.’ ” Even now, Spiro and the judge were engaged in an arcane argument about some finer point of the law as applied to the case. Then the bailiff emerged from the jury room and handed the judge what appeared to be an envelope. The judge held on to the envelope and continued to analyze the point of law. Something about it seemed to have caught his legal-philosophical interest. He and Spiro went on for a bit. People’s eyes were bugging out. It was as though the judge were doing this on purpose, like a prank. Sefolosha ran his hand over his face.
“All rise.” The jury came in. The women in dresses and lipstick. The men in blazers, ties, suits.
“Have you reached a verdict?”
The three counts were read out loud, and after each one, the young forewoman said, “Not guilty.”
WHAT DOESN’T HEAL
Three weeks after the verdict, on Oct. 27, Sefolosha played his first NBA game since April 7. He says he still feels pain when he plays. Because of the surgery to repair the ligaments, he says, his Achilles tendon is extremely tight. Before and during games he can be seen doing complex stretching exercises to it with an instrument that looks like a baton. But he’s playing well, posting career highs in rebounds per game and field goal percentage. He is without a doubt a key element in the greater Hawks’ calculus for another title run. Maybe he will win a championship with them.
Still, Sefolosha has never been named an All-Star. He remains a bench player. And in the aftermath of April 8, he worried that whenever anyone Googled his name, the first image was of him in handcuffs. In late October, he told ESPN’s Hannah Storm he was planning to file a $50 million lawsuit against New York City, the NYPD and the officers. And after Sefolosha’s acquittal, after all the media coverage of his ordeal, it is likely his career will never be defined by his feats on the court but by his altercation with the NYPD in the year of Black Lives Matter. When casual fans think about him now at all, it is in this context. His fame, such as it is, will have been guaranteed by a violent police act. He has become in this way a minor American civil rights symbol — the embodiment of his father’s songs and a reminder that what his parents fled from in South Africa has endured in subtler forms. Though his decision to refuse the ACD and fight the police at trial was indeed partly political — a kind of protest against a broader pattern of injustice — he has become such a symbol against his will. He is not even American. Really, Thabo Sefolosha just wanted to clear his name.
When he sees fans now, they often mention his case, sometimes in ways that disturb him. According to Sefolosha, at a game not long after the start of the season, he heard some fans exuberantly shout in his direction, “F— the police!” He told this to me one afternoon in early November as we drove to his house from practice — and he immediately regretted it. What the fans yelled clearly made him nervous. He said he preferred it not be included in the story at all.
“There are all these tragic stories that are far worse than Thabo’s,” his mother, Christine, told me from Vevey not long ago. “I don’t want him to become a hero. I really believe the more you stick your neck out, the more you’re a target, especially on an issue like this. I am scared for him. He did his duty. He said what he had to say. He proved he was not guilty. Now I wish for him to be serene — and put this story behind him.”
Illustrations by Oliver Barrett