Section: CAPITAL REGION,  Page: B1

Date: Tuesday, December 15, 1998

A nasty flock of chickens may be coming home to roost in this town.

In their rather naked efforts to ensure that the two cops accused of beating up Jermaine Henderson wouldn't be prosecuted, Sol Greenberg and his district attorney's office not only managed to make Special Prosecutor John Dorfman look like a hero, they also managed to infuriate every minority politician in town. Now Greenberg has another racially charged case sitting in his lap, and the unfortunate conduct of his office in handling the Henderson case could limit his options in dealing with this new one. If you'll recall, Jermaine Henderson was a college basketball player, a minority kid, who allegedly socked an off-duty cop in a bar. The cop and his buddy, another off-duty cop, busted the kid and dragged him off to central booking. The kid showed up there badly banged up.

He later charged that the cops had pounded him viciously while he was in cuffs. Ultimately, everybody was charged with assault -- Henderson with a misdemeanor and the cops with felonies.

Greenberg, who works with cops all the time, decided that he couldn't prosecute police officers. This was a rather astounding decision, since cops are prosecuted routinely by other district attorneys in the real world, outside the Capital Region. But Greenberg wanted a special prosecutor to handle the case against the cops, and a judge gave him Dorfman.

So, prosecuting the cops, Dorfman put Henderson in front of a grand jury without a waiver of immunity for whatever he might say in connection with socking the cop. And Larry Weist, the Greenberg deputy overseeing Henderson's prosecution, did the same with the cops in connection with Henderson's alleged hammering.

The predictable result? Charges against everybody were thrown out, minority politicians just about popped blood vessels, cries went up from City Council for the feds to roar in and investigate this as a civil rights violation and Dorfman finally managed to get perjury charges lodged against the cops for their grand jury testimony. Henderson, meanwhile, walked.

A disaster, all of it. Now, however, we have something considerably meaner. Not quite two weeks ago, two 20-year-old Rotterdam guys cruised into Albany's Arbor Hill neighborhood with a rifle in their car. A black woman ended up with a slug through her neck. The Albany cops charged these guys with attempted murder and proclaimed this a bias-related shooting. These white guys, the cops said, had popped the woman because she was black.

The only problem is that the statements the two allegedly gave the cops -- and I say allegedly because the lawyer for one of them claims the statement is not an accurate rendition of what his client said -- offer no evidence to support that charge.

A key element in attempted murder is intent. Neither of these guys said they intended to murder anybody or even to hit anybody with that rifle shot. They were just screwing around, they said.

The victim's statement hasn't yet come out. Maybe she'll say something that would clearly indicate murderous intent on the part of these two bozos. If not, and if a grand jury indicts on the attempted murder charge, Greenberg has a problem. Given the intense level of minority outrage over his office's handling of the Henderson case, how does he credibly accept a plea to a lesser charge here? And if he tries to convict these yahoos of attempted murder -- before what will surely be a racially mixed jury -- he could face a mistrial if it turns out that they were overcharged. In other words, like Henderson, it's possible that these guys could walk, too.

So, this has all the elements of another prosecution nightmare in this town.

One that wouldn't exist if the DA's office hadn't screwed up the Jermaine Henderson case for starters. Dan Lynch can be reached at 454-5412.