By most accounts, Robert Wagner is an affable, personable man.
A police officer who has known him for years even referred to him as a gentle giant.
But the 6-foot-4, 300-pound Wagner possesses another trait that, a judge said, is the reason he landed in jail Wednesday for attempted assault of a police officer:
Douglas County District Judge Duane Dougherty said he sympathized with the fact that Wagner was emotional and reeling over the loss of a cousin and close friend that night in May 2011.
The judge said he also understood that Wagner is considering a civil claim against the city over his controversial arrest — in which police officers dogpiled him, kicked him, punched him and shocked him with a Taser.
Any civil action may mean Wagner is between “a rock and a hard place” when it comes to any admissions he could make, Dougherty said.
But in sentencing Wagner to 60 days in jail — under state guidelines, he will serve half that time — the judge said he was most bothered by Wagner’s lack of contrition over the attempted assault of Officer Scott Zymball.
Dougherty noted that, mere hours after his arrest, a female friend asked Wagner why he was being charged with assaulting a police officer.
“I got mad and swung,” Wagner said on a recorded jailhouse phone call.
Even in the face of those words, Wagner has refused to own up to his actions, Dougherty said.
“What you have not shown me is any ability to accept any responsibility for what you did that night, for how you handled your emotions,” Dougherty told Wagner. “You say you did not swing at that officer.
“Yet I heard your own voice admitting that you swung at the officer because you ‘got mad.’ It bothers me that you won’t acknowledge that.”
At that, Wagner piped up.
“I told (attorney Glenn) Shapiro that I swatted at a thing (the officer) stuck in my face,” Wagner said. “(Shapiro) didn’t want to go with that.”
Authorities suggested another reason for Wagner’s insistence that he did nothing wrong: his and others’ desire to make police pay.
Several activists — including Mark Welsch, who declined to comment Wednesday — rallied behind Wagner. And Wagner has hired a Chicago attorney to explore a civil claim against the city.
In a presentence report, a probation officer who interviewed Wagner wrote: “Mr. Wagner is being pulled by forces outside himself who may have an ax to grind ... to further their private agendas.”
The Wagner case began at Creighton University Medical Center. Wagner had gone there to visit a dying cousin and friend, Jimmy Levering, who had been shot.
Angered that his girlfriend wasn’t allowed to visit his cousin’s family — while City Councilman Ben Gray was — Wagner lobbed a number of profanities at Omaha police.
After being told to leave, he walked out of the emergency room exit, turned around and walked back toward an officer, calling her a name. The officer ordered him arrested.
Zymball moved to arrest Wagner, and Wagner pulled back as if to throw a roundhouse punch.
The hospital surveillance videotape of Wagner’s arrest did not show a punch. But Zymball, several officers and a hospital worker testified that Wagner hit Zymball in the side of the head.
After a mistrial, prosecutors struck a plea bargain with Wagner.
They reduced his charge from felony assault to misdemeanor attempted assault of an officer, and Wagner pleaded no contest to the lesser charge. If convicted of the felony charge, Wagner faced up to a year in jail or two years of probation.
Prosecutor Jim Masteller asked for jail time, pointing out Wagner’s lack of remorse and his continued insistence that Omaha police killed Jimmy Levering that night and “spirited away” his body in order to cover up the murder.
Levering was a notorious gang member with numerous enemies — and the bullet that killed him was not fired by police, Douglas County Attorney Don Kleine has said.
Despite those facts, Masteller said, “the defendant continues to hold that bizarre belief.”
Shapiro urged the judge to put Wagner on probation, noting that he had no felony record. Wagner is “one of the good guys” and his actions that night were the product of an “intense, stressful situation,” he said.
Wagner told the judge he isn’t “the bad guy” people have made him out to be. He decried his arrest to the judge.
He said the “only reason” the whole episode started was because he used an expletive in referring to a female officer.
“I’ve said all along, all this stemmed from me calling the lady a ‘b,’” Wagner said, stopping short of using the actual word.
“I never swung on anybody. I’ve maintained that. It upsets me that, no matter what, I’m still the bad guy.
“If you guys want to bury me, that’s fine. I’m OK with whatever you decide.”
“No one is here to bury you,” Dougherty said.
The judge then imposed the jail sentence.
“That’s what I told you all — it’s Douglas County,” Wagner said, glancing at his family as deputies cuffed him.
His wife, Shawnna Wagner, hollered: “You didn’t have to do that, judge. We barely making it as it is.”
Tears rolling down his cheeks, Wagner’s 10-year-old son yelled: “Stupid judge.”
The 10-year-old then punched the door as he left the courtroom.
Outside court, Shawnna Wagner compared the consequences given to her husband vs. those given to Omaha police.
Then-Omaha Police Chief Alex Hayes fired two of the officers involved in the Wagner arrest — Jackie Dolinsky and Aaron Pennington.
An arbitrator overturned Dolinsky’s termination and reinstated her. Pennington’s appeal is pending.
The arbitrator ruled that the city did not have enough evidence to contradict accounts by Dolinsky and her sister, Officer Jodi Sautter, that Dolinsky was striking with an approved kicking move that police are trained to use.
So while Dolinsky is back on the job, Wagner is in jail.
That led community leaders — and Wagner’s attorney and family — to question whether justice had been done.
“He goes to jail and they give her her job back?” Shawnna Wagner said. “Because she had a badge, she can do that.”
Former State Sen. Ernie Chambers said the entire case has been “a gross miscarriage of justice.’’
“I believe there is definitely an odor of racism here,’’ Chambers said. “If the officers who were attacking Wagner were black, and Wagner was white, the cops would be on trial for assault charges and the white victim would be filing a civil suit with a lot of help from the white community.’’
Gray, the city councilman, said the Wagner case was fueled by misinformation and people trying to score “political points.’’
He said police were wrong to kick a man down on the ground and that Wagner should not have received any jail time.
“I believe it’s an event that should have been allowed to die,’’ he said of the Wagner prosecution.
Said Shapiro: “Some people will think this was an injustice. Some people will think (Dolinsky) should have her job.
“I go back to something I learned a while ago. Under the law, you cannot resist even an unlawful arrest.”
World-Herald staff writer Sam Womack contributed to this report.
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