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Activists Fight Back After NYPD Turns Prosecutor To Avoid Civil Suits

Arminta Jeffryes outside of Midtown Community Court

Activists Fight Back After NYPD Turns Prosecutor To Avoid Civil Suits

In almost every criminal case in New York City, the police department makes an arrest, and it’s up to the borough’s District Attorney to decide whether to prosecute. However, since the beginning of 2016, the Manhattan DA has taken the extraordinary step of allowing the NYPD’s Legal Bureau to prosecute some cases in court. Why? So the NYPD, according to its own leadership, can avoid “frivolous lawsuits” by persuading protesters to admit their guilt in exchange for having their charges dropped. This would shield the NYPD from future civil rights suits alleging the arrests were illegal. In fiscal year 2016 alone, the city paid out more than $228 million in settlements for police misconduct.

While allowing the police to act as prosecutors is more common elsewhere in the state, it’s highly unusual in New York City. But in February 2016, the NYPD and DA’s office signed a memorandum of understanding authorizing the NYPD to act as prosecutor in specific cases. In practice, the NYPD has overwhelmingly used this prosecutorial discretion to target protesters — but now those protesters are fighting back.

Late last week, after a years-long legal battle, Arminta Jeffryes, 24, was convicted of jaywalking during a 2016 protest against police killings of black and brown people. Only six people were charged with jaywalking in New York City in 2016.

But the case only went to trial because Jeffryes wanted to challenge the fact that the NYPD had acted as prosecutor. She and fellow protester Cristina Winsor (who was arrested at an earlier march for obstructing traffic) kicked off a movement that continues to challenge this arrangement. In November 2016, Jeffryes and Winsor filed a lawsuit against the NYPD and the Manhattan DA’s office, alleging the unconstitutionality of having prosecutors cede their sole responsibility to the police. Last September, a Manhattan Supreme Court allowed the lawsuit to move forward after the city tried to get the case dismissed.

“It is surely unfair if the prosecutors are concerned about protecting their employer and co-employees from civil liability, rather than being solely concerned about achieving justice for the people of the county who elected the District Attorney to accomplish that objective above all else,” Justice Lucy Billings wrote in her ruling.

The office of Manhattan DA Cyrus Vance declined a request for comment from The Appeal.

As their challenge moved through the court system, both Winsor and Jeffryes still faced criminal charges. Winsor was acquitted at her trial in October, where a judge berated the NYPD for inaccurately recalling the events which led to her arrest, statements that were easily disproven by video.

In late January, it was Jeffryes’s turn. The NYPD arrested Jeffryes after she led a group of protesters to a median in the middle of a street in lower Manhattan on March 7, 2016. The protest was part of #PeoplesMonday, a weekly march to businesses and public spaces throughout the city to highlight police killings. That night’s protest was held in honor of Gynnya McMillen, a black teenager who died in a Kentucky state-run juvenile detention center. Throughout the protest, Jeffryes helped marshal the protesters, stopping them when they didn’t have a green light, and giving the signal when it was safe for them to go.

But instead of focusing on the basic fact of whether Jeffryes violated any traffic laws, the NYPD’s case against her centered on how uncomfortable the protest had made police officers feel and whether it was meant to “intimidate” them.

Testifying against Jeffryes in court was NYPD Captain Paul Lanot, who was working out of Manhattan’s Seventh Precinct and oversaw the arrests that evening. He described an unruly scene, where the NYPD made the decision to arrest Jeffryes not because she was jaywalking, but instead to “correct her behavior.” The NYPD went to great lengths to make clear they weren’t trying to “stop” the ongoing protest, which would violate the participants’ constitutional rights, but simply trying to police their activities. Captain Lanot later admitted, however, that he considered arresting Jeffryes an effective way of stopping the protest because it would send a message to protesters.

NYPD attorney Neil Fenton repeatedly raised Jeffryes’s prior cases, in which she had been arrested as part of protests, including cases that had been dismissed. That tactic brought repeated objections from her attorney, Martin Stolar, which were sustained by Judge Charlotte Davidson. Stolar called Jeffryes’s fellow protesters to the stand to testify that she had helped marchers obey traffic laws. But on cross-examination of the protesters, Fenton questioned the basis of chants that had offended the police, such as “NYPD — Shut it down,” leading to surreal moments in the courtroom.

When Fenton asked a fellow protester who served as a witness why protesters would chant “Fuck the police,” she responded that they did so when police were violent at protests. When the protester offered examples of violence by the NYPD at protests, Fenton objected, leading to a reprimand from the judge.

“You’re objecting to her testimony?” asked an astonished Judge Davidson.

When Jeffryes herself took the stand on February 1, Fenton again cross-examined her about the protestor chants.

Fenton asked Jeffryes what “Shut it down” referred to, and if it might have referred to New York City streets. She said he was misinterpreting it.

When her own lawyer questioned her about the chant, Jeffryes elaborated. “Black bodies laying for four hours dead in the street,” she said. “Black bodies in the stairwells. Black bodies dead on their grandmothers’ couch. That’s what we’re trying to shut down.”

A frustrated Fenton objected and the judge overruled him.

After 11 minutes of deliberation, Judge Davidson returned with a guilty verdict. Jeffryes was given time served (at the precinct, the night of the arrest) and an $88 surcharge. Speaking with The Appeal after the trial, Jeffryes said she wasn’t surprised by the verdict and that she is hopeful NYPD prosecutions of protesters will not dissuade people from taking to the streets.

“They arrested me to set an example,” said Jeffryes. “They think they can arrest me and the whole march would shut down. Nah. The march continues and doesn’t end until we say it ends.”

Asked for final thoughts on the trial, Jeffryes emphatically said, “Fuck the police.”

Stolar, Jeffryes’s attorney, said he was disappointed that the court didn’t consider the possible First Amendment violations implicit in the arrest, especially because the police had openly admitted they made the arrest to send a message to the protesters. He said he’s now looking forward to the ongoing lawsuit that Winsor and Jeffryes filed in New York Supreme Court, challenging the practice of the NYPD prosecuting these cases.

“We have a [NY] Supreme Court justice who has said it’s unethical for the police department to provide their own lawyers to prosecute summons cases,” said Stolar, “and she wanted to see what would happen with the criminal cases before moving forward. The whole reason we went to trial in what is essentially a silly jaywalking case, is to preserve the issue as to who is the prosecutor and whether [Manhattan DA] Cyrus Vance can delegate prosecution, which he is elected to do, to people who are hired as police officers.”

Why Prosecutors Keep Cheating: The Catherine Fuller Murder and the Failure of the Brady Rule

Chris Turner, convicted of Catherine Fuller’s murder in a trial rife with prosecutorial misconduct, visits her grave

Why Prosecutors Keep Cheating: The Catherine Fuller Murder and the Failure of the Brady Rule

Since last fall, #MeToo has grown from a hashtag into a movement. Stories of sexual misconduct throughout society — especially in the entertainment and business and political spheres — have wakened millions of people to the colossal scale of the problem. One of the most hopeful results is that efforts are underway to go beyond simply naming the problem to recognizing the culture that has allowed or excused sexual harassment and assault, and to hold organizations accountable for changing that climate.

Something similar needs to happen with our justice system. Over the past year, newspapers and magazines and legal blogs have been full of stories about violations of the Brady rule: the legal tenet that prosecutors in criminal cases must disclose favorable, material evidence to the defense. But so far, nearly all the focus has been on the misdeeds of individual prosecutors, and the failure of the courts to hold them accountable. There has been has been little effort to link these actions to the culture of prosecution offices; to a working environment that has tacitly, if not overtly, approved and enabled those violations.

The 33-year odyssey of the Catherine Fuller murder case, which reached the Supreme Court last year, is a prime illustration of why prosecutors break the rule. It’s also a lesson on why the problem persists.

In October 1984, a woman named Aimee Davis told Washington, D.C. police Lt. Frank Loney that she’d seen a horrific murder. She was shooting up heroin in an alley off H Street NE when she saw a man she knew, James Blue, beat a woman to death.

“The motherfucker just got out of jail the same day,” she said, “and killed her for just a few dollars.”

Loney knew of the killing Davis was talking about. Less than four weeks earlier, Catherine Fuller, a 49-year-old wife and mother, had been found dead in an empty garage. Police had quickly called it a gang attack; perhaps the most vicious and senseless killing in city history. They were working overtime to crack the case.

Loney passed his report of Davis’s story to the homicide division. But somehow it got “lost in the shuffle,” as the government later put it. By the time Loney’s report reached the right detectives, they had arrested 17 other people for the crime. The story was front-page news, and the lead prosecutor, Jerry Goren, was preparing for the trial of his career.

Under the Brady rule, named for a 1963 Supreme Court case, Davis’s story was clearly exculpatory. It was an eyewitness statement naming a different perpetrator, with a completely different scenario. But her narrative didn’t fit with Goren’s case. He decided, on his own, that she wasn’t credible. Instead of giving the report to the defense, he buried it. Eight young men were convicted for the killing, despite their protestations of innocence, and sent to prison for life.

Fifteen years later, the work of a dogged Washington Post reporter led to the discovery of this hidden evidence, along with other information favorable to the defense. It took 10 more years to win a hearing. Finally, the case — U.S. v. Turner — went all the way to the Supreme Court.

In June 2017, the Court, by a 6–2 vote, denied the men any relief. The majority opinion, by Justice Stephen Breyer, echoed both lower courts in stating that withholding Davis’s story was wrong; that exculpatory information should “be disclosed to defendants as a matter of course.” But he deemed the withheld evidence “too little, too weak, or too distant from the main evidentiary points” to have unfairly prejudiced the accused, so the convictions stood.

The Fuller case isn’t unusual; prosecutors regularly withhold exculpatory information. Alex Kozinski, former chief judge of the 9th Circuit, the nation’s largest appeals court, described the situation this way: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

Kozinski, who recently resigned because of extensive sexual misbehavior, is right about the problem, but only partly right about the cure. Judges should — yet seldom do — punish violations that get to court. Stronger enforcement would no doubt scare some erring prosecutors straight. But because most Brady misdeeds don’t attract a relentless reporter or lawyer, they never come to light. Only prosecutors can stop them, since only they are aware of them.

So why is there virtual silence from prosecuting attorneys about this problem? Why do so many of them routinely break the rule? Or defend their colleagues who do?

It’s not due to some ambiguity in the guiding principle. The law is clear: the government’s “interest in a prosecution is not that it shall win a case, but that justice shall be done.” It’s because, in practice, convictions have become the goal. Prosecutors are not praised and promoted for making Brady disclosures, but for getting guilty verdicts. That’s their mindset.

In this case, it would have been a simple matter for Goren to hand Davis’s statement to the defense. Yet he hid the information to protect his prosecution. To him, the accused were guilty of a terrible crime, and justice meant convicting them of Fuller’s murder. But he didn’t have a strong case. If Davis was right, his entire prosecution was wrong. He didn’t want to lose the biggest trial of his life. So he withheld the report.

Coverage of the Fuller murder trial.

As a former public defender in Philadelphia and D.C., I know lots of conscientious prosecutors. But too many others do whatever they can to subvert the Brady rule. Sometimes they make late disclosures, even during trial, so it’s difficult to incorporate any new, helpful information into a defense. Sometimes they resort to massive document dumps, which makes it hard to find a useful piece of evidence among hundreds of pages. And sometimes, as Goren did here, they simply hide Brady material.

In 2009, I represented Joseph Harrington, who was accused of stabbing a man to death in a D.C. park. After deliberating several days, and announcing once that they were hung, the jury convicted him of murder. Less than two weeks later, mostly through blind luck, I learned that the prosecutor had concealed the fact that her star witness had been seen at the crime scene holding a large knife. And when an officer asked the witness about it, she had replied: “Self-preservation is the first rule of law.”

After extended arguments, the trial judge ruled that the non-disclosure was done “consciously, deliberately, and as a tactic,” and reversed the conviction. But it left me wondering how many other cases I might have worked where favorable evidence remained hidden, and my clients suffered unfairly; where a prosecutor’s desire to win overwhelmed the duty to disclose.

According to ex-judge Kozinski, that attitude is more the norm than the exception. During a 60 Minutes interview last April, he had this exchange with reporter Lesley Stahl:

Q: How much of a stigma is it to not turn over exculpatory evidence? Is it a huge blemish on a prosecutor, on a lawyer?

A: I don’t think so. I think they consider it feathers in their caps.

A related Brady problem is that decisions on whether evidence is exculpatory, or material, are made by prosecutors. In this context, objectivity is nearly impossible. They are invested in their case, in their theory. Like all of us, they are subject to confirmation bias: the tendency to favor information that supports our assumptions, and discount information that doesn’t.

Testifying about his decisions in the Fuller case, Goren frankly admitted that he had evaluated Davis’s story in light of his fixed belief that the killing was a gang attack, and that everyone he had arrested was involved. Given that starting point, it was inevitable that he would find Davis’s account of a lone, different perpetrator incredible, and conclude that he could withhold the information because it wasn’t material.

The solution is as obvious as it is difficult. Just having the Brady rule isn’t nearly enough. Prosecutors’ offices need to make fairness the focus, rather than winning. They need to reward lawyers who follow the rule, regardless of the outcome in a case. Conversely, whether the courts act or not, they need to punish those who violate the rule. The many honest prosecutors need to hold their weaker colleagues accountable. In short, the entire prosecution climate needs to be transformed.

The Fuller case shows how much work remains.

In his opinion, Justice Breyer made much of the fact that the government’s lawyer “assured the Court … that subsequent to petitioners’ trial it has adopted a ‘generous policy of discovery’ in criminal cases.” He had avowed that, if the Fuller trial were held today, the hidden evidence would surely be disclosed. Yet violations continue, as the Harrington case shows.

And at the oral argument on March 29, 2017, a score of prosecutors from the Office of the U.S. Attorney talked among themselves as they waited in the lawyer’s line to get seats inside. Nothing any of them said suggested any shame or chagrin at Goren’s actions in the Fuller case. Nothing indicated any concerns about the defendants left in the dark, about young men who had staked their futures on a belief that the system was fair. What they repeatedly expressed was near-outrage that the Court was even hearing the matter, even considering a sanction.

As long as that culture abides, Brady violations will be business as usual.

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The Sentencing of Larry Nassar Was Not ‘Transformative Justice.’ Here’s Why.

For those of us who believe our “justice” system must be transformed, moments such as this one are a test of conviction.

Judge Rosemarie Aquilina looks at Larry Nassar as he listens to a victim’s impact statement
Scott Olson / Getty

The Sentencing of Larry Nassar Was Not ‘Transformative Justice.’ Here’s Why.

For those of us who believe our “justice” system must be transformed, moments such as this one are a test of conviction.

On January 24, Larry Gerard Nassar, the former national team doctor of USA Gymnastics, was sentenced to 40 to 175 years in prison for the sexual assault of minors. The sentence was handed down with biting words from Judge Rosemarie Aquilina, after a week of intense and moving pre-sentencing statements from Nassar’s victims. Aquilina noted that if the Constitution did not forbid cruel and unusual punishment, she might have sentenced him to be made a victim of sexual violence. She settled for an unsurvivable prison sentence, saying, to great public applause, “I just signed your death warrant.

Amid our society’s current cultural upheaval around sexual violence, Aquilina struck a chord with many survivors who want and need to believe that justice under this system is possible. By offering the mic to survivors, and by aiming violent, vindictive language at a widely loathed defendant, Aquilina has been rewarded with the status of instant icon. Unsurprisingly, she is also reportedly considering a run for the Michigan Supreme Court. The case launched numerous think pieces, including a misguided, misinformed praisesong entitled, “The Transformative Justice of Judge Aquilina,” by Sophie Gilbert.

Gilbert’s article highlights how this moment challenges those committed to transforming our carceral system — including people, like us, who are committed to justice for survivors of sexual assault and who also believe that prisons are the wrong answer to violence and should be abolished. We decry the system and advocate for change that is long overdue. Yet when that system ensnares people we loathe, we may feel a sense of satisfaction. When we see defendants as symbols of what we most fear, and that which we most greatly despise, we are confronted with a true test of our belief that no justice can be done under this system.

Yet like all tests of faith, this moment calls on us to recommit ourselves to true transformative justice. And to do that, we must remind ourselves what transformative justice is, and why it looks nothing like the civil death that Aquilina delivered last month.

Transformative justice is not a flowery phrase for a court proceeding that delivers an outcome we like. It is a community process developed by anti-violence activists of color, in particular, who wanted to create responses to violence that do what criminal punishment systems fail to do: build support and more safety for the person harmed, figure out how the broader context was set up for this harm to happen, and how that context can be changed so that this harm is less likely to happen again. It is time-consuming and difficult work done by organizations like Generation 5Creative Interventions and the Bay Area Transformative Justice Collective. It is not grounded in punitive justice, and actually requires us to challenge our punitive impulses, while prioritizing healing, repair and accountability.

A truly transformative justice would mean that a single survivor coming forward to tell their tale of harm years ago would actually have been believed (the first time). We would immediately focus on addressing the harms perpetrated, centering on the concerns and experiences of the person who was harmed. Next, we would also focus on the person responsible for the harm — but without disregarding his or her humanity. This means we have to acknowledge the reality that often it is hurt people who hurt other people. Understanding that harm originates from situations dominated by stress, scarcity, and oppression, one way to prevent violence is to make sure that people have support to get the things they need. We must also create a culture that enables people to actually take accountability for violence and harm. The criminal punishment system promises accountability for violence, but we know that in actuality it is a form of targeted violence against poor people, people with disabilities, and people of color, and doesn’t reduce violence in our society.

Real accountability calls us to respond to harm that occurs because the person responsible was struggling with mental illness by providing high quality treatment. If violence emerged because of poverty and desperation, then creating survivable conditions might prevent future harm. If violence originated because of unexamined misogyny or sexism learned in the family or broader culture, a community process that invites the person responsible to examine that would be more likely to lead to a positive outcome than incarceration in a cell, where the person is likely to experience more violence.

Finally, in a truly transformative model of justice, we would not allow those harms to be shielded by powerful people or institutions. We would insist on focusing not just on individuals but also the institutions and structures that perpetuate, foster, and maintain interpersonal violence. In Nassar’s case, this would include the administrators at Michigan State University and USA Gymnastics who ignored initial disclosures of sexual assault and took no actions to stop his violent behavior. Judge Aquilina’s ruling accomplished none of these aims.

The criminal punishment system promises accountability for violence, but in actuality it is a form of targeted violence against poor people, people with disabilities, and people of color, and doesn’t reduce violence in our society.

But, some say, even if the system itself is unjust, it can sometimes deliver justice — and we ought to recognize that justice when it comes. Let us be clear: Our punishment system, which is grounded in genocide and slavery, and which has continued to replicate the functions and themes of those atrocities, can never be made just. Prisons are an iteration of structural racism in the United States, which allows some people to be treated as less than human, and therefore reasonably subject to all manner of exploitation, torture and abuse. This is the legacy of anti-Blackness in the United States. Even when the system ensnares a non-Black person, the prison industrial complex remains a structurally anti-Black apparatus, firmly rooted in the United States’ ongoing reliance on the financial exploitation and social control of Black people. This can be seen in persistent disparities at all levels of the criminal legal system, from arrest through imprisonment.

Even if we firmly believe Nassar’s sentence unjust, we may ask ourselves: Should we just sit by as the public applauds Nassar’s sentence? Who wants to be considered an apologist for a serial rapist? After all, the reality is that most people who rape will never go on trial, let alone be convicted and sentenced to prison. So we wonder if we should just keep quiet and let the system “work” this time by imposing a draconian sentence.

But perhaps above all, we may fear the questions we will be asked if we stand up against Nassar’s sentence. What will we say when people who are already hostile to transformative justice aggressively demand a “solution” for addressing Nassar’s abhorrent violent actions? “What’s your alternative to a death sentence for someone who commits acts as heinous as Nassar’s?” some will spit out derisively, as if the onus to create a safer society falls on the shoulders of single individuals rather than being a collective project decided together in community. One might be tempted to throw one’s hands in the air and say, “You know what, the devil you know is better than the devil you don’t.” In other words, we remain stuck with the ineffective prison system as the remedy when sexual violence, for example, is perpetrated.

This is not viable in our opinion. We must depart from the crowd that applauds the signing of “death warrants.” Now, more than ever, we must call people toward a new vision of justice.

Granted, our vision is incomplete. There is no roadmap for justice, because under this system, we have never seen it. But the current system has been thoroughly mapped, and it has already failed. While we all harbor fears about what it means for “dangerous people” to walk among us, we know in truth that such people have never ceased to walk among us, and that the purpose of the carceral system has never been to sort the “good” from the “bad.”

We must also acknowledge that we simply do not know, and cannot know, what the occurrence, prevention or resolution of harm could look like in our society under more just conditions. So long as the structures that instill desperation are maintained, some people will be shaped by desperation. And so long as we perpetuate mass criminalization — a security blanket with all the substance of “The Emperor’s New Clothes” — we will not know what it would look like to live differently. If our rage and disgust can prompt us to endorse the violence of the carceral state, how can we expect to reach those who are skeptical of our view?

Transformative justice is comprised of creative and dynamic experiments happening across the world. It is also a revival of tools that were taken from us by a society that did not trust our ability to resolve harm without brutality. As educator and organizer James Kilgore has written, “Pre-1824 tribal courts embodied a restorative approach that greatly differed from the punitive, adversarial system of the United States.” Deeming Native justice insufficiently punitive, and therefore uncivilized, the federal government assumed jurisdiction over all violations of the Major Crimes Act on Native reservations. The results, for Native people, have been devastating, as difficult conditions on reservations easily facilitate the criminalization of Native people, fueling high rates of incarceration.

That doesn’t mean all hope is lost. Efforts like the Hollow Water First Nations Community Holistic Healing Circle, a community justice initiative geared toward reconciliation, illustrate that reclamation is possible. By establishing a healing justice practice grounded in Anishnabe teachings, the Hollow Water community has developed a means to interrupt cycles of intra-community abuse and incarceration. But as with so many justice infrastructures lost to colonial violence, we are not simply talking about the need to dismantle a larger system. We are talking about a process of construction and creativity, for all peoples whose systems of justice were upended or eradicated by the American political project.

Neutralizing perceived threats, in an endless game of legal whack-a-mole, is not a path to safety. To create safer environments, people and circumstances must be transformed. We cannot discuss policing, prosecutions, judges or prisons system without acknowledging the prison system as a mechanism of social death and exploitation.

When you say, “What would we do without prisons?” what you are really saying is: “What would we do without civil death, exploitation and state-sanctioned violence?” That is an old question and the answer remains the same: Whatever it takes to build a society that does not continuously rearrange the trappings of annihilation and bondage while calling itself “free.” To know freedom or safety, and to make peace with our own fears, passive punishments must be replaced with active amends and accountability. Transformation is possible, but it will not be televised, and it will not be facilitated by the likes of Judge Rosemarie Aquilina.

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