Good news: NYC prosecutors are keeping track of unreliable cops. Bad news: The list is secret.
“Prosecutors in all five boroughs of New York City are quietly building internal databases to track police officers who may have credibility problems as witnesses at trial,” George Joseph reports for WNYC this week. These lists “are already in use in Brooklyn, Manhattan, Queens and the Bronx, and the Staten Island DA’s office is also developing one, according to an investigation by WNYC.” They include civil lawsuits, criminal records, substantiated misconduct allegations, and judicial determinations that an officer’s testimony was not credible. “District attorney’s offices use these lists to alert their prosecutors to potential problems with police witnesses. Sometimes, they’ll turn over information on individual officers to the defense, based on the defendant’s right to know.” [George Joseph / WNYC]
In response to these findings, defense attorneys and civil-liberties advocates called on prosecutors to make the databases public, allowing for a review of past convictions based on testimony by potentially tainted officers. “The notion that district attorneys in New York are aware of police officers who have perjured themselves in criminal prosecutions, have put them on a list of people not to be called in cases as witness, is a public scandal,” said Chris Dunn, legal director of the New York Civil Liberties Union. “We cannot have a criminal justice system that allows for police officers to perjure themselves, and then for that to be a secret.” [George Joseph / WNYC]
Some former prosecutors note that most of the officers with documented credibility issues make a disproportionate number of arrests, which could call those arrests into question. Historically, courts have not forced prosecutors to turn over credibility information about officers before plea negotiations, the method by which the vast majority of cases are resolved. New York’s new discovery law, going into effect in 2020, could speed up such disclosures. [George Joseph / WNYC]
In Philadelphia, the DA’s office released a similar list last year under court order. In response, public defenders petitioned the DA’s office to re-examine more than 6,000 past convictions. “It should lead to that, because police perjury cannot be the basis for criminal convictions,” Dunn said. [George Joseph / WNYC]
Prosecutors rely on police officers to build their cases. When those officers commit misconduct and lie, their credibility suffers and the state’s cases are compromised. Technically, prosecutors are required to turn over misconduct information to defense attorneys because, under the Brady rule, defendants have a constitutional right to information that could exculpate them. But prosecutors have to turn it over only if they know about it, and they’re not required to go out of their way to find it, says Bennett Gershman, a law professor at Pace University. In theory, prosecutors should want to root out officers with integrity issues to avoid false convictions, but many of them turn a blind eye.
While it’s heartening to hear that New York prosecutors care about the integrity of their law enforcement witnesses to keep such lists, they should not retain exclusive access to them. Evidence about officer credibility should not be placed solely in the hands of prosecutors who are adversaries, incentivized to win. People facing criminal charges should not have to hope that those adversaries disclose information that, under Brady, the defense is constitutionally entitled to have.
Until recently, California was the only state in which even prosecutors could not directly obtain officer personnel files. A new measure, which took effect Jan. 1, “allows citizens to view records from sexual assault cases, incidents in which officers lied while on duty, officer-involved shootings, and other use-of-force incidents,” P.R. Lockhart wrote for Vox. In December, a police union in San Bernardino filed a lawsuit “demanding that the records law not be applied retroactively, saying that it would violate officers’ rights.” [PR Lockhart / Vox] They lost: Law enforcement agencies in California must now release police misconduct records even if the behavior occurred before the new transparency law took effect. [Associated Press]
But last week, Darwin BondGraham, writing for The Appeal, reported that while the legislation was still under consideration, some California city governments shredded files to make disclosure impossible. In late 2018, just before the law took effect, “Fremont, a suburban Bay Area city 25 miles south of Oakland, destroyed a multi-decade archive of police records,” he wrote. A public information officer for the Police Department said that the purge was routine and unrelated to the new law, but, as BondGraham writes, the “timing of the purge, however, ensures that numerous records that may have been disclosed under SB 1421 can never be reviewed by the public.” [Darwin BondGraham / The Appeal]
Fremont also recently changed its classification system for review board files “so that the public is prevented from examining officer-involved shootings that don’t result in internal-affairs investigations.” Union City, a nearby suburb, also destroyed a large number of police records in June 2018, as the transparency law was moving through the legislature. “Police shredded reviews of officer-involved shootings, vehicle collisions resulting from high-speed pursuits, and use of force reports from 1983 to 2015.” Other local governments are following suit, including Yuba and Livermore. [Darwin BondGraham / The Appeal]
Even where the records exist, accessing them is a challenge. It is up to interested parties, especially journalists, to request the records, respond to objections raised by police unions, and try to tell both individual stories of misconduct and the larger narrative of policing patterns in California. To that end, in a rare collaborative move among competitors in a struggling industry, more than 30 news organizations have decided to work together on the widespread release of police misconduct records. The California Reporting Project has brought publishers and broadcasters big and small together to coordinate their work, share their findings, and inform one another’s reporting. “We had a real opportunity to serve the public by working together,” wrote Megan Garvey, managing editor of Southern California Public Radio’s KPCC. “Journalists started to think about what it would take to actually acquire those documents and then report on what they told us about patterns in police behavior.” [Joshua Benton / NiemanLab]