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Lawsuit: Manhattan D.A.’s Office Tracks Cops With ‘Credibility’ Problems, But Refuses To Release Its List

The office has criticized the NYPD for shielding officers’ misconduct histories, but it won’t share its own information on police dishonesty.

District Attorney Cy Vance
Andrew Burton/Getty Images

Lawsuit: Manhattan D.A.’s Office Tracks Cops With ‘Credibility’ Problems, But Refuses To Release Its List

The office has criticized the NYPD for shielding officers’ misconduct histories, but it won’t share its own information on police dishonesty.

In July, the Manhattan district attorney’s office blasted the New York City Police Department over its refusal to share information on officers’ misconduct records with prosecutors pretrial. The office argued such information—which speaks to the credibility of police officers—is critical for prosecutors seeking to vet their witnesses and decide whether and how to charge a case.

But a new court petition, filed Monday, presents evidence that the Manhattan DA’s office keeps its own internal records on police officers with questionable credibility, and is refusing to disclose this information to defense attorneys and the public at large.

Access to such information could prevent wrongful incarceration, defense attorneys argue, because plea deals—how 97 percent of felony cases that result in convictions are settled in New York City—often turn on police officer testimony. Although prosecutors are technically required to disclose exculpatory material about officers that could help the defense under the Supreme Court decision Brady v. Maryland, defense attorneys argue these disclosures are seldom exhaustive and can be legally submitted weeks before trial starts, long after plea negotiations may have ended.

“The release of these names would impact the plea bargaining process in significant ways,” said Bennett Gershman, a Pace University law professor and former Manhattan prosecutor.

“Right now it’s a crapshoot for defense attorneys. They don’t know what a prosecutor has.”

The petition, filed by Andrew Stengel, a defense attorney and former Manhattan prosecutor, requests the DA’s office turn over a list he asserts it has of police officers with any indication of “adverse credibility findings” since Jan. 1, 2017. As evidence of the list’s existence, he points to a February 2018 trial for one of his clients during which the Manhattan DA’s deputy bureau chief, Jeffrey Levinson, publicly stated, “We have a list of officers where we—that have adverse credibility findings, that have been found to have testified falsely.”

According to the suit, Levinson’s statement didn’t surprise Stengel, who since 2014 had been aware of such a list, known colloquially to his then-colleagues within the Manhattan DA’s office as the “naughty list.”  

Judges issue adverse credibility findings when they have found officers’ testimony to be untruthful. In a 2011 speech, District Attorney Cy Vance said the agency routinely reviewedall circumstances in which the credibility of a police officer is called into question.” According to Vance, “Every judicial adverse credibility finding is investigated to determine whether disclosure is warranted when the officer testifies in the future.” How the office chooses which officers warrant future disclosures and how this information is consolidated internally remains unclear.

In March, Stengel filed a Freedom of Information Law request asking for the list, but the DA’s office denied his request, saying that it does not have a “list” as defined by his request. “While this office does maintain information regarding a court’s ‘adverse credibility finding,’” the denial states, “these records are prepared in anticipation of litigation and are thus exempt from disclosure.”

Stengel appealed the ruling, to no avail, so he decided to file his suit. “The very purpose of the list is for the adverse credibility findings of police officers to be disclosed by the DA’s Office to defendants,” the petition argues, noting that the office’s claim to have information but not a “list” is a “semantic decision without a meaningful difference.”

The DA’s office declined to comment on the petition by publication time.

A similar battle is playing out in Los Angeles over a sheriff’s list of tainted cops, where the police officer’s union is working to prevent the release of the list to prosecutors. Earlier this year, Philadelphia prosecutors released such a list under court order, after the Philadelphia Inquirer reported on its existence. The public defender’s office reportedly filed more than 6,000 petitions for new trials as a result. Philadelphia DA Larry Krasner is also reportedly in the process of developing a more comprehensive list than his predecessor’s, as well as a new protocol for sharing information with defense attorneys.

Following news about Philadelphia’s list, The Appeal filed a Freedom of Information Law request asking the Manhattan DA’s office to turn over any of its own records on police officers with “histories of lying, fabricating evidence, or engaging in misconduct.” But the office has not yet responded to that request.

This petition is not the first time Vance’s office has been accused of operating without transparency. The office has been criticized for failing to adopt open file discovery policies, which make documents available after arraignment in other jurisdictions, like Brooklyn. And last week, the Daily News reported that the FBI is looking into the office’s alleged dropping of wealthy clients’ cases after receiving donations from defense attorneys.

Though it is unclear what information is maintained in the Manhattan DA’s adverse credibility records, Eliza Orlins, a Legal Aid Society staff attorney, said access to officer names could inform her pretrial strategy. A New York Times investigation published in March revealed the prevalence of “testilying,” when police officers fabricate their witness statements. If a flagged cop were testifying about one of her clients, Orlins says she could do further research on the officer and then argue for a dismissal.

Currently, Orlins says that officer misconduct disclosures by prosecutors are rare, and defense attorneys are forced to pool together their own bits of information. “I’ll report back when a cop is found uncredible at a hearing, or accused of other misconduct,” she explained. “But it’s hard for us to know about all of it.”

Program Meant To Fight Terrorism and Narcotrafficking Is Being Used to Target The Undocumented Community

Opposition to Operation Stonegarden, however, is spreading; one Arizona county just rejected over $1 million of its funds.

Jorge Arroyo and his family in Texas this month.
Debbie Nathan

Program Meant To Fight Terrorism and Narcotrafficking Is Being Used to Target The Undocumented Community

Opposition to Operation Stonegarden, however, is spreading; one Arizona county just rejected over $1 million of its funds.

On Feb. 7, air conditioning repairers Jorge Arroyo, 31, and his brother Inés were out on the job in Aransas County, Texas, about 150 miles southeast of San Antonio along the Gulf of Mexico. At noon, they piled into their truck to get lunch. When they approached a cafe, an Aransas County sheriff’s deputy stopped them and said the license plate on the truck was dirty and unreadable. The deputy also said Inés had failed to signal when he made a turn.

Inés, a legal resident of the U.S., showed his Texas driver’s license to the deputy. But then the deputy focused on Jorge and asked for a Texas ID. Even though people in the U.S. who aren’t driving a vehicle or suspected of a crime can refuse to produce identification, Jorge displayed his ID card from Mexico. The deputy then asked if he was in the U.S. illegally. After Jorge shook his head and said that he was not in the country legally, the deputy handcuffed him and called the Border Patrol.


Jorge has been in the U.S. for 12 years. He and his partner have two Texas-born daughters, and he was supporting his family with a steady job in the heating and cooling business. But within minutes of encountering the sheriff’s deputy, he was locked up at the Aransas County jail, awaiting transfer to ICE detention.   

As Jorge sat behind bars, the deputy filled out an “Intelligence/Significant Event Report” form  that was then handed over to a FEMA-funded and Border Patrol-administered program called Operation Stonegarden. In operation by 2004, Operation Stonegarden received $85 million this year for distribution to state troopers, sheriff’s deputies, constables, and city and tribal police. As of February the program was operating in 157 counties mostly on and near the southern border, purportedly to assist Border Patrol in combating serious, border-related crime such as narcotrafficking and terrorism.

Local law enforcement, however, appears to use Operation Stonegarden to round up undocumented immigrants like Jorge. It’s difficult to quantify how often the program is utilized to arrest undocumented people because Border Patrol instructs law enforcement to refuse open records requests for such data. But there is no doubt that the program’s funds have been used to target the undocumented community. In 2007, Otero County, New Mexico, and its sheriff were sued for working during Operation Stonegarden-paid time to illegally interrogate low-income Latinx people about their immigration status and to search homes for undocumented immigrants. In 2008, a federal judge issued an injunction forbidding use of Stonegarden resources in this manner. In 2009, concerns about racial profiling prompted the sheriff of Jefferson County, Washington, to refuse Operation Stonegarden funds. Concerned that his officers’ Operation Stonegarden work could damage relations with the Latinx community, the police chief of Indio, California, cut ties with the program in 2012.

Due in large part to open records request refusals, secrecy still surrounds Operation Soundgarden. Even immigration rights advocates know little about the program. That was true for years in Pima County, Arizona, which has more than one million residents and is the state’s second most populous county.

But in February, ACLU of Arizona attorney Billy Peard attended a Pima County Board of Supervisors meeting and noticed that grants for $1.4 million for Operation Stonegarden were on the agenda. The county received funds from the program for 12 years—in addition to the sheriff, six police departments participated. Peard spoke against Operation Stonegarden during the public comment period, and supervisor Richard Elias, a Democrat, urged rejection of its funds. The board quickly voted against it.  Two weeks later the board reinstated the grants pending review of possible problems with Stonegarden, including racial profiling. As the review played out over the following months, the community learned how the program’s funds have little oversight, fuel significant overtime spending for police, and are often used for activity unrelated to border security, such as crowd control at parades, soccer games, and funerals.

While Pima County reviewed Operation Stonegarden in the spring and summer,  Peard contacted labor, faith-based, and civil rights activists to pressure the Board of Supervisors to reject the program.  Because of the furor surrounding Trump administration’s separations of immigrant families, anti-Operation Stonegarden sentiment had grown to the point where the Board of Supervisors voted against using $1.4 million in grant funds in September.  It was an unprecedented rejection of the program for a county as large as Pima.

No political opposition has surfaced in Aransas County, where Jorge Arroyo was turned over to Border Patrol. In February, he paid $4,000 bond to be released from ICE custody pending a removal hearing scheduled for next year plus $2,500 for a lawyer. It was  money he was saving to buy a house for his family. Operation Stonegarden killed that dream, and now his hopes are simply focused on not being deported.

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Ohio’s Issue 1 ballot initiative could ‘deal a blow’ to mass incarceration

Ohio’s Issue 1 ballot initiative could ‘deal a blow’ to mass incarceration

What you’ll read today

  • Spotlight: Ohio’s Issue 1 ballot initiative could ‘deal a blow’ to mass incarceration

  • In Alabama, Black people are 4 times more likely than white people to be arrested for marijuana possession

  • Washington Supreme Court bars life sentences for minors

  • But Illinois Supreme Court upholds life sentence for 18-year-old

  • Dashboard camera footage shows California cops assaulting a man and trying to cover it up

  • Marijuana, legally purchased in Oregon, gets man an 8-year sentence in Mississippi

In the Spotlight

Ohio’s Issue 1 ballot initiative could ‘deal a blow’ to mass incarceration

Next month, Ohio residents will vote on Issue 1, a ballot initiative that could “deal a blow to the war on drugs and mass incarceration,” according to German Lopez of Vox. It would “reduce drug possession offenses to misdemeanors, so they are no longer classified as felonies with harsher penalties” for a person’s first two convictions. It would “then use the money saved (because the state wouldn’t lock up as many people) on addiction treatment and crime victim funds.” [German Lopez / Vox] And it would make the new drug statutes retroactive: People currently incarcerated for drug offenses could petition for new sentences. If Ohio passes the initiative, it would join five other states that have already reclassified drug possession as a misdemeanor, all since 2014 (California and Oklahoma have done so via referendum). See also, our Political Report 10/18 edition.

It would also allow most prisoners, except for those convicted of murder, rape, or child molestation, to reduce their prison sentences by up to 25 percent by participating in prison rehabilitation programs.

Issue 1 would also bar judges from sending people to prison because of minor probation violations that aren’t themselves a crime. Today, people on probation are subject to long periods of incarceration for what are often called “technical violations,” which can include missing an appointment. Across the country, a significant percentage of prison admissions every year are for technical violations of parole or probation. As a public defender, this Daily Appeal curator saw clients incarcerated for missing probation check-ins, including, once, an appointment that her client was not informed about until after the appointment time had passed.

Policy Matters Ohio, a group that backs Issue 1, estimates that these provisions combined would decrease the prison population by approximately 10,000. The Urban Institute finds that simply by making drug possession a misdemeanor, the initiative would cut it by 3,400. The warnings about the safety risks of reclassifying drug possession as a misdemeanor are not supported by a new Urban Institute study about the impact that doing so has had in five states. “Reducing incarceration for drug offenses can produce significant public safety benefits when paired with investments in drug treatment and crime prevention strategies,” the authors write. See also, our Political Report 10/18 edition.

Many outspoken opponents, most of them Republican, seize on the funding that Issue 1 has received from donors outside the state, including the Chan Zuckerberg Initiative, the Open Society Policy Center, and the Open Philanthropy Project. This argument is difficult to take seriously, however, since in 2010 and 2014, the Koch brothers poured funds into statehouse races, giving Republicans control over 70 percent of state legislatures, the highest number in the party’s history. Former Republican Speaker of the House Newt Gingrich has raised some eyebrows by teaming up with Van Jones to write an op-ed in support of Issue 1.

The Ohio police officers union, prosecutors’ union, and sheriff’s association have come out against the ballot initiative, as law enforcement seems to have adopted a knee-jerk reaction in opposition to most criminal justice reforms. Perhaps somewhat surprisingly, many groups of judges have come out against it, including judges who preside over drug courts, which are meant to give fair and treatment-oriented sanctions to those charged with drug offenses. “It eliminates the single most important factor in rehabilitating people and helping them get off drugs, which is the threat of imposing a prison sentence for violating probation or continued criminal behavior,” Ohio Judge Jeannine Pratt wrote in a recent op-ed.

But this critique does not stand up to scrutiny. Responding to similar arguments from a different drug court judge, David Singleton, a law professor and the executive director of the Ohio Justice and Policy Center pointed out that Issue 1 does not take away a judge’s ability to send a person to jail, only the ability to send that person to prison for long periods of incarceration. “We don’t need the sledgehammer of prison,” said Singleton. “There are other ways to hold people accountable. For instance, graduated responses. If behavior is negative, there’s a consequence that is certain, swift, proportionate to what the violation was, and fair. There’s a range of options that judges have on the table.” A judge could obligate a defendant to come in more often, wear an ankle monitor, or do a stint in jail. [Dan Hurley / Cincinnati Edition]

And research has shown that swift and certain punishments can be effective. A now-famous study of the so-called HOPE program in Hawaii found promising results. The program began with a formal warning, given by a judge in open court, that any violation of probation will result in an immediate, brief jail stay. Probationers were not required to appear before judges regularly, but were subject to random drug tests without advance notice. If they failed, they were sentenced to a jail stay lasting a few days, to be served on the weekend or whenever would not interfere with the person’s work schedule. After repeated missed or positive drug tests, residential or other treatment might be mandated. Compared to probationers in a control group, after one year those in the HOPE program were found to be 55 percent less likely to be arrested for a new crime and 72 percent less likely to use drugs. [National Institute of Justice]

“As a judge, I always consider rehabilitation rather than incarceration,” wrote Judge Pratt. “If Issue 1 passes, judicial discretion will be removed and we as a Judiciary will no longer be able to determine the length of offender’s prison sentence nor will we be able to send multiple repeat drug offenders to prison under most circumstances.” Decreased power seems to be a more sincere reason for judicial opposition, much like the judicial opposition to the initial bail reform bill in California. Another Ohio drug court judge recently hosted a town hall in his own courtroom about Issue 1, inviting only those who already agreed with him. There, he lamented that if Issue 1 passes, “my drug court would shrink drastically.”

Stories From The Appeal

A mural in Selma, Alabama, depicts police violence during the Selma to Montgomery
civil rights march. [Justin Sullivan/Getty Images]

In Alabama, Black People Are 4 Times More Likely Than White People to Be Arrested for Marijuana Possession. A new report details the state’s “War on Marijuana” ahead of a key DA election. [George Joseph]

Stories From Around the Country

Washington Supreme Court bars life sentences for minors: Yesterday, Washington State’s Supreme Court ruled that sentencing people to life in prison without parole for crimes committed when they were under 18 is unconstitutional, joining 20 states and Washington, D.C., who have already outlawed the practice. The 5-4 ruling said that the sentence “constitutes cruel punishment,” and fails to achieve the legal goals of retribution or deterrence because children are different from adults. This ruling comes shortly after a unanimous decision that struck down the death penalty, finding that its current application is unconstitutional. This case addresses “an appeal filed by 39-year-old Brian Bassett, who was convicted of three counts of aggravated first-degree murder for fatally shooting his parents and drowning his 5-year-old brother in a bathtub in 1996, when he was 16,” according to the Seattle Times. [Paige Cornwell and Hannah Rodriguez / Seattle Times]

But Illinois Supreme Court upholds life sentence for 18-year-old: “The Illinois Supreme Court Thursday declined to expand sentencing protections afforded to juveniles to an 18-year-old offender, reversing an Illinois appellate court ruling that held unconstitutional a 76-year sentence without hope of parole to a defendant who committed murder at 18,” reports Injustice Watch. The appellate court in this case had found that the sentence violated the Illinois Constitution’s requirement that sentences consider the goal of rehabilitation: “[I]t shocks the moral sense of the community to send this young adult to prison for the remainder of his life, with no chance to rehabilitate himself into a useful member of society.” But the Illinois Supreme Court disagreed. “New research findings do not necessarily alter that traditional line between adults and juveniles,” it found. “For sentencing purposes, the age of 18 marks the present line between juveniles and adults. As an 18-year-old, defendant falls on the adult side of that line.” [Emily Hoerner / Injustice Watch]

Dashboard camera footage shows California cops assaulting a man and trying to cover it up: Two police dashboard camera videos suggest that an Orange County Sheriff’s Department officer brutally assaulted a man and worked with a supervisor to cover up the incident. In the early hours of Aug. 19, police officers found Orange County resident Mohamed Sayem intoxicated and sleeping in his car in a parking lot. When Sayem tries to get out of the car, one of the officers pins him against the car, and punches him repeatedly and rapidly in the face. “By the third punch, Sayem appears to lose consciousness and begins to collapse,” writes Matt Ferner for HuffPost. The officer continues to deliver blows. The officer later claimed that Sayem had tried to “bear hug” him, that he had grabbed his vest and refused to let go, and that he had used racial slurs, all of which are contradicted by the dashboard camera footage. According to the footage, after a supervisor at the scene checked his body camera, one of the officers, “apparently startled,” said, “You’re recording this now?” Another said, “You’ve been recording this the whole…” and before the sentence was completed, another officer appeared to flip off the supervisor’s recording device. [Matt Ferner / HuffPost]

Marijuana, legally purchased in Oregon, gets man an 8-year sentence in Mississippi: Driving through the Mississippi Delta last year, Patrick Beadle, a Jamaican-born Rastafarian musician from Oregon, was pulled over. “In the car was nearly three pounds of marijuana, which Beadle said he obtained legally in Oregon with his medical marijuana license to help treat the chronic pain in both of his knees after years of playing college basketball,” according to the Washington Post. “In Oregon, he might have faced a civil fine for possessing too much marijuana at one time.” But in Mississippi, he was charged with trafficking in a controlled substance, an offense with a maximum sentence of 40 years in prison. In July, an all-white jury took all of 25 minutes to convict Beadle, who is black.” There was no evidence of trafficking. This week, Beadle was sentenced to eight years without the possibility of parole. [Meagan Flynn / Washington Post]

Thanks for reading. We’ll see you on Wednesday.

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