The District Attorney Says The NYPD Isn’t Telling Prosecutors Which Cops Have A History Of Lying
“These limitations frustrate our ability, not only to prepare for trial, but to make early assessments of witness credibility.”
The NYPD fails to provide district attorneys with information, including police officers’ disciplinary records, that prosecutors need to decide whether to charge people with crimes, the Manhattan District Attorney’s Office said in a letter to the department exclusively obtained by BuzzFeed News.
The NYPD fiercely guards police misconduct records, citing a controversial state law to deny the public from seeing which officers have been disciplined for lying or other wrongdoing. A recent BuzzFeed News investigation found that hundreds of officers who committed the most serious offenses, from lying to grand juries to physically attacking innocent people, got to keep their jobs. The investigation was based on a cache of secret, internal records about 1,800 NYPD employees disciplined between 2011 and 2015 that are now available to the public in a searchable database.
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Those records, a small fraction of the total employees who have been disciplined, were obtained from a source who requested anonymity. Even prosecutors — who sometimes must decide whether to bring charges based on the word of a police officer — cannot get the records before a case goes to trial, according to the letter. (You can read the full letter below.)
That’s a problem because statewide, fewer than 2% of people arrested for felonies get convicted through a trial. The rest — more than 98% — plead guilty, sometimes in exchange for lesser penalties. So in the overwhelming majority of cases, prosecutors are charging people and pressing for plea deals even though they lack vital information which might have led them to toss the case.
“These limitations frustrate our ability, not only to prepare for trial, but to make early assessments of witness credibility, explore weaknesses in a potential case, and exonerate individuals who may have been mistakenly accused,” wrote Carey Dunne, the general counsel for the Manhattan District Attorney’s Office, in the May 18 letter, adding that their concerns were shared by all five of the city’s prosecutors offices.
A spokesperson for the Bronx district attorney, Darcel Clark, confirmed that she shares these frustrations. The Brooklyn, Queens, and Staten Island district attorneys' offices did not respond to requests for comment. A spokesperson for the Manhattan district attorney also declined to comment.
Whether an officer has a disciplinary record — such as lying on an official report — could lead prosecutors to drop criminal charges. Furthermore, without information about an officer’s past misconduct, prosecutors cannot fulfill their legal obligation to hand over evidence that might help exonerate a defendant.
For defendants, receiving this information early is crucial, defense attorneys say. Without a good reason to question an officer's account, some defendants would take a plea deal, thinking that a jury won’t believe someone charged with a crime over a cop. But if police misconduct were revealed to the defense, the defendant might decide to fight the charges.
The outcomes of internal NYPD disciplinary trials used to be publicly available — if someone knew where to look for them, on a clipboard on the 13th floor of police headquarters. But since 2016, the department has shielded them from the public — and apparently district attorneys. The NYPD, which initially claimed it was saving paper, now says making the disciplinary findings available to the public even to that limited degree was a violation of a 1976 state law that shields access to personnel records. The issue is subject to ongoing litigation, but to date courts have for the most part agreed with the department's arguments. There is an explicit exemption in that state law meant to ensure that prosecutors have access to disciplinary records.
Mayor Bill de Blasio and NYPD Commissioner James O’Neill have vowed to fight for changes to state law to allow for greater transparency. The mayor’s office declined to comment.
NYPD Deputy Commissioner Phil Walzak told BuzzFeed News in a statement that the letter was full of mischaracterizations that are "both blatant and disappointing." He said the department promptly responds to prosecutors' requests for information and "has never been advised by any of the City’s prosecutors — including the Manhattan DA — that a prosecutor was unable to effectively try a case, or failed to fulfill a disclosure obligation, due to an inability to obtain relevant information from the NYPD." (You can read the full statement here.)
In its letter to the NYPD, the Manhattan district attorney asked the department to immediately provide it with a direct computer feed to the outcomes of disciplinary officers’ internal trials, preliminary investigation reports, and access to all NYPD’s surveillance feeds.
Should the NYPD not provide the information requested, the district attorney says it is willing to seek resolution “through other legal process.”
In an apparent reference to BuzzFeed News’ recent publication of the police disciplinary database, the letter notes that this information is “especially important in an age when media outlets and defense providers are creating their own databases of information about police officer discipline: data that, ironically, is often denied to our office by the NYPD itself.”
You can read the full text of the letter from Dunne to the NYPD below:
May 18, 2018
Lawrence Byrne, Esq.
Deputy Commissioner for Legal Matters
New York Police Department
1 Police Plaza, Room 1406A
New York, NY 10038
Ann Prunty, Esq
Assistant Deputy Commissioner for Legal Matters
New York Police Department
1 Police Plaza, Room 1406
New York, NY 10038
Dear Larry and Ann:
I’m writing in connection with our ongoing dialogue about how our office can get better access to information we require to properly assess, prepare and try criminal cases initiated by the NYPD. This includes, not only records of police officer discipline, but other evidence that is essential to our ability to meet our professional obligations and ensure fairness in every case. We have, of course, been discussing these topics with your office for many months. In those talks, we have made good-faith efforts to strike an appropriate balance among the legal needs of our office, NYPD resources, and the privacy interests of the police.
To date, however, little progress has been made and the focus has largely been on how we as prosecutors can make accommodations to address the NYPD's resource concerns. For example, you have asked us to delay requests for disciplinary information until a case is actually headed for hearing or trial, rather than up-front, when we are assessing the credibility of police officer and civilian witnesses and the merits of an arrest. (Of course, as only a small percentage of cases actually go to hearing or trial, this means we cannot obtain this information in the vast majority of cases.)
You have also asked that we avoid requesting such information until we have confirmed with an officer that he or she has been the subject of discipline, regardless of whether the officer can accurately recall and relay that history. You have insisted that, after such an inquiry, we make specific, narrow requests for information using a checklist through a single point of contact: a process that can take weeks or months for your office to complete. And, despite the terms of an agreement reached with our office in 2014, the NYPD has failed to provide us with access to certain reports and video surveillance feeds. These limitations frustrate our ability, not only to prepare for trial, but to make early assessments of witness credibility, explore weaknesses in a potential case, and exonerate individuals who may have been mistakenly accused. (These frustrations are shared, as you know, by the offices of the other four District Attorneys in the city and the Special Narcotics Prosecutor.)
At this point, we are not looking to debate further the efficacy of a particular checklist, or the date on which we should first be permitted to ask an officer about his or her disciplinary history. Instead, we suggest it is now time to recognize that your office and ours may have fundamentally different understandings of our obligations as prosecutors, legally, ethically and pragmatically.
To be clear, we are not seeking this information solely to address our pre-trial disclosure obligations. Instead, we need to obtain facts at an early stage that will allow us to assess the strength of our evidence and to properly prepare our witnesses. This is especially important in an age when media outlets and defense providers are creating their own databases of information about police officer discipline: data that, ironically, is often denied to our office by the NYPD itself. Recent court decisions and media reports about police misconduct also highlight our need to ensure that officers are properly vetted and that our constitutional and statutory obligations are met.
At bottom, we believe our office should be granted immediate access to three categories of data, as set forth below. We have, in each instance, made unsuccessful requests for such information before. Absent a meaningful resolution with the NYPD that provides us access to this information, we will have no choice but to seek it through other legal process:
1. Dispositions of police officer disciplinary proceedings: Information about such results was, until 2016, made publicly available, but since then has been shielded, not only from the public, but from prosecutors’ offices like ours. Our ability to obtain such information is now severely limited. A simple solution would be to allow our office to obtain access (on terms to be discussed) to the NYPD Central Personnel Index (CPI) through a computer feed that could be configured to screen out unnecessary personal information. This would allow us to answer many or all of the questions we have in specific cases, without any burden on NYPD resources.
We recognize, of course, that information about police officer discipline is subject to privacy concerns, but there should be no dispute that New York Civil Rights Law 50-a does not prevent the disclosure of such information to our office in connection with our law-enforcement obligations, and offices like ours are trusted to safeguard sensitive information in all manner of cases. It should also go without saying that information relating to prior false testimony or other categories of misconduct by officers is essential to our assessment and preparation of cases, and may, depending on the facts, be information we are required to disclose.
2. Preliminary Investigation Worksheets and online access to UF 61’s and DD5’s: again, we have had many discussions about these requests, and some of these documents were addressed in our 2014 MOU. Yet no progress has been made, even though these materials can contain information that is important to our assessment of ongoing cases, as well as information we may have to disclose under the Brady, Giglio, Geaslen or Rosario doctrines.
3. Access to all NYPD video surveillance feeds, through the NYPD DA Squad detectives, as well as a continuously updated list of surveillance cameras in Manhattan: again, this was a subject of our 2014 MOU agreement. The significance of video evidence these days cannot be overstated. As an illustration, in the past two years our Conviction Integrity Program has been reviewing cases where our office has, post-arrest and pre-conviction, agreed to drop pending charges against defendants due to a determination that the defendant did not commit the charged crime. To date, there have been 43 such ‘pre-trial exonerations,’ and many have resulted from a review of surveillance video in conjunction with other evidence obtained soon after an arrest. We need better and earlier access to surveillance video whenever it it available to the NYPD, not only to weed out such mistakes, but to better assess and corroborate evidence in all manner of serious cases.
We look forward to finally resolving these important issues; to that end we propose that we meet to discuss them in the immediate future.
Carey R. Dunne
This story has been updated to reflect that the release of police disciplinary records is the subject of ongoing litigation.