National News

Battle Is Underway to Get Police Department to Turn Over Its Disciplinary Records

Posted July 8, 2018 7:11 p.m. EDT
Updated July 8, 2018 7:12 p.m. EDT

NEW YORK — The Manhattan District Attorney’s Office is locked in a battle with the New York Police Department over electronic access to disciplinary records of officers and investigative reports that prosecutors contend they need to catch bad arrests earlier in criminal proceedings.

The level of access to police records that prosecutors are seeking would fundamentally change the flow of information between the police and prosecutors in New York City, upending decades of practice and altering the traditional roles of each institution.

The district attorney’s push to obtain disciplinary reports for officers is the latest front in an effort to break through the wall of secrecy surrounding police discipline in New York City. Calls for those records to be made public picked up momentum after the department refused to release the misconduct records of Daniel Pantaleo, the officer who placed Eric Garner in a fatal chokehold during a July 2014 confrontation on Staten Island. (A judge later ordered a summary of the records be made public.)

This time, however, the pressure is coming not from civil libertarians filing lawsuits, or the news media writing editorials, but from Cyrus Vance Jr., the most prominent district attorney in the state.

Public defenders have long argued that the earlier prosecutors show evidence to the defense, including evidence about the credibility of police officers and witnesses, the easier it is to weed out bad cases and prevent wrongful prosecutions. Strong cases persuade defendants to plead guilty, while weak ones fall apart before the accused has spent a long time in jail, they contend.

Many reform-minded prosecutors favor turning evidence over to the defense right away, unless it endangers a witness. The district attorney’s office in the borough of Brooklyn moved to an open-file discovery system years ago. And Vance, whose Manhattan office was once notorious among defense lawyers for waiting until the last moment to disclose evidence, has begun handing it over at arraignment in nonviolent cases when there are no civilian witnesses.

Now Vance’s office is contending the same principle should extend to the flow of evidence from police to prosecutors. Not only has Vance asked the New York Police Department to give his office electronic access to officers’ disciplinary records, but he has also demanded a searchable database of investigative reports for Manhattan crimes, including detective’s memos on evidence and statements by witnesses and victims.

Those records are needed “to make early assessments of witness credibility, explore weaknesses in a potential case and exonerate individuals who may have been mistakenly accused,” Vance’s general counsel, Carey Dunne, wrote in a letter to police in May and BuzzFeed reported in June.

“We are saying to the police, ‘You have a lot of information that could bear upon the credibility of witnesses, both civilian and police, and before we take away a person’s liberty based on that information, we would like to have everything,'” Vance’s chief assistant, Karen Friedman Agnifilo, said. She said her office had uncovered at least 43 cases in Manhattan this year in which the police arrested the wrong person.

Officials in New York’s Bronx and Brooklyn district attorneys’ offices say they are on Vance’s side in the debate, but they have less leverage over the Police Department than Manhattan does. One reason the Manhattan office has clout is that four years ago the Police Department agreed to provide electronic, searchable copies of investigative reports to Vance’s office in return for $20 million to upgrade fiber-optic capacity.

So far police officials have rejected Vance’s requests.

For decades, the Police Department has turned over disciplinary records of officers only when a prosecutor asks for a background check on an officer who is going to testify at a hearing or trial, said Lawrence Byrne, the deputy police commissioner for legal affairs. The process has been streamlined in recent years, with one person designated to field requests from prosecutors and additional staff assigned to digging up the records, he said.

Still, the state’s highest court has upheld the principle that prosecutors do not need to delve into an officer’s personnel record to determine if enough evidence exists to warrant an arrest, Byrne argued. That scrutiny of an officer’s history can wait until trial, the court said.

“Whether an officer was disciplined five years ago for making a bad stop has nothing to do with whether a defendant today murdered his mother,” Byrne said. “It may bear on whether people will believe that officer at trial, but it doesn’t bear on the issue of whether the defendant murdered his mother.”

But 9 out of 10 cases never get to a hearing or trial, prosecutors note. Instead, the defendant, who is often jailed, pleads guilty to the charge before the prosecutor or the defense ever learn if the officers involved have a checkered history.

The same is true of investigative reports. Defense attorneys say their clients often make decisions on a plea with only a sketchy knowledge of the witnesses against them. The department has never given unfettered electronic access to the department’s vast trove of investigative reports to any outside law enforcement agency, Byrne said. Those records include information about unsolved cases, witnesses, confidential informants and undercover officers, he said. “We are not treating prosecutors any differently than we are treating the FBI or the state police,” Byrne said.

Instead, detectives and police officers for decades have given prosecutors investigative reports on a case-by-case basis, either just before an arrest is made or, in longer investigations, to support an application for a search warrant, subpoena or wiretap. Police hand-deliver or email copies of all the victim’s statements and detectives’ reports to prosecutors. So far they have not been placed in a searchable database, despite the 2014 agreement between the department and Vance’s office.

Friedman Agnifilo said the current system is inefficient and piecemeal, depriving prosecutors of “the full picture of crimes being committed in Manhattan” and hampering their ability to spot problems before an arrest is made. It also slows down the delivery of evidence to defense lawyers.

“We would like access to this in a way that allows us to provide information not just to us but to the defense as well,” she said. “Defense attorneys are with their clients trying to make decisions about whether or not to plead guilty.”