Close to 300,000 people a year go through the criminal courts in New York City. From the very first step at arraignment, prosecutors, defense attorneys and judges will pick apart the defendant's life — discussing the alleged crimes, past arrests, family ties, their jobs and living situations.
But rarely is there much discussion about the professional history of the police officer on whose word the charges are often based.
There may be no reason to doubt the testimony of most of the 35,000 officers in the NYPD, but there are some with disciplinary records or other credibility issues that call into question their truthfulness. Criminal defendants will often never learn about such histories, despite a constitutional right to information that could prove their innocence.
That’s because state law makes the disciplinary records of law enforcement officers confidential. It means defense attorneys can’t get the record directly from the police.
Prosecutors, who are supposed to reveal such information if they know about it, have access but aren’t required to use it. And if they have information, they are not required to turn it over right away.
They can wait until an officer is about to testify at a hearing or trial. And that’s too late for most defendants, who often take a plea and the promise of a shorter sentence as opposed to risking significantly more time by rolling the dice and going to trial.
This is not just a New York issue. The laws regulating access to such records undermine a defendants’ ability to get a fair trial in many states, according to research by Jonathan Abel, a former fellow at the Stanford Constitutional Law Center. He found a wide disparity in defendants’ access to records that could undermine an officer’s credibility.
“People go to jail and are sentenced to death because an officer has lied on the stand, and officers’ testimony can be very hard to push back against even when it’s false, because officers are generally respected in society,” Abel said in an interview.
“But here we have in these personnel files documented proof sometimes that officers are lying, and so this is critically important. It’s a matter of life and death for innocent people who are charged with crimes. They need to have access to this information to be able to save their lives.”
A Right to Know
Just this past February, a Manhattan judge threw out a drug conviction after prosecutors failed to disclose an officer’s history of lawsuits alleging false arrest. That’s because of a 1963 United States Supreme Court decision, Brady v. Maryland, that established a defendant’s constitutional right to information that could help prove them innocent. Subsequent cases, most notably Giglio v. United States, expanded the doctrine to include material impeaching the credibility of witnesses who testify against them. That includes police officers.
Daniel R. Alonso, the former Chief Assistant District Attorney in New York County, said prosecutors around the country are increasingly looking at these issues.
“You’re not going to necessarily be turning over every rock in the routine case. But should prosecutors be aware generally of things like adverse credibility findings, allegations of perjury, allegations of false statements? Absolutely,” Alonso said. “The responsible prosecutor’s office it seems to me would keep a running list of those things so that when their officers pop up as witnesses, they’ll know that information. And they essentially have two choices – they can call the officer (as a witness) and they have to turn the information over, or they can forego the testimony of the witness.”
Some prosecutor offices around the country keep lists of officers with possible credibility issues. Such databases are often called “Brady lists.”
“You have to disclose exculpatory evidence. There’s no gray area there,” said Jerry Cobb, spokesman for the Maricopa County Attorney’s Office in Phoenix, AZ, which keeps an officer integrity database. “I think agencies that are not taking the extra step to ensure that they are meeting that obligation are imperiling their cases by having something like that come up down the road.”
WNYC asked all five New York City District Attorney’s Offices if they keep such lists. All either said no or refused to respond.
Bennett Gershman, a law professor at Pace University, says prosecutors aren’t required to go digging for dirt on their witnesses. So the average assistant district attorney, Gershman says, acts like an ostrich.
“He’s burying his head in the sand. He’s not looking for something that might be right in front of him, might be very easy to locate,” Gershman said. “This may very well be willful blindness on the part of the prosecution because they want to be able to prosecute their cases effectively.”
A New Approach
In New York, defense attorneys can’t get disciplinary records directly from the NYPD because of a state law — Section 50-a of the Civil Rights Law — that makes police personnel records confidential.
So the city’s largest public defender organization, the Legal Aid Society, is trying a new approach. Officially they call it the Cop Accountability Project, but it’s commonly referred to as the ‘Bad Cop Database’ because it’s essentially a database of dirt on individual officers. The information is culled from lawsuits, judicial decisions, disciplinary records revealed in court proceedings and media reports. As of today, there are about 7,000 cops on the list.
Legal Aid started the project because their public defenders got tired of losing battles to get such records, and finding out the day before trial or even after a case ended that the officer involved had credibility issues, attorneys there said.
More on this investigation: The Hard Truth About Cops Who Lie • New York Leads in Shielding Police Misconduct
Legal Aid attorneys are also testing out the database in court. During an arraignment shift in June, attorney Renate Lunn went after a Brooklyn cop named David Grieco who was listed as the arresting officer in the case. He wasn’t in court, but she made sure his record was.
“That the people can ask for bail on the word of this man with a straight face is absolutely outrageous,” Lunn said, ticking off the number of lawsuits against the officer and other allegations.
Grieco didn’t respond to requests for comment. The judge still set bail in the case and Lunn was disappointed.
There are other limitations to the database. If a disciplinary record doesn’t come up in trial or during a lawsuit, Legal Aid probably still won’t know about it. Take the case of Police Officer Luis Rios. He’s a 20-year veteran who was working in the Bronx when he pleaded guilty to internal disciplinary charges in 2012. Records show he embellished details of an on-the-job injury, made false accusations against fellow officers and misled internal affairs.
But the NYPD let him stay on the streets. Legal Aid represented 48 people he arrested after that plea, and defense attorneys never knew about his record, said Tina Luongo, attorney-in-charge of Legal Aid’s criminal practice. The cases all ended with a dismissal or a plea before Rios ever had to testify.
A spokeswoman for the Bronx District Attorney said prosecutors also didn’t know about his record until it came out in a federal case in May. She said they learned about it from an article in the New York Post, and the office hasn’t used Rios as a witness in any cases since then.
Still, there’s evidence the database is having a broader impact: The NYPD is now working with the various prosecutors’ offices on its own system to track and share impeachment material on individual officers — minimizing the likelihood prosecutors will be surprised in court.
Lawrence Byrne, the NYPD’s deputy commissioner for legal matters, says the Legal Aid database is full of inaccurate and misleading information based on unfounded allegations in lawsuits.
“So basically we’re trying to do with accurate complete information what the Legal Aid society is trying to do with their misnamed, so-called ‘bad cop’ database,” Byrne said.
Alonso, the former number two in the Manhattan DA’s Office — who has prosecuted officers for perjury — said most officers are honest.
“It’s very easy to take isolated and sensationalized cases and generalize about the system – all cops lie, all cops are brutal,” he said. “The reality is that it’s very hard and complicated to be a police officer. There are a hundred thousand things you have to be thinking of on the street.
“These are important rules, for sure,” he said. “But you have to put the publicized failures in the context of a system that handles quite well many, many hundreds of thousands of cases a year in New York State and millions across the country.”
Reporting contributed by Noah Veltman.