Policing the police: the role of the courts and the prosecution.

• Author: Zeidman, Steven
• Position: New York

The Conference on New York City's Criminal Courts asked, "Are We Achieving Justice." (1) Given that those courts contended with approximately 190,000 misdemeanor arrests in 2003, up from 130,000 in 1993, the question is increasingly relevant and important. (2)

This Essay focuses on how, and whether, the component parts of the courts--judges, court administrators, and prosecutors--promote justice by actively and critically monitoring or overseeing the police. (3) Police action triggers the courts' and institutional players' opportunities to influence justice. After an accused is deposited at the door of the court, all components of the criminal justice system must carefully and rigorously inspect the underlying police activity. It is time to ask whether anyone is carrying out this vital task.

This is an especially timely inquiry. While reported crime in New York City is at its lowest level in decades, (4) the number of misdemeanor arrests has risen dramatically. (5) As a result, criminal justice policy is increasingly revealed in the lower criminal court. (6)

Two factors are responsible for the explosion in misdemeanor arrests. First, during the term of Mayor David Dinkins, the "Safe Streets Safe City" initiative resulted in a marked expansion in the size of the New York City Police Department ("NYPD"). (7) More police officers created the potential for more arrests. (8) Second, the influence of the "Broken Windows" theory and the advent of "quality-of-life" policing under Mayor Rudolph Giuliani unleashed that massive police force in such a way that encouraged misdemeanor arrests for relatively minor misconduct. (9) Giuliani's initiative, formally titled Police Strategy No. 5: Reclaiming the Public Spaces of New York, focused the police on low-level offenses such as panhandling and public urination, and concomitantly gave the green light to precinct police officers to make arrests that were formerly the province of specialized units. (10) In short order, New York City quality-of-life policing came to be about much more than order maintenance. Then-Police Commissioner William Bratton saw additional benefits to the enormous increase in minor offense arrests--often, those arrested were carrying contraband (i.e., weapons or narcotics), had outstanding warrants, or were able to provide information about other crimes. (11) Yet another ancillary "benefit" served to solidify law enforcement's resolve to arrest more and more individuals. In 1996, John Royster was arrested for brutal attacks on four women over a period of several days. Fingerprints recovered at one of the crime scenes matched those taken from Royster when he was arrested three months earlier for jumping the turnstile. (12) The result was the complete transformation of quality-of-life, Broken Windows order maintenance policing into "zero tolerance" for any offense. (13) No longer were the police targeting low-level offenses to restore social order; instead, their modus operandi was to catch more serious criminals. (14) The motivation to arrest even more people grew accordingly. (15) As one scholar observed succinctly, "'Never before have so many been arrested for so little.'" (16) The increased interactions between police and individuals was felt most by young black and Latino men, (17) and complaints of police abuse and brutality rose by almost fifty percent. (18)

The spike in misdemeanor arrests, especially for low-level offenses, is not the only warning sign that such cases demand careful examination. The proliferation of DNA exonerations of previously convicted individuals provides incontrovertible proof that many defendants are actually innocent and/or wrongly convicted. (19) A recent study of exonerations in murder and rape cases "suggests that there are thousands of innocent people in prison today," and that "many innocent people have been convicted of less serious crimes." (20)

The disparate impact of the present policing on people of color has also been well documented. In 1999, the shooting of Amadou Diallo by four police officers focused attention on the behavior of the NYPD's Street Crimes Unit ("SCU"). (21) SCU was primarily concerned with finding illegal handguns. In 1998, the year before the Diallo shooting, SCU reported stopping and frisking 27,061 people, of whom only 4647 were arrested. Put another way, nearly 22,000 people were mistakenly or improperly searched. (22) After an exhaustive examination of the NYPD's "stop and frisk" (23) practices, the New York State Attorney General reported that blacks and Latinos disproportionately bore the brunt of this aggressive policing. (24) The New York City Civilian Complaint Review Board ("CCRB") examined NYPD "stop and frisk" activity by reviewing complaints filed by people who had been stopped on the street and frisked by a police officer. (25) The CCRB found that "African-Americans were over-represented in this sample of street-stop complaints, while whites were underrepresented." (26)

In January 2000, the NYPD implemented a narcotics enforcement initiative called "Operation Condor." (27) Two months later, Patrick Dorismond was approached by an undercover Condor officer who asked him where he could buy marijuana. (28) Somehow, after Mr. Dorismond "reacted angrily," he was shot and killed. In much the same way that the killing of Amadou Diallo prompted an inquiry into the policy and behavior of the SCU, the killing of Patrick Dorismond led to questions concerning Operation Condor. (29) It soon became apparent that "75 percent of the arrests under [Condor] have been for misdemeanors or even lesser offenses, known as violations." (30) The focus on relatively minor crimes and violations, and the concomitant disproportionate impact on people of color, in many ways characterize the NYPD's criminal justice policy of the past decade. (31) In fact, one of the architects of the "Broken Windows" theory, James Q. Wilson, observed presciently, and frighteningly, that the overwhelming desire to reduce crime might mean that "[y]oung black and Hispanic men will probably be stopped more often than older white Anglo males or women of any race." (32)

The motivations for, and consequences of, the creation and implementation of these police strategies have been the subject of much analysis and debate. Yet, what happens to those arrested pursuant to these strategies has been glaringly bereft of critical review. What happens with these cases inside the walls of the criminal courts is a question that remains unanswered.

Over twenty years ago, the Association of the Bar of the City of New York issued a report bemoaning the lack of trials in the New York City Criminal Court. (33) The report noted that only one-half of one percent of all misdemeanor cases went to trial in the preceding year. (34) By all accounts, the situation is even more dire--there are tens of thousands more misdemeanor cases, yet the trial rate is actually plummeting. (35) In addition to the dearth of jury verdicts, there are also very few determinations of the constitutionality of the police officers' probable cause to stop, search, and arrest. The court does not even appear to keep records of the number of suppression hearings held, let alone the outcomes of those hearings. (36) The result is virtually unfettered, unchecked police activity and discretion. Once an officer makes an arrest, it is for all intents and purposes insulated from any meaningful challenge or review. (37)

The free reign given to the police is even more troubling when considered in light of the well-documented history of police misconduct and corruption in New York City. In 1992, then New York City Mayor David N. Dinkins assembled the Mollen Commission in response to numerous and spreading allegations of drug dealing and corruption in several police precincts. (38) The Commission's charge was "to investigate the nature and extent of corruption in the Department; to evaluate the Department's procedures for preventing and detecting corruption; and to recommend changes and improvements in those procedures." (39) The creation of a Commission to investigate the NYPD has become something of a ritual in New York City. One of the members of the Mollen Commission wrote about the "apparent twenty-year cycles of police corruption scandals." (40) The Commission itself observed that "[f]or the past century, police corruption scandals in New York City have run in a regular twenty-year cycle of scandal, reform, backslide, and flesh scandal." (41) Indeed, the recent arrest and indictment of an NYPD detective and his retired partner has all the hallmarks of the behavior that precipitated the assembling of the Mollen Commission and other similar commissions. (42)

As one considers the myriad reasons why police misconduct so regularly reoccurs, it is necessary to consider the typical responses to it. As the story of corruption begins to unfold, the airwaves become replete with prosecutors vowing full and thorough investigations and promising to bring the full force of the law to bear. (43) In the scandal's wake comes the usual hand-wringing and calls for revamping the Police Department and creating independent police review boards. (44) Inevitably, the ensuing wrangling between those who favor and those who oppose such oversight deflects attention from the underlying issue--how best to police police corruption. Surely there are a multitude of reasons why the problem persists, but it is time to look critically at the responses of the legal system's institutional players--particularly, the courts and the prosecutors.

My focus is on a particular type of corruption--what the Mollen Commission termed "falsifications." (45) The Mollen Commission divided this type of corruption into three categories: "testimonial perjury, as when an officer testifies falsely under oath ...; documentary perjury, as when an officer swears falsely under oath in an affidavit or criminal complaint; and...