The Inevitability of Judicial Bias

In a typically interesting, introspective blog entry, United States District Judge Richard Kopf answers the question, "Why does Kopf believe cops most of the time?" In his entertaining and insightful blog, Hercules and the Umpire, the Judge (a Nebraskan Republican) delineates 9 reasons, beginning with the admission, "I am a shitty judge of credibility," mentioning that "the vast majority of defendants are guilty," and ending with "While I do not think of myself as 'pro prosecution,' I deeply fear for our society because of the many predators I see on a daily basis. I suppose that if I am going to err, I err on the side of what I see as order."

While Judge Kopf's willingness to acknowledge and probe his own bias is commendable (and far preferable to the norm of assuming a Solomonic-like capacity for objectivity), his post illustrates the hurdles civil rights plaintiffs and criminal defendants face trying to persuade judges and juries that the police can and do lie.

Brady Violations and the Bronx D.A.

The epidemic of Brady violations and associated prosecutorial misconduct continues unabated. Viewed most simply, absolute prosecutorial immunity, coupled with the inherent pressure on young prosecutors to prove themselves (or the lack of consequential pressure on senior prosecutors) inevitably results in misconduct for which the victims often have no recourse. More precisely, I am talking about the deliberate withholding of Brady material in blatant disregard for the constitution and basic principles of fairness and due process.

Prosecutors are constitutionally obligated to turn over evidence that would be helpful to a criminal defendant (Brady material) as soon as they become aware of it. Sadly, this does not always happen, and it has seemingly become routine for prosecutors to sit on evidence suggesting that the defendant is innocent -- evidence the prosecutor knows s/he is constitutionally obligated to immediately turn over. Instead, the prosecutor continues to press the case, hoping to coerce a plea deal that will secure the coveted conviction. And in those cases where the gambit fails, what are the consequences? Often none, either for the defendant, who has had to fight charges for weeks, months, or years, often from inside a jail cell, or for the prosecutor, who may, at worst be briefly scolded by a judge. When prosecutors succeed at playing hide the ball, it results in unjust convictions and imprisonment and ruined lives. It also does great damage to the integrity of our criminal justice system and undermines our faith in the outcome of the entire process. But the judicially sanctioned doctrine of absolute prosecutorial immunity protects prosecutors from any individual liability, even when they have deliberately withheld evidence, knowingly allowed their witnesses to lie, and otherwise engaged in blatantly improper conduct. The defendant who loses days, weeks, months, and years of his life has no recourse against that prosecutor.

This doctrine has long since outlived its usefulness. Basic fairness and prudence dictate that any immunity available to prosecutors ought to be qualified, at most. The continued deluge of exonerations underscores the need to hold prosecutors accountable when they choose to elevate convictions over the justice.

New York City Minutes: Bratton Disbands Muslim Spy Unit, Reins in Collars for Dollars in Internal Affairs

Two stories in the news today highlight NYPD Commissioner William Bratton's remaking of the police department. In his most recent high profile act, he has disbanded the Demographics Unit, a group formed in 2003 whose sole purpose was to infiltrate local Muslim organizations and spy throughout Muslim communities to gather intelligence. According to the New York Times today, the NYPD has acknowledged that its years of activity did not generate any leads. The unit did, however, antagonize and alienate large groups of New Yorkers, who resented being profiled and spied upon. The FBI, which is the organization primarily responsible for such national policing, had criticized the unit. In any event, the Demographics Unit is no more, and not a moment too soon.

(New York Times)

Inspector Joseph Reznick
New York Daily News

In another example of wasted NYPD resources, it appears that the Internal Affairs bureau's investigative methodology rested in no small part on making minor arrests and then trying to flip the arrestees for information on bigger fish. This approach, according to the New York Daily News, was an utter failure as a law enforcement device. It was, however, quite lucrative for the arresting officers, who often receive overtime (known colloquially as collars for dollars) for sitting around generating paperwork for these useless, minor arrests. The new NYPD Chief of Internal Affairs, Joseph Reznick, recently issued a memo that bluntly assailed the practice, acknowledging, “The reasons for enforcement were nonsense,” and, “Most arrests lacked quality and the end result was the same (no intelligence).”

Reznick also described some of the overtime as “borderline abuse” and pointed out that often IAB's own paperwork was incomplete, which is the same sort of offense for which they would write up other officers.

Such honesty is a welcome breath of fresh air in a division that seemed far more concerned with appearances than real misconduct. Now, if this renewed energy could be brought to bear on identifying and prosecuting recidivist wrongdoers, that would be real progress.

(New York Daily News)

How Not to Negotiate: the Central Park Jogger Case

You don't have to be an experienced negotiator to know that you do not tell a car salesman, "I am not leaving here until I have bought this car from you," and then expect to get the best price possible. Shortly after winning the NYC's mayoral race, Bill de Blasio announced his intention to settle the long-running Central Park Jogger civil case.

No matter your opinion of this case, or the underlying arrests that dominated city headlines and made "wilding" part of our urban lexicon, this statement was ill advised and counter-productive. De Blasio's statement was made in sharp contrast to the Law Department's deeply entrenched defense of the NYPD's conduct in a case that will cost millions to resolve, and undercut any pretense of resolve. It also aggravated the tension between the new administration and the City's legal and police departments. Not surprisingly, as was reported in the New York Times today, the case remains unsettled.

The NYPD, Shooting Victims and Open Warrants

The New York Times recently reported on the NYPD's policy of running warrant checks on shooting victims, and then investing ridiculous amounts of labor hours to safeguard them until they are healthy enough to be haled into court. (Article here). While not facially unconstitutional, the policy is absurdly wasteful and indicative of the NYPD's lack of judgment. It is also a reminder that it is not good to have open bench warrants, and if you have one, deal with it.