November 27, 2014

Legal Aid's New NYPD Misconduct Database

New York City's Legal Aid Society has a new data collection program called Cop Accountability Program, or CAP, which will gather a myriad of information about cops behaving badly. (Here). CAP is the result of hard work and creative thinking by Cynthia Conti-Cook, an excellent attorney with the sort of boundless energy and enthusiasm necessary to make this program possible. (Disclosure: I know and like Cynthia, if that wasn't clear.) It's great news for both criminal defense and civil rights practitioners, who rely on this sort of information to overcome built-in bias and help persuade jurors, judges, and adversaries that police conduct has indeed occurred.

As the GJ's vote in Ferguson highlighted earlier this week, it remains extremely difficult to convict police officers. In the case of Darren Wilson, the GJ responded negatively when asked merely whether there was enough evidence to proceed with charges. Judges routinely instruct juries that the fact that a witness is an officer does not make his or her testimony more or less credible, but that instruction is virtually meaningless; jurors, like everyone else, perceive the evidence before them through a prism embedded far too deeply to be ignored on command.

When Rodney King was brutally beaten and stomped in Los Angeles 23 years ago, much of the country was shocked. The video was, for all but a handful of jurors in Simi Valley, stark evidence of an unjustifiable beat down. What was also clear was that had there been no video, there would have been no story, no evidence to support the idea that the LAPD would mercilessly strike a downed man repeatedly with batons, fists, and feet. But there was video, and it was damning.

The officers were ultimately convicted on federal civil rights charges, something that never would have happened without the video, but not before being acquitted by a jury from nearby Ventura County. The point being that, even with compelling independent video evidence, it was extremely difficult to convict cops. Much of the public wants, and needs, to believe police officers when they testify, and they will stubbornly resist most evidence and reason to justify bad acts and misconduct.

This manifests itself in all sorts of ways, ranging from whether prosecutors will even consider charges, to how judges and juries treat the evidence and the proceedings. Some of the bias is deliberate, oftentimes it is subtle and unintended, albeit real and damaging. Except when there is evidence that the officers in question are bad cops or exceptions to the rule. This dynamic allows the players to acknowledge the strength of the evidence without disturbing their core beliefs.

For instance, NYPD officers David Afanador and Tyrane Isaac were indicted this month for assaulting and battering a teenage boy in Brooklyn, New York. There is little doubt that the victim's story would have been ignored by prosecutors were it not for video of the incident that shows Isaac winging a punch at the teenager's head and Afanador then smashing the boy in the face with his pistol. Their arrest and prosecution allows City officials and police supporters to show that the system works, that these bad guys are separated from the good guys on the force, and are being held accountable.

Video and other evidence of police misconduct is critical to the process of confirming the reality of police misconduct. It is also important in terms of weeding out those who shouldn't be officers, and this is done by publicly naming them, by creating public pressure that forces affirmative reactions from local government.

The scene is the same in civil rights litigation. In typical cases, the plaintiffs are individuals claiming that they were arrested without probable cause, wrongly prosecuted, or victims of excessive force or some similar misconduct. The thrust of the allegations is that police officers are deliberately engaging in conduct they have to know violates the constitution. When there is evidence that the officers in question are bad apples, it makes selling the client's story so much easier, particularly if the plaintiff has a record and thus was already damaged goods.

Meaning: plaintiffs in civil rights cases should not expect to overcome institutionalized bias favoring law enforcement officers absent compelling independent evidence. Video is often the most effective, as are truckloads of neutral eyewitnesses, or medical records that put the lie to the officers' statements.

Another is historical evidence of a particular officer's misconduct. Much like a plaintiff's criminal history, it proves nothing about the event itself. It is what the law calls "propensity evidence," which is ordinarily impermissible. It suggests that the fact that somebody did something before makes it more likely that they did it here. Sometimes the assumption is fair, sometimes not, but it is highly prejudicial because it can be given far too much weight relative to the other evidence.

But it can also be powerful and persuasive for non-jurors. Lawyers on my side of the fence look to historical records of civilian complaints, internal investigations and disciplinary actions, lawsuits, and the like for evidence that the particular officer is a bad guy, and thus capable of deliberate misconduct. This sort of backdrop makes the case that the officers are not good cops, or will not be given the same latitude shown clean officers, and can generally make defense lawyers skittish about their trial chances. With respect to judges, it can influence how they see the case and the parties, and assist in formal settlements discussions.

Civil rights lawyers have been talking for a long time about the need for a database like CAP. Private lawyers were never going to do it because none of us have the time, money, or inclination to dedicate resources to such an altruistic exercise. Thankfully, Cynthia, who worked for years with good lawyers I know at a civil rights and criminal defense firm in Brooklyn, understood the value of such a database and has the will to make it happen.


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