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Criminal Justice

The 9/11 Killer; The Public Hearings On 9/11; Moynihan On Government Secrecy


The 9/11 Killer

It was the kind of violent crime spree that many New Yorkers thought was a thing of the past: over seven weeks, in Brooklyn and Queens, four men were killed and another seriously wounded by a lone gunman. All the murdered men had been hard-working shopkeepers, holding down tough jobs on the night shift -- one at a laundry, another at a deli, two at small grocery stores. All were family men and immigrants -- from Russia, Guyana, India, and Yemen. Photos of grieving family members filled the newspapers, along with murky photos of the killer, wearing a baseball cap. The fact that the killer took little or no money simply added senselessness to the brutality of the crimes.

Now the police have a suspect, a 30-year-old Brooklyn man, Larme Price, who walked into the 77th Precinct station house in Brooklyn on a Friday night, offering to help find the killer. The following day Detective Tony Viggiani, a seasoned hostage negotiator, called him on his cell phone, asking for help. According to the New York Times, Price broke down, saying "I'm the guy you're looking for." Detective Viggiani kept talking while he and another detective jumped in a car and drove to the apartment on Eastern Parkway where Price's parents lived. Still on the phone, Price said that he had killed the four men in revenge for the World Trade Center attacks on September 11. He was looking for men of "Arabic descent." As it turns out, only one of the four was of Middle Eastern extraction.

This tragically nonsensical story seemed to deepen as his mother, Leatha Price, said her son had a history of drug abuse and mental health problems, exacerbated by September 11. The family's ongoing attempts to get him treatment were rebuffed repeatedly. On March 9, 2003, he had been seen and released by Woodhull Medical and Mental Health Center. On March 10, say police, he killed Albert Kotlyar, who had asked him to leave the Laundry King Superstore in Bedford-Stuyvesant since he was not doing any wash. Price told police he had been disrespected.

Price had eight prior arrests going back to 1989 for burglary, robbery, and assault. He has been charged with four counts of murder and two counts of attempted murder.

The Daily News pointed out that this is simply the latest in a long series of cases to raise questions about whether hospitals are properly handling dangerous, mentally ill people. Andrew Goldstein, for example, was shuffled through at least six mental health facilities before he pushed Kendra Webdale to her death in front of a subway train in 1999, the News recalled. Larry Hogue, the Wild Man of 96th Street, was finally institutionalized in 1997 after his one-man reign of terror on the Upper West Side.

When asked about Price, Roger Klingman, a spokesman for the state Office of Mental Health, said, "We are aware of the story, and we are looking into it."

HEARINGS ON TERRORISM BEGIN AT LAST

New Yorkers are finally getting their hearings. Nearly 19 months after the bombing of the World Trade Center, the National Commission on Terrorist Attacks began public hearings downtown on March 31. As the New York Times had pointed out on the first anniversary of 9/11, the government's failure to investigate was unprecedented for a disaster of this magnitude. A public inquiry into the sinking of the Titanic began the morning after the survivors arrived in New York City. "No inquiry remotely similar in scope, energy or transparency has examined the attacks of last Sept. 11," wrote the Times. "One year later, the public knows less about the circumstances of 2,801 deaths at the foot of Manhattan in broad daylight than people in 1912 knew within weeks about the Titanic, which sank in the middle of the ocean in the dead of night."

Similarly, the Warren Commission felt compelled to report its findings by the first anniversary of President Kennedy's assassination. Serious investigations were conducted into the military failure at Pearl Harbor in 1941, the explosion that destroyed the Challenger space shuttle, and airline disasters, such as the 1996 downing of the TWA Flight 800.

The Bush administration successfully blocked congressional hearings on 9/11 for six months, and repelled calls for a special commission of inquiry. While congressional hearings were eventually held behind closed doors, the promised public hearings were postponed time and again. Now they have begun at the Custom House, with public testimony that includes bitter but cogent censure of the government's ineptitude in the face of the many warnings it received that a violent attack was coming.

Mindy Kleinberg, for example, who lost her 39-year-old husband, asked, "Where was our government, its agencies, and institutions prior to and on the morning of September 11th?" She cited the cliché that intelligence agencies have to be right 100 percent of the time and the terrorists only have to get lucky once. But this is wrong on its face, she argued, because the 9/11 terrorists were not just lucky once: they were lucky over and over again. Her most startling accusation in her list of government blunders was that the Securities and Exchange Commission and American intelligence agencies failed to investigate the huge number of put options that were bought on American and United Airlines, the two airlines involved in the attacks, in the week before the attack. Speculators, who were gambling that in the short term the stock prices of both airlines would plummet, netted a profit of at least $5 million. The money remains unclaimed in the Chicago Exchange account. Why, she asks, were these aberrant trades not discovered prior to 9/11? Who placed these trades? Have they been investigated?

Mary Fetchet, another witness, lost her 24-year-old son Brad, who worked as an equity trader on the 89th floor of Tower 2. He called his father after the attack on tower one, shaken, but said that the Port Authority had told them to stay put in their office, "that the building is safe and secure." She notes that Rick Rescorla, Director of Security for Morgan Stanley told their employees to leave the building - to disregard the Port Authority's commands to evacuees to "return up to their offices." What were the failures, she asks, and who is accountable?

Brian Jenkins of the Rand Corporation argued that we have to "accept that we will live with some level of risk for years." Terrorists are planning further attacks, and the government cannot eliminate all sources of terrorist danger. But because intelligence is the first line of defense against terrorism, the New York Police Department in particular should be rebuilding its institutional intelligence capabilities. He argues that the rules put in place in the mid-1970s to correct the abuses of the 1960s impaired collection of intelligence by the early 1980s. By the 1990s, there was increased concern about terrorism, but police "collection capabilities remained low." Building more effective local intelligence-collection might be better than creating another federal entity since "local police know their territory" and local forces better reflect local populations.

Noting that New York had received only $11 million of the $556 million allocated for homeland security, Mayor Bloomberg urged that funds be distributed according to risk and threat analysis. If we distributed money for the military in the same way domestic security money has been allocated, said the mayor, "our troops in Iraq would have bows and arrows."

The commission was surprised by the low turnout of 60 or so people, which was far smaller than the 250 or more anticipated. But then the commission did not make it easy for people to come. Audience members were told to arrive at least 60 minutes before the start of the hearings, and that seating would be on a first-come, first-served basis. Members of the press, who were required to register three days in advance, were told to arrive at least 90 minutes early.

NEW YORK'S SENATOR MOYNIHAN DIES

Even as public hearings on terrorism finally began, New York's most relentless opponent of government secrecy, Daniel Patrick Moynihan, was buried in Arlington National Cemetery.

In Secrecy: The American Experience, he wrote that "government secrecy in its essence" produced its own pathology: "Departments and agencies hoard information, and the government becomes a kind of market. Secrets become organizational assets, never to be shared save in exchange for another organization's assets. Sometimes the exchange is in kind: I exchange my secret for your secret. Sometimes the exchange resembles barter: I trade my willingness to share certain secrets for your help in accomplishing my purposes. But whatever the coinage, the system costs can be enormous. In the void created by absent or withheld information, decisions are either made poorly or not made at all." This, of course, describes precisely the bureaucratic rivalries among the many agencies charged with protecting New York.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Police Misconduct Cases - Prosecuted By Civilians, But Still Judged By Police


Fifty years after its creation, the Civilian Complaint Review Board has been granted the authority to perform independent investigations and prosecutions of civilian-alleged misconduct by police officers. A state court of appeals known as the Appellate Division, First Department has held that, for the first time, civilian complaints against police officers for misconduct may now be reviewed, investigated and prosecuted by an independent board comprised of civilians outside of the police department. The court, however, also ruled that the Office of Administrative Trials and Hearings, a distinct agency separate from the police department and the city's central independent tribunal, may not serve as the impartial adjudicator of the prosecutions. Instead, adjudication of police officer misconduct must continue to reside with the police department.

FIFTY YEARS IN THE MAKING

In 1953, the Civilian Complaint Review Board was created to be a place where people could file complaints of misconduct against New York City police officers. The original board had close ties to the police department, the very agency whose employees it was to investigate. For example, the board was comprised of three police department employees, deputy police commissioners, and based its investigations on reports prepared by the police department.

The original board did not independently investigate nor prosecute complaints of misconduct and had no actual authority to discipline any officers. It was solely empowered to review the police department investigatory reports and forward its findings and recommendations to the police department, which had the sole responsibility for prosecuting, adjudicating and determining the appropriate disciplinary action.

Since the board's creation, every attempt to dislodge the police department from investigating and prosecuting police officer misconduct complaints and to create an independent review process has been met by a lawsuit filed by the various police unions.

After several unsuccessful attempts, the board took its first step towards separating complaints of police officer misconduct from the police department in 1987, when six private (non-police) individuals were added to the twelve-member board.

The union unsuccessfully sued.

Six years later, the city council amended the New York City charter to make the board the city's first independent, police oversight agency, separating it from the police department and giving it the authority to investigate. The union again unsuccessfully sued. The new board was comprised entirely of non-police civilians, operating outside the police department with the authority to receive, investigate and recommend discipline to the police commissioner on complaints of force, abuse of authority, discourtesy and offensive language. But the board members could not themselves prosecute these cases.

ATTEMPT AT INDEPENDENT PROSECUTION AND IMPARTIAL REVIEW

Following the 1993 changes, the board, after making its investigation, was required to forward to the police department's internal disciplinary system any claim of misconduct it found "substantiated" for prosecution. The police department's internal system, not the board, then determined whether and how to prosecute the claims. The claims were also heard before the police department's internal Office of the Deputy Commissioner for Trials. That office would then recommend penalties to the police commissioner. The Civilian Complaint Review Board did not participate in the review process.

In January 2001 the mayor and police commissioner made two significant attempts to further remove police officer misconduct complaints from the police department's review. First, prosecution of misconduct complaints were removed from the police department and given to the board, which was now granted the authority to not only investigate disciplinary actions against police officers, but also to prosecute "substantiated" claims. Included in this authority was the board's power to obtain police officer's employment history and to negotiate pleas with officers charged with misconduct. Under the 2001 changes the board would no longer forward "substantiated" claims to the police department for prosecution. Rather, the board would prosecute formal charges against the officers.

Second, the new rules sought to remove the hearings and review of the prosecutions from inside the police department. The new rules required the board to bring the prosecutions of police officer misconduct before an impartial administrative judge at the Office of Administrative Trials and Hearings (OATH). The OATH judges were charged with making recommendations of discipline to the police commissioner. In April 2001 the police department and the board agreed that the board would start prosecuting cases before OATH after July 25, 2001.

UNIONS SUE

Prior to July 25th, several police unions sued the mayor, police commissioner, chair and director of the board, OATH and OATH's Chief Administrative Judge. The unions challenged both the board's expanded authority to independently prosecute officer disciplinary actions and the hearing of those actions before the impartial OATH tribunal. In a decision entered on October 15, 2001 Justice Leland G. DeGrasse upheld the new rules with one exception. Justice DeGrasse ruled that the board was properly authorized to prosecute complaints of police officer misconduct. Justice DeGrasse, however, ruled that police disciplinary hearings could not be heard before an impartial OATH judge, when those hearings may result in termination. State law, Justice DeGrasse stated, specifically required that only police department employees preside over disciplinary hearings where termination is a possibility.

On appeal, the First Department affirmed Justice DeGrasse's ruling as it pertained to the board. The board, the court held, may be granted the authority to perform independent prosecution of complaints of police officer misconduct; may obtain personnel records of officers under investigation; and may pursue plea bargains with police officers under investigation.

The court, however, altered Justice DeGrasse's ruling by holding that OATH could not serve as the impartial tribunal presiding over officer disciplinary hearings. State law, the court held, completely barred OATH from presiding over any police disciplinary hearings, which must be conducted by an individual who is employed by the police department.

GREATER EFFICIENCY, TRUST UNDER CIVILIAN CONTROL

The Civilian Complaint Review Board, then, has been granted the authority to perform independent investigations and prosecutions of civilian complaints claiming police officer misconduct. Impartial hearings of those complaints, however, must wait. The board's prosecution of police officer misconduct will be performed before a police department employee, who will recommend whether or not to discipline the officer.

It is important to note that the few cases that did process through the board and OATH prior to the court's 2003 decisions were processed more efficiently than those prosecuted by the police department. They also resulted in similar disciplinary actions. For example, in 2001 the board averaged 274 days to investigate complaints, while the police department averaged 558 days to prosecute substantiated claims. Similarly, in 2002 OATH was able to make recommendations on prosecutions within 77 days, while the police department averaged over 500 days. Moreover, the police department imposed discipline against an officer in over 75 percent of the cases where the board found the complaint to be "substantiated". The police department imposed OATH's recommended disciplinary action against an officer in 78 percent of the cases in 2002 and 98 percent in 2001.

While these statistics begin to express the increase in efficiency and accuracy that would be afforded civilian complaints if separated from the police department, they do not account for the improved relationship between the public and police department that would occur upon separating investigation, prosecution and adjudication of civilian complaints against police officers from the police department. The public's perception of the police department can only be enhanced by allowing an outside independent investigation and impartial review of police misconduct complaints. There is an obvious skepticism among the public, particularly in minority communities, that the police department does not give civilian complaints proper review and is incapable of disciplining its own. As the city's brief before Justice DeGrasse stated "[s]uch public perceptions corrode the relationship between the police and the community." The unions' continued attempts to thwart the creation of an independent investigation and impartial review of complaints of police officer misconduct creates another level of mistrust between police officers and the constituents they protect and serve.

The cases are: Lynch v. Giuliani, 2003 N.Y.App.Div. LEXIS 68 (1st Dep't); Lynch v. Giuliani, Index No. 111436/01 (N.Y.Cty.Sup.Ct.) (DeGrasse, J.) (Attorneys: Michael T. Murray, Richard A. Dienst, for Lynch; Michael D. Hess, Alan G. Krams, Scott Shorr, NYC). As of this writing, the judgment had not been entered, which would give the parties thirty days to appeal to the state's highest court.

Jonathan Rosenbloom is the associate director of the Center for New York City Law at New York Law School

The Anti-War Protest And The Police


Capitol of capitalism that it is, New York will continue as a likely target of terrorism so long as it remains rich and powerful. But it is also the international center of media and communications, enterprises that depend on liberty of person and freedom of movement. It is the place to which those with a message come to get their views known and covered. Freedom is at the very core of New York and its success. Its police department historically has understood this, despite the pressures this often puts on police work.

So it may be that New York's officials were simply caught unaware in late January when an aggressive antiwar coalition (United for Peace & Justice) wanting to march up the East Side to the United Nations, asked for a permit, which the city denied. The city cited insufficient time and resources to prepare for a march that would pose "an unacceptable risk to public safety."

In early February U.S. District Court Judge Barbara Jones agreed, noting the federal government's orange (Level 2) terror alert and general post-9/11 security concerns. A protest rally would be permitted, but not a protest march.

But judicially upholding the denial of a permit for a protest march was unprecedented, according to Donna Lieberman, executive director of the New York City Civil Liberties Union. In their appeal of Judge Jones's decision before the U.S. Court of Appeals, 2nd Circuit, the New York Civil Liberties Union argued that "For decades people in New York City have paraded and marched through the public streets as a means of expressing and demonstrating their views on a wide variety of topics. Marching in the streets is a time-honored tradition in our country that lies at the core of the First Amendment."

The Court of Appeals upheld the city's denial of the permit, but sternly noted that its ruling applied to this one event only: "We do not imply that a prohibition against marching would be constitutional in circumstances other than those presented here. We caution that, while short notice, lack of detail, administrative convenience and costs are always relevant considerations, these factors are not talismanic justifications for the denial of parade permits. Likewise, simply offering an alternative of stationary demonstration may not completely serve the constitutional interest at issue."

The court is warning the city that in the future, as in the past, it will again be expected to handle demonstrations, even those that are belated, inconvenient, and costly.

A BAD TIME WAS HAD BY ALL

The demonstration was held on Saturday, February 15, and few have had anything good to say about the experience. The New York Police Department had approached the demonstration as if it were a military operation, thinking containment and control. Police first herded people towards the stage near Dag Hammarskjold Plaza at the northern part of the United Nations, then blocked them from exiting. They shut off access from the side streets, driving demonstrators north on Second and Third Avenues. Large numbers of people were forced to take streets whose exits turned out to be barricaded. The New York Times noted that part of the confusion stemmed from the NYPD moving the entrance to the rally northward as each block of First Avenue filled, progressing from 51st Street up to 74th Street. Many protestors felt hemmed in, ineffective, and scared -- some apprehensive of the surging crowds, others of the police, many unable to free themselves even to leave. The police strategy kept many protestors from protesting.

On the following Monday the protest's organizers ran a 7-minute videotape produced by the Independent Media Center showing questionable police behavior -- backing horses into demonstrators, shoving people into the metal barricades, spraying something toxic at penned-in demonstrators, using abusive language, and raising nightsticks against some who couldn't move. NYPD spokesman Michael O'Looney said the tape was "filled with special effects," and that it did not show whether cops had been provoked.

The NYPD said very few protesters were injured and few arrested -- roughly 275, which is regarded as low for an event of at least 100,000 people, and perhaps as many as 400,000, according to the organizers. The organizers also disagreed with NYPD estimates of arrests and put the number at 348.

Commentary has been almost universally negative. New York Times columnist Joyce Purnick noted, for example, that the "last time we looked, the right to assemble did not mean the right to be splintered into small clusters of people kept far from the action." Newsday's Jimmy Breslin attacked the NYPD's "disgraceful performance," of penning in "throngs of smiling people as if they were cattle. It wasn't the cops' idea to do it. All they did was carry out orders as poorly as possible."

WHAT LIES AHEAD

Do protest marches have inherent dangers to worry both marchers and officials? Absolutely yes, as anyone who has ever marched knows. Things can always go wrong in a crowd, even one made up of well-intentioned people. Something scary happens, the crowd surges, some get trapped against a barrier such as a plate glass window, people get hurt, sometimes very badly.

And a crowd isn't necessarily composed of good guys. Crowds are easily infiltrated by malevolent intruders -- whether FBI agents during the 1960s or terrorists today -- as well as by morons, such as the person who set off firecrackers on Feb. 15, alarming the police horses.

Worse, the world has changed since 9/11, and all political groups are going to have to adjust. The symbols that make for a vital protest, such as the UN or the Statute of Liberty, have been made virtually off limits by their new status as terror targets. The UN had been one of the targets in the 1993 terrorist plot to blow up five New York landmarks simultaneously. That plot was thwarted and several men convicted and imprisoned, but city officials would be irresponsible to disregard the UN's status as an international symbol.

Even such mundane matters as portable toilets can become a serious issue in these new times. Although the police refusal to permit them produced huge problems for the protest's organizers, few would deny that a Porto-San is a perfect hiding place for a bomb. Yet now the issue becomes: which of its repressive procedures will the police apply to future marches and parades?

Will the St. Patrick's parade, for example, suddenly find itself without toilets? Unlikely.

Indeed, the often-mentioned upcoming St. Patrick's Day parade has produced its humorous moments. Trying to distinguish the city's insistence that it had to deny a permit for a protest march from its insistence on issuing a permit for the St. Patrick's Day Parade, NYPD Assistant Chief Michael D. Esposito said that St. Patrick's and Puerto Rican Day marchers "step out in a timed manner and proceed at a set pace." Few New Yorkers outside the police department would cite these two parades as models of decorum.

As Donna Lieberman points out , the police department has a new policy of denying permits for political demonstrations of more than 1000 people even as it routinely permits raucous "traditional" parades. Does this make sense?

The February 15 anti-war march was a world event, held in great cities and small, but not New York. Yes, New York is New York, and therefore likely to get more aggressive protestors. And, yes, New York is a target of terrorists. But it is also an international symbol of freedom, and a city that has always triumphed over its enemies. If it forbids demonstrations and protesters as if it were just a normal city unaccustomed to dealing with world events, it will erode not only its preeminence as the world's capital city but its own sense of itself as a place that takes on all comers.

POLICE ASK FOR MORE SURVEILLANCE AUTHORITY

Meanwhile, even as the police department has been telling two federal judges that it cannot safely handle a protest march, it has been urging another federal judge, Charles S. Haight of Federal District Court in Manhattan, to expand its surveillance authority of political groups. Judge Haight agreed on Feb. 11 to modify a 1985 court order restricting surveillance, which the police department said hampered its ability to investigate terrorism. In early March, Judge Haight will announce modified rules, most likely permitting the police to operate much like the FBI. The department is asking to investigate political groups even without having evidence of criminal activity, and to share all information with other law enforcement agencies. While Judge Haight retained the three-member oversight board that investigates specific complaints of abusive police investigations, he de-fanged it.

"The Constitution's protections are unchanging," he wrote, "but the nature of public peril can change with dramatic speed, as recent events show."

POLICE AND IMMIGRATION SERVICE ACCUSE ONE ANOTHER

Yet somehow nothing is simple. It was revealed last month that of the five suspects in a brutal December 19 gang rape of a woman in Flushing Meadows-Corona Park in Queens, four were illegal aliens with criminal records. So why were they still enjoying the welcome of the U.S.? It turned out that messy relations between the New York Police Department and the federal Immigration & Naturalization Service may have been to blame.

A 1989 Koch administration order prohibited cops from informing the immigration service of an illegal alien's arrest. The rationale was that otherwise illegal aliens would not call in the police to deal in immigrant neighborhoods. But that rule was superseded by a 1996 federal law that encouraged police departments to inform the immigration agency of crimes committed by illegal aliens. Only illegal aliens convicted of felonies are to be deported -- but one of the four was indeed convicted of a felony and an police detective informed the Immigration, according to the mayor's coordinator of criminal justice. A congressional committee is holding hearings to investigate, among other matters, whether the Koch executive order that protects aliens and provides them emergency health care also inappropriately discourages the police from reporting crimes.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.



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