Gotham Gazette

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Criminal Justice

Criminal Justice

Civilian Complaint Review Boards


THE LOWDOWN:

It has been a winter of reckoning for the NYPD. Last December, Justin Volpe pleaded guilty to sodomizing Abner Louima. A second trial in the Louima case is drawing to a close in Brooklyn, while in Albany a jury debates the sentence for the officers charged with the murder of Amadou Diallo.

Whatever the fates of these individual officers may be, the larger question remains: How do you police the police? For decades, the NYPD relied on an internal review process run by police officials and investigators. Responding to public pressure, the City Council in 1993 established the Civilian Complaint Review Board (CCRB), the first police oversight agency in NYC to be independent of the NYPD.

In addition to reviewing police policies, the CCRB's main task is to respond to complaints. More than 100 investigators interview complainants, witnesses, and police officers; subpoena evidence from the police department; and submit reports to a thirteen-member board. These members (all appointed by the Mayor) are empowered to recommend punishment to the Commissioner, who makes final decisions in each case. The board itself cannot mete out any punishment.

You'd be hard pressed to find a more beleaguered city agency than the CCRB, or one with a more difficult mission. In its first five years, the review board received more than 25,000 complaints of police misconduct. To investigate these charges, CCRB staff must contend not only with the infamous "blue wall of silence," but also with opposition from the Commissioner's Office and City Hall.

Since the Diallo and Louima incidents, the Mayor and Commissioner Safir have publicly softened their stance, and an increased budget ($7.4 million in 1999, up more than $2 million from 1998) has allowed the CCRB to bolster its staff. But recent reports from the NYCLU highlight the agency's shortcomings: since 1996, only about 1 in 4 cases of misconduct substantiated by the CCRB resulted in punishment, and no record exists for exactly what punishment was handed down.

Across the country, civilian review boards have struggled to establish a strong watchdog presence. In New York's current political climate, that may simply be too much to ask.

BEHIND THE SCENES:

Gotham Gazette reporter Jerome Chou on the inner workings of the CCRB, and why as an oversight mechanism, it's doomed to mediocrity.

Is there police brutality in your neighborhood?

White

Black

Latino

Other

Total

Yes

23.7%

44.6%

35.6%

32.7%

28.2%

No

66.2%

47.6%

57.0%

56.4%

62.1%

Don't Know

10.2%

7.8%

7.4%

10.9%

9.6%

Total Respondents

1662

231

149

101

1643

(From data collected in NYC during the 1997 mayoral elections period by Columbia University's School of International and Public Affairs. See their report "Racial and Ethnic and Urban/Suburban Differences in Public Opinion and Policy Priorities: Crime, Drugs, and Justice"
http://sipa.columbia.edu/CURP/resources/reports/racialdiff/tables.html

THE BOARD:

CCRB homepage - Contains bare bones information about the agency and instructions on filing a complaint form (including an online version), though little else. More useful are the extremely informative semiannual reports (since 1998) and transcripts from monthly board meetings.

COMPLAINANTS:

Mayor Giuliani - At this September 1997 press conference, even as he announced additional funding and personnel for CCRB, the Mayor reiterated his support for internal review only.

"Five Years of Civilian Review: A Mandate Unfulfilled," New York Civil Liberties Union - Tracking the CCRB's performance from 1993-1998, this report calls for a CCRB legal unit to prosecute police officers and for the Police Commissioner to disclose exactly what punishment officers receive for misconduct.

"Shielded from Justice: Police Brutality and Accountability in the United States of America," Human Rights Watch - Their 1998 report includes profiles on police oversight in NYC and around the country. Their findings? The grass isn't greener anywhere else.

41 Shots - This anti-police brutality advocacy site offers a helpful explanation of the CCRB, with a healthy dose of editorializing.

 

Old Issues Are New Again: Parole, Central Park Jogger Case, Rape


The first criminal justice issue of the New York gubernatorial campaign came up in the final few weeks -- parole of violent felons. But this isn't the usual substantive discussion of parole, a topic Governor George Pataki mastered long ago. On the contrary, this is about high-level corruption and bribes. Building on analyses by Wayne Barrett and Jesse Goldstein in the Village Voice, Tom Golisano, the Independence candidate for governor, began broadcasting a 30-second advertisement statewide charging the Pataki administration with selling paroles to an armed robber and a major drug kingpin in exchange for campaign contributions. Pataki parole board chairman Brian Travis, who is still on the job, was named as an unindicted co-conspirator by a federal prosecutor.

Selling Paroles?

According to Barrett and Goldstein, Pataki fundraiser and Korean community leader Yung Soo Yoo had approached three families before the 1994 election, saying he could help get their sons, all convicted violent felons, out of prison if they contributed to the Pataki campaign. One man was indeed released on parole two years after his family donated.

Nonetheless, the New York Times concluded that saying Pataki's administration "got caught selling paroles" stretched the truth.

No one was convicted of selling paroles, says the Times, although three State Parole Board officials were convicted of lying to federal investigators and Pataki fund-raiser Yoo was convicted of obstruction of justice. A jury deadlocked on whether he had promised paroles for contributions.

Meanwhile, Patrick Donahue, the finance director of Friends of Pataki, was also named an unindicted co-conspirator for helping bring Yoo into the campaign, collecting contributions from him, and meeting with the families who had been promised early release.

All very distressing stuff, particularly given Pataki's aggressive substantive record on parole. Pataki had pushed a sentencing reform act through the legislature in 1995, eliminating the parole board hearing for repeat violent felons. (Inmates can still apply for a 15 percent reduction in sentence for good behavior.) After a bitter fight with Assembly Democrats, he got the ban on parole extended to first-time violent felons, under what's called Jenna's Law, in August 1998. He has been arguing ever since to abolish parole for all felons, and to implement "truth-in-sentencing," by which a judge would mandate a specific number of years to be served rather than a potential range. Truth-in-sentencing would retain minimum sentences while eliminating the false maximum sentences that had once lulled victims into thinking their assailants would be away for a long time.

The old system of indeterminate sentences didn't really have a maximum term, though one was pronounced by the judge. Someone sentenced to, say, 15-25 years, seldom actually served 25 years. Instead, after serving two-thirds of the so-called maximum sentence the prisoner became automatically entitled to parole. This entitlement applied to everyone, including violent felons who had committed terrible crimes. The only exception was for those who behaved very badly in prison, which some of the more vicious inmates did indeed do, thereby imprisoning themselves further. Robert Chambers, for example, who killed Jennifer Levin in Central Park in August 1986, was recently denied parole, as he has been before, because of his drug abuse and violence in prison. He will finish his 5-15-year manslaughter sentence this winter and be released free of any parole supervision -- yet another problem of the old system. Chambers and a few others aside, most prisoners have been released early, well before reaching their maximum terms.

Seeking More Time

The Central Park jogger case is both 13 years old and brand new, summarized the Times, noting that prosecutors had been granted six more weeks to conclude their investigations of what happened the night of April 19, 1989.

Given the confession (and DNA corroboration) of serial rapist Matias Reyes, attorneys representing the Harlem teenagers who had been convicted of the Central Park jogger assault argued before State Supreme Court Justice Charles Tejada that the convictions should be vacated immediately. Manhattan Assistant District Attorney Peter Casolaro, however, asked for more time to review 15,000 pages of court transcripts, interview people, and follow up leads and information given by Reyes. Judge Tejada set December 5 as the new deadline for the prosecutor's report.

While no one knows for sure what will be in the prosecutor's report, the Times, again displaying its amazing access to the D.A.'s office, says that investigators have so far come up "with almost nothing to back the original findings of guilt and with quite a bit that undermines them." Manhattan D.A. Robert Morgenthau has arranged for additional DNA tests that may yet corroborate the original confessions, but he calls the tests a "long shot."

Declaring Another Rape

Adding yet another horrible detail to the case, Matias Reyes told investigators that he had committed a similar rape in Central Park two days earlier, and that he assaulted both women by himself. The earlier rape had never been discussed publicly by either the police department and prosecutors, nor had it been divulged to defense lawyers. After being hospitalized for two days, the victim immediately left New York. No one was ever prosecuted for the rape, and the police department seems to have pretty much shelved any investigation. According to the Times, even the homicide detectives handling the Central Park jogger case did not know about the earlier rape, which had been handled by the Sex Crimes Unit. When Reyes went on to rape and murder a pregnant woman three months later, he carried out the prediction of one defense lawyer during trial that the real attacker was still unknown and would be out committing more rapes and possibly even murder.

The crucial question now is whether Reyes's contention that he acted alone should be believed? Michael Daly of the Daily News dug out a 1991 report on Reyes by psychologist Dr. N.G. Berrill, who concluded that Reyes engaged in "grandiose fantasies." Reyes "indicated that while he does not believe he possesses magic powers he would like to become a 'superhero one day like Ice Man,'" wrote Berrill, who went on to describe Reyes as an "infantile, impulsive individual ... prone to viewing the world in a peculiar fashion ... marked by 'monsters, blood, dead animals.'" He is "demanding, particularly with his need for respect and attention."

Concluded Daly: "Reyes would later say that he finally revealed his secret because he had found God, but the report shows he had been talking about finding God for at least 11 years. More likely, the 31-year-old Reyes realized that even after all this time, his secret accorded him power to match his fantasies."

A New Report From Jogger's Medical Team

Members of the medical team that first treated the jogger told the Daily News that her injuries were not consistent with Reyes's account that he acted alone and beat her with a tree limb and a rock. "The wounds that caused the blood loss, the ones that almost killed her, were administered by some sharp-edged weapon of some kind. Not by a blunt object," said one doctor. "A sharp-edged object will not produce the same abraded edges." A second doctor agreed, adding that more than one person was involved: "She had extensive injuries all over her body. There was not a part of her body that wasn't traumatized."

Increasing Numbers Of Rapes

Rape is the only violent crime in New York that has been on the rise this year, according to NYPD statistics. It is now up a little more than six percent over last year, with 1,570 rapes reported through October 6, 2002, compared with 1,478 rapes in the same period last year.

This year began with an increase in rape; 261 first-degree rapes were reported from January 1 to March 11, up from 238 in the same period last year. In March the NYPD attributed the increase to a rise in acquaintance rape, which jumped 18 percent. Stranger rape fell eight percent. (Nationally, acquaintance rape tends to be as much as 80 percent of all rapes.) While not yet providing the acquaintance/stranger breakdown for the year-to-date data, the NYPD nonetheless argues that the numbers reflected increased reporting rather than an increase in actual rapes.

They may be right, but some of the hardest-hit precincts are also ones with a history of antagonism with the NYPD. The 43, for example, where Amadou Diallo was killed, had 46 rapes up to October of last year and 58 rapes this year to date. The neighboring 44 had 41 last year and 67 this year. Perhaps more women are reporting rape, but perhaps something else is going on.

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.

Two Heinous Crimes Unresolved


As former police officer Charles Schwarz heads back to prison to start his five-year sentence for perjury, New Yorkers have come to realize they may never know who besides imprisoned former cop Justin Volpe participated in the vicious August 1997 torture and sodomy of Abner Louima. And even as Schwarz and his lawyers were working out a plea arrangement in federal court that permitted him to avoid admitting guilt in the Louima assault, New Yorkers were learning that yet another heinous crime--the 1989 rape of a jogger in Central Park--had been committed by a man who had gone untried and unpunished.

Thus two of the most publicized violent crimes in recent New York City history are joined in parallel scenarios that may never be fully understood or satisfactorily resolved. In both cases the savagery of the assault left the victim unable to provide key information--even as both cases refocused the definition of brutality to some previously incomprehensible level.

SCHWARZ CAN NO LONGER PROCLAIM HIS INNOCENCE

The saga of Charles Schwarz's drive to be found innocent in court ended when he signed a sentencing agreement a few minutes after 8:00 p.m. on Saturday, Sept. 21 -- less than two days before his fourth trial was scheduled to begin in Federal District Court in Brooklyn. A jury had been chosen the previous day, and the stage was fully set for the next trial to be played out in the same courtroom where a previous jury had found him guilty in July of one count of perjury. When that jury deadlocked on another perjury charge and on two civil rights charges the interim U.S. Attorney, Alan Vinegrad, immediately announced that he would retry Schwarz.

That was clearly going to be a difficult undertaking. The July jury's partial verdict signaled that they thought he was guilty of something, but couldn't agree on what. The jury foreman later said that 11 jurors had voted to convict on all charges, but that one hold-out "irrational" juror had forced them to convict on the perjury charge only. And as defense counsel Ronald Fischetti noted during September's plea negotiations, all he needed to do in the next trial was convince one juror to doubt Schwarz's guilt -- something he had just succeeded in doing.

Vinegrad had little reason to believe he would be able to come up with better evidence or more convincing witnesses for the new jury, made up of 9 whites, 3 blacks, and 1 Hispanic. His threat of a fourth trial was meant to coerce Schwarz into an acceptable plea bargain. Did he succeed? Had Schwarz been convicted on all charges, he could have received a sentence of up to 15 years. But that almost surely wasn't going to happen, even with a couple of judicial rulings that went against the defense. (The judge ruled, for example, that were Schwarz to testify he could be questioned on the perjury conviction.)

What the sentencing agreement did for the prosecution was eliminate a trial -- and its potential loss -- while securing Schwarz's agreement to the highest possible sentence (5 years imprisonment plus 3 years supervision) for the one perjury conviction. Did Vinegrad go this route because he feared that Judge Reena Raggi, who sternly presided over the third trial, would not impose the highest sentence? No one is saying.

What Vinegrad did get in the plea bargain was a most unusual agreement from Schwarz that he would not continue to proclaim his innocence publicly. Much of the case had been played out in the press, with Fischetti regularly outflanking Vinegrad. Schwarz repeatedly announced his innocence, even dismissing his July perjury conviction as a "small, technical charge." (For this he earned a harsh reprimand from Judge Raggi.)

Schwarz, his wife, and his lawyers are now forbidden under the sentencing agreement from making any statements "relating in any way to the sexual or other assaults of Abner Louima." If they abide by this prosecutors will recommend to prison authorities that Schwarz get a 13-month reduction in his sentence--cutting his sentence to just under 4 years. On the other hand, the prosecutors are also bound not to discuss Schwarz's guilt, making the agreement less of a victory for Vinegrad, who seems to believe in Schwarz's guilt to the core of his being.

Plus there's an obvious problem of enforceability, as Robert Levy, a criminal defense attorney, points out--particularly over the long term. "Usually you condition a plea on something like staying away from a neighbor or not returning to a specific place," says Levy. The Free Charles Schwarz web site has been dismantled and de-listed by the Patrolmen's Benevolent Association, but what happens if some time in the future a Schwarz lawyer goes on a talk show and says Schwarz is innocent? Or, for that matter, a prosecutor goes on a talk show and says he's guilty?

The truth is that Vinegrad never got what he really wanted from Schwarz: an admission of guilt. No remorse from Schwarz, no apology, no public acceptance of his crimes, and no implication of anyone else. Had Schwarz pled guilty, he would have set in motion a whole series of criminal procedures against anyone, mostly his fellow cops, who would thereby be shown to have lied. As it is, the guilt or innocence of Schwarz and his fellow cops will likely never be known, and will be an "ongoing open wound," notes Levy.

IMPRISONED RAPIST-MURDERER ANNOUNCES HIS GUILT IN CENTRAL PARK RAPE

Matias Reyes, a man serving 33 years to life for raping three women and murdering a pregnant woman just two months after the April 19, 1989, Central Park jogger assault, told the Inspector General's office in January that he alone assaulted the jogger. A DNA test confirmed the rape. In February, Reyes was interviewed by the Manhattan D.A.'s office, which then began a quiet review of the case. According to a stunning piece by Jim Dwyer in the New York Times, investigators for the D.A. paid visits to two of the five young black and Hispanic men convicted of the assault in 1990. While "many officials still believe that justice was done" in the case, writes Dwyer, the results of the "visits have shaken veteran law enforcement officials' confidence in the original convictions." After all, these boys came to symbolize what political scientist John DiIulio called "superpredators," a new breed of unredeemable children, "remorseless and morally impoverished" juveniles. Was it possible that their convictions were wrong?

Lawyers for the five young men, who were then teenagers (four of the five were under 16), are asking the court to vacate the guilty verdicts or order a new trial. Reyes' testimony is compelling because the police never had any witnesses. The victim herself, a 28-year-old investment banker, had been so brutally beaten that she lost three-quarters of her blood and was in a coma for 12 days. Amnesia prevented her from identifying her attackers.

Nor did the police have any forensic evidence linking the assault to the teenagers, whose confessions were the only damning evidence. Three were convicted as juveniles of rape and assault, and sentenced to 5 to 10 years. One was convicted of attempted murder, rape and sodomy, and sentenced to 5 to 10 years. The fifth, who was 16, was convicted of assault and sexual abuse, and sentenced to 5 to 15 years.

There is no doubt that Reyes raped the jogger, but many other details are unclear or unproven -- the most important being whether he was alone. In a notarized statement given to defense lawyers on August 23, Reyes wrote, in an oddly Victorian way, "I was drawn by her appearance and I just had to have her." He had seen her from the park's entrance at 102nd Street, and had picked up a tree branch. "A short distance later, I hit her over the head with the tree branch. She fell down and I dragged her into a bushy area ... I took off her clothing ... I grabbed her again and brought her down, covered her face and continued to beat her with a rock and/or possibly other articles. I left and exited the park," he concluded, in startlingly cop-like fashion. Nearly all the details in his account were reported in previous newspaper coverage.

Reyes says he has come forward because of a religious conversion in prison. He may indeed have found God. But one of his former attorneys, Richard Siracusa, told Newsday that he is a classic psychopath who is "fully capable of doing what he's confessed to. I don't think it's made up, but you never know: Guys like that -- they can't separate fact from fancy."

Siracusa, who represented Reyes in 1989 when he was charged with three rapes as well as a rape-murder, took over for a court-appointed attorney who had been relieved, according to Newsday, after Reyes tried to attack him. Reyes then punched Siracusa in the face when he was sentenced by the court.

The police have been criticized for not connecting Reyes with the Central Park jogger at the time. But lawyer Barry Scheck, head of the Innocence Project, told Newsday that the computerized database that now automatically matches samples of DNA did not exist in 1989. Today the database could detect a match between the DNA found on the victim and her attacker--but not then.

Police and prosecutors have always known that at least one rapist had not been caught because they had unidentified DNA from semen left in the victim's sock. That DNA has now been proved to be from Reyes. But what the DNA doesn't say is whether others raped the jogger without ejaculating, not unusual for rapists, say the police. Nor does it say whether anyone else beat her or held her down.

April 19, 1989, was a terrible night in Central Park with dozens of people assaulted and robbed by roving gangs. At least some of the five convicted teenagers participated in these assaults. Whether they or anyone else also participated in the far more savage assault of the young investment banker is not known, and may never be known.

This case will provoke an intense scrutiny of criminal justice procedures, including the questioning of suspects. Would the Central Park jogger case have gone differently if New York followed London procedures of videotaping all interrogations? For that matter, would the Louima case have gone differently if the NYPD had videotaped the interrogations of the 70th precinct's police officers, each of whom was a potential suspect?

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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