Gotham Gazette

The Place for New York Policy and politics

Criminal Justice

Criminal Justice

Aiming High-Tech, Ivy Recruitment


The police department has become famous worldwide for its successful, computer-driven assault on crime, but when detectives file their investigative reports, they do so in triplicate, using carbon paper. In its daily work, as Police Commissioner Ray Kelly sums it up, his department has no internal email, no computer network, no access to sophisticated outside data bases. It is like a Porsche with the engine of a Volkswagen.

The whole system is inadequate, said Kelly, speaking at a lunch sponsored by the Manhattan Institute at the Yale Club. Those triplicate files that detectives create, DD5 forms, are sent to three separate offices--precinct, command, and borough--where they are stored in standard file cabinets to be retrieved manually when needed. Kelly paused for a moment to let it sink in that the data contained in those cabinets is essentially inaccessible.

The drive of analytic policing today, particularly in combating terrorists, is to connect the dotted lines, to pick up the relationships among seemingly disparate occurrences. Terrorist cells, noted Kelly, often finance crimes through petty crime, such as breaking into cars, identity theft, burglary. Since September 11 the details of certain petty crimes have developed an importance out of all proportion to the individual crime itself.

Kelly knows what technology can do for routine productivity because he had it in his last few jobs, including as head of the U.S. Customs Service. The New York Police Department needs a computer system, he argues, that allows "all case information to be entered in one data base for cross checking." Customs uses the Treasury Department's Treasury Enforcement Communication System (TECS), which links all the Treasury enforcement bureaus with one another, including Customs, the Secret Service, and the Bureau of Alcohol, Tobacco, and Firearms. TECS may still be 1980s technology, says Kelly, but it is leagues ahead of the New York Police Department. Customs is now exploring an Internet-driven investigative database that would permit the storage of surveillance footage, wiretaps, and interviews together in a digital file.

The other half of the technology problem is, as always, personnel: "We need our senior people to have the basic tools and technologies needed to lead any organization today."

There's no easy fix for this, but one route is more sophisticated recruitment.

RECRUITING AT THE IVIES

Interest in police work is at an all-time high, and the NYPD is at the top of the food chain. Mayor Bloomberg's 2003 budget calls for a reduction of 1600 police officers, though Kelly seems to regard that as something of a phantom number. He says that 40,110 officers is the "preferred head count," and that the NYPD is now down to 38,000 through attrition. Its target is to have 39,000 officers on July 1 of this year.

The department is trying to make it easy to apply. The application form is online and it's free. Kelly thinks New York is the only major metropolitan police force in the nation to do this.

They are also sending recruiters to schools that have never seen NYPD recruiters before, such as Harvard, Yale, and Columbia. According to the New York Times, the effort was not very successful ("Police Recruiters Draw Little Interest, Good or Bad") at Columbia. Himself a graduate of the JFK School of Government at Harvard, Commissioner Kelly says the recruitment campaign is as much symbolic as substantive. Which is a judicious position to take since, as the Times points out, the NYPD's starting salary of $31,305 is less than the annual cost of attending Columbia. Rather like trying to buy a Porsche at a Volkswagen price.

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.

Cutbacks and Checkpoints


CUTBACKS

In the post-September 11 world, the New York Police Department has already lost hundreds of experienced officers to death, retirement, and private sector jobs. Now Mayor Bloomberg comes along and, facing a $4.7 billion budget gap, proposes reducing the force by 1,600 officers to save money. He intends to do this by not replacing the officers who have left the department in the last few months. There are, of course, many objections to using attrition alone to reduce a labor force, not the least of which is that attrition deprives management of discretion. As Bloomberg himself has noted repeatedly, the private sector's demand for good New York cops is likely to go up, not down. Meanwhile, the department's low starting salary of $31,305 impedes recruitment.

This would not be a bad time for Commissioner Raymond Kelly to bring back zero-based budgeting--the budgeting theory from the 1970s that urged policy makers to return to zero each year, building up their budgets and management structures completely fresh. Many expenditures should now be reconsidered. For example, how many former city officials have police protection? Former Police Commissioner Howard Safir had round-the-clock protection from two detectives until he was quietly asked to relinquish this perk by the Bloomberg administration. Who else, no longer on a government payroll, is protected? Every such expenditure should be scrutinized.

Similarly, all deployment of police officers to caretaker jobs should be examined. Should police officers patrol street fairs, for example? Parades? Community events? And if they are on duty, should they simply stand around, as was the custom under previous administrations?

Should another push toward civilianization be undertaken? Are there NYPD jobs--receptionists, clerks, phone operators--now held by police officers that would be more suitably handled by civilians?

TALE OF TWO CHECKPOINTS

Former prosecutor that he was, Mayor Rudy Giuliani regularly used the courts as a second front in his war against crime. Even when he lost, his litigiousness bought him time.

Among his most controversial tactics were his traffic checkpoints, which he used for all sorts of purposes--stopping drug traffic, checking for seat-belt use, looking for unlicensed or drunk drivers. Now a state judge has ruled that police checkpoints set up to screen traffic on high-crime blocks are unlawful because cops are subjecting citizens to illegal searches and seizures. The decision specifically declares unconstitutional the NYPD's Model Block Program, by which the police barricaded the ends of target blocks and stopped vehicles, asking to see driver's license, registration, and proof of insurance. Only drivers who lived on the block, had business there, or who were visiting family were allowed to enter.

In People v. April Pope, Acting Bronx Supreme Court Justice Robert Cohen ruled unconstitutional an NYPD stop of a vehicle at the corner of West 174th Street and Grand Avenue, where a checkpoint had been set up to counter prostitution and drug dealing. When an officer was unable to find April Pope's licence number in computer records, she admitted that the license was fake and that her license had been suspended. She was arrested.

Citing a November 2000 U.S. Supreme Court decision, Indianapolis v. Edmond, Judge Cohen said the New York program was similar to the Indianapolis checkpoint program, whose primary purpose was to find illegal narcotics. This, said the Supreme Court, was an infringement of a motorist's Fourth Amendment rights because the vehicle stops were not based on individualized suspicion of criminal activity.

Judge Cohen wrote that, "Although laudable in purpose, the checkpoint program at issue is ultimately for the purpose of crime control." Crime control did not meet the limited exceptions set forth in by the Supreme Court.

Commissioner Kelly said the NYPD was still reviewing the decision, which would not "immediately affect" the program. He added that checkpoints are nearly always set up at the request of the community.

Judge Cohen apparently thinks he's speaking for the community in his decision since he wrote that, "The impact of this program upon all citizens in this neighborhood is egregious and violates the Fourth Amendment." Who's right, Kelly or Cohen, about what the neighborhood wants?

OTHER CHECKPOINTS OKAY

In a second U.S. Supreme Court case cited by Judge Cohen, Delaware v. Prouse (1979), the court virtually invited state and local governments to introduce another kind of checkpoint--one that questions "all oncoming traffic at roadblock-type stops." This case proved useful to the Giuliani administration when model block checkpoints were criticized by some neighborhood activists in 1999 just as issues of racial profiling by police were heating up. Deflecting criticism that checkpoints were only used in minority neighborhoods, Giuliani quietly instituted a new kind of checkpoint--one that blocked, stopped, and questioned all incoming traffic in neighborhoods without high-crime rates. The East Side's Third Avenue, for example, became a frequent checkpoint in which cops said they were looking for things like seat belt violations. This in effect had been pre-approved by the Supreme Court.

Drivers caught in such checkpoints--which caused massive traffic jams and hour-long delays--were often furious by the time they reached the front of the lines and were casually waved on by the cops. Doubtless such New Yorkers would enjoy the Delaware v. Prouse dissent written by Chief Justice Rehnquist: "Because motorists, apparently like sheep, are much less likely to be 'frightened' or 'annoyed' when stopped en masse, a highway patrolman needs neither probable cause nor articulable suspicion to stop all motorists on a particular thoroughfare, but he cannot without articulable suspicion stop less than all motorists. The Court thus elevates the adage 'misery loves company' to a novel role in Fourth Amendment jurisprudence."

The New York Police Department now faces the odd situation of having had its crime-related checkpoint--the Model Block Program--declared unconstitutional, while the checkpoint concerned with trivial matters like seat belt violations is just fine with the courts.

What Kelly will do with this is anyone's guess. It was never clear that the general checkpoints, like the ones on Third Avenue, served any legitimate police purpose. Such checkpoints should be relegated to the past. The checkpoints in high-crime areas are more difficult. The city will surely appeal Judge Cohen's decision, but the question is ultimately as much a policy issue as a legal one. Were these checkpoints effective in reducing drug traffic and violent crime? Were they supported in their neighborhoods? Did residents feel their rights were infringed? Is this intense use of police personnel efficient?

Since the legal distinction drawn by the court is one of universality--you can set up a checkpoint and stop absolutely everybody constitutionally--the city can keep the Model Block Program if it chooses. It just has to make sure that absolutely everyone coming into the neighborhood is stopped--and inconvenienced.

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.

Crown Heights


When Ray Kelly was sworn in as police commissioner the first time on Nov. 10, 1992, his new job was darkened by the horror of Crown Heights. Barely two weeks before, a Brooklyn jury had handed down a verdict acquitting Lemrick Nelson, a young black man, of the murder of Yankel Rosenbaum, a young Hasidic student. The jury concluded that Nelson had been framed by a racist police force.

The terrible story still shocks. A car in an unofficial motorcade to a rabbi's gravesite ran a red light on Aug. 19, 1999, went out of control, and struck two black children, killing one and seriously injuring the other. A black mob formed and rampaged through the streets, assaulting people, burning cars, and looting stores. During the riot, a visiting Hasidic scholar, Yankel Rosenbaum, was pulled from his car, beaten, and stabbed. He identified his attacker, and died at the hospital.

Despite the victim's identification and his own confession, Lemrick Nelson was acquitted of murder by a jury of six blacks, four Latinos, and two whites in a New York State Supreme Court trial in Brooklyn. (The jury held no Jews.) Nelson's lawyer had hammered away at small discrepancies in the stories of the nine cops, eight of whom were white. He put the justice system on trial, and the jury went with his theory that a racist police force had framed the nice-looking young man. The identification was disregarded as prompted, and the confession as coerced--the defense theory.

At the urging of New York officials, including Brooklyn prosecutor Charles Hynes, the federal government brought charges of civil rights violations against Nelson and another man, Charles Price, who was accused of inciting the mob to violence. The federal trial after the state acquittal raised some hackles about double jeopardy, but was not controversial for long. Under the Reconstruction-era Civil Rights Act of 1870, the federal government can on its own try cases in which a federal interest--such as a civil rights violation--has not been vindicated in court due to a nonexistent, cursory, or bungled state prosecution.

In 1996 both Nelson and Price were convicted by a racially mixed jury in federal court of violating Rosenbaum's civil rights by singling him out for his religion.

CROWN HEIGHTS ONCE AGAIN

On Jan. 7, 2002, a week after Ray Kelly was sworn in as police commissioner a second time, the U.S. Court of Appeals (2nd Circuit) vacated the Lemrick and Price convictions. At first glance, this looks like one of those nightmare American legal situations in which a procedural error has undermined a just verdict. Two violent men, convicted of heinous crimes, may be released from prison because a judge made a mistake during trial.

Pretty much everyone seems to agree that the defendants were guilty of the crimes charged, and that the verdict was substantively correct. The Court of Appeals itself said "The evidence was sufficient" and "overwhelming" that Nelson stabbed Rosenbaum, and that Price "transformed" the mob "into an explosive mass" to hunt down Jewish victims. (Price was seen on videotape yelling, "Let's get the Jews" and "Eye for an eye. No justice, no peace.")

And everyone also agrees that a serious procedural error occurred during the trial. The error was that federal Judge David Trager "jurymandered," that is that he deliberately and systematically empanelled a jury according to his standards of the proper racial and religious composition. He was straightforward about his goals. "I have an agenda here," he said, "which I have made clear from the very beginning, to end up with a jury that represents the community [and] that will have moral validity." He went so far as to warn that if there were a hung jury, "that itself will be a statement to both sides about both what is the process and [what] the problems are with our society."

But in the words of the Court of Appeals, Judge Trager manipulated jury selection "to prevent the final jury from containing too many African Americans and too few Jews." He did this for the best of reasons--to ensure, in his words, "a moral jury that renders a verdict that has moral integrity." This high motive is consistent with the Constitution, whose framers saw the jury as both a protector of individual rights and a means of ensuring communal support for judicial procedures. The jury trial is the nation's chief means of ensuring that the morals and standards of the community will be heeded in criminal proceedings.

So Judge Trager was not wrong in seeking a moral jury that would render a moral verdict and satisfy community standards. Where he went wrong was in choosing jurors by race and religion, including a Jewish juror who warned repeatedly that he wasn't sure he could be fair. This, said the Court of Appeals, was evidence of "actual bias," that simply could not be permitted to stand.

What is to be done? Two men were convicted by a jury selected for race and religion, improper under constitutional principles. As remedy, the Court of Appeals has remanded the case to the district court for a new trial before a "properly selected, impartial jury." Lawyers for Nelson and Price are now preparing legal arguments that their clients should be released from prison while awaiting new trial.

But Justice Charles Straubb, who dissented, has a better idea: affirm the convictions both because they were correct and because the defendants and their lawyers repeatedly acquiesced in the composition of the jury, trading black jurors for Jewish jurors. "The Constitution does not require," says Justice Straubb, "that we reward defendants for constitutional violations in which they themselves participated."

He points out that the courts do not permit defendants to challenge evidence which they themselves introduced, or challenge the admissibility of hearsay statements of a non-appearing witness when the defendants themselves prevented the witness from appearing. These defendants, argues Straubb, do not deserve a second trial given their own conduct.

What will the Justice Department do? It can appeal to the U.S. Supreme Court. It can prepare for a new trial, 11 years later. The practical problems of witnesses and evidence would be enormous.

Or it can return to the Court of Appeals, asking that all 12 justices hear the case, and arguing that Justice Straubb's dissent was right. The prosecutors will be reluctant to do this because it is bound to annoy the court. Though seldom taken, this route is the right one.

Meanwhile, Commissioner Kelly faces the same problem in 2002 he faced ten years ago: building a racially and ethnically diverse police force to serve and protect his racially diverse city.

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.



Print Friendly and PDF

Editor's Choice


Gotham Gazette: New York Voters Approve $4.2 Billion Environmental Bond Act
New York Voters Approve $4.2 Billion Environmental Bond Act
Gotham Gazette: 
New York City Voters Approve Racial Justice Ballot Measures
New York City Voters Approve Racial Justice Ballot Measures
Gotham Gazette: 
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Gotham Gazette: 
City Council Examines Low Voter Turnout, Moving Local Elections to Even Years City Council Examines Low Voter Turnout, Moving Local Elections to Even Years