In a decision which clarifies the rights of the approximately 52,000 New York City tenants who receive Section 8 housing subsidies, a State Supreme Court justice has issued a declaratory judgment finding that landlords of such tenants are required to renew expiring leases for rent stabilized apartments, and to renew them with Section 8 benefits.

In Rosario v. Diagonal Realty, Manhattan Justice Joan Madden held that although federal law allows landlords to withdraw from Section 8 participation at the end of a lease, New York's Rent Stabilization Law controls and does not permit "opting out ". Local law, the judge wrote, mandates that tenants be offered renewal leases on the same terms as the existing lease. If there is a Section 8 rent subsidy, the same terms must govern the next lease. The decision, which is at variance with several Housing Court cases, does not allow owners of rent stabilized apartments who have accepted the Section 8 vouchers and the accompanying tax benefits, to refuse them when a lease expires. Prior to the commencement of the lawsuit, The New York City Housing Authority had informed the landlords in writing, that they "cannot offer the tenant a renewal term without also renewing the Section 8 subsidy."

The concept of the subsidy created by the federal department of Housing and Urban Development in 1974, and known as Section 8, is that qualified low income tenants should not have to pay more than 30 percent of their income for rent. Landlords who participate in the program receive tax incentives to provide affordable housing by contract with HUD, by way of contracts with local housing authorities such as the New York City Housing Authority.

In a group of cases consolidated for decision because they presented identical facts and issues, the judge found that tenants receiving Section 8 subsidies would be denied the benefits enjoyed by other New York City tenants living in rent stabilized apartments if their landlords refused to continue their tenancies on the same terms. To treat the subsidized tenants differently from other tenants protected by local laws, would have a discriminatory effect , Justice Madden wrote. Except for regulated rent increases, non-subsidized tenants are entitled to lease renewals under the same terms as the expiring lease. None of the seven tenants who commenced the proceedings through the Legal Aid Society and Bronx Legal Services, could afford to remain in the apartments under new conditions and at newly set rents.

The property owners had argued that despite New York law, under federal law they had the right to opt out of Section 8 participation at the end of a lease term. They maintained that they were not refusing to renew the leases, but wanted the right to renew them at market rents or on other terms and conditions, but without the subsidy. Their theory was that a 1996 amendment to federal law barred landlords from terminating tenancies "during the term of the lease." This, they reasoned, freed them from the original terms when the tenancy was at the point of expiration. The landlords also argued that discrimination would exist only if they had refused to rent to the low income tenants in the first place. However, no landlord is required to enter into an initial agreement with the Housing Authority to rent apartments to Section 8 recipients, unless that landlord is receiving public benefits in the form of tax relief. A tenant qualified for the subsidy must find her own apartment offered by a property owner who participates in the Section 8 program because that individual or corporation is also receiving a public subsidy. Justice Madden rejected the notion that the federal law prevented New York from relying on its own protective statutes governing housing.

While protection is being afforded eligible tenants, landlords enter the Section 8 program because of the advantages afforded them. New York City provides tax incentives in the form of abatements and exemptions for the improvement and rehabilitation of residential buildings and to increase the availability of affordable housing. The city Administrative Code, known as J-51, specifies that property owners participating in this tax relief must not discriminate on the basis of race, national origin, religion, gender, sexual orientation, disability, marital status or citizenship. The section also bars discrimination on the basis of eligibility or participation in a governmentally funded housing assistance program, including, but not limited to, the section 8 housing certificate program. Therefore, any property owner taking advantage of J-5l is bound by the nondiscrimination requirements. At the time of this enactment, then Mayor David Dinkins emphasized that "all housing, including private housing receiving public subsidies or tax benefits, is available to all New Yorkers, especially to those who are most in need." Justice Madden, in her opinion, expressly stated that nothing in federal law was intended to preempt "operation of State and local laws that prohibit discrimination against a Section 8 voucher holder." It is "unquestionable," she wrote, that the anti-discrimination provisions of the J-51 law are not preempted by any provision of the Section 8 law.

"...any landlord in New York City receiving a J-51 tax abatement is legally mandated under the anti-discrimination protections of the J-51 law, to accept and continue accepting a tenant's Section 8 rent subsidy." The defendant landlords who had refused to renew leases unless ordered to do so by a State Supreme Court judge, "are obligated to continue accepting their tenants' section 8 rent subsidies, and are not permitted to opt-out of Section 8 as long as the are receiving the benefits of a J-51 tax abatement."

Emily Jane Goodman is a New York State Supreme Court Justice 

In January, 1999,a once-promising young man named Andrew Goldstein pushed a woman named Kendra Webdale into the path of an oncoming subway train. The press found that Goldstein was mentally ill and had not been receiving treatments.

State officials addressed the public outcry that ensued by seizing on what they saw as a solution -- court-ordered mental health treatment.

“How many more innocent bystanders like Kendra Webdale…must die before we do something?” Attorney General Eliot Spitzer asked.

Seven months after Kendra Webdale’s death, the state passed Kendra’s Law, which allows for forced treatment for people well enough to be living outside a hospital but with a history of being hospitalized or failing to comply with treatment. Under the law, someone (usually city health authorities) can petition the court to hold a hearing for such an individual, and if a judge finds the person meets certain criteria, that individual must follow a specific care plan for at least six months under threat of rehospitalization.

With the law set to expire June 30, Governor George Pataki has publicly endorsed making the law permanent, saying that the results "are clear -- Kendra’s Law works.”

Others disagree, arguing that the law needlessly and unfairly restricts a patient’s right to choose where and how to receive treatment. They also point to the irony of the case that led to the law -- Goldstein reportedly had sought out treatment but been denied care. They also point to a studyordered by state legislators at the time that offered little evidence to indicate involuntary treatment succeeded more than voluntary care in helping patients avoid hospitalization or arrest.

Rarely, however, do objections to Kendra’s Law stem from the link between mental illness and violent crime implicit in the law.

Mental Illness and Violence

Stories like the murder of Webdale grab headlines and influence public opinion about people with mental illness, but scientific studies paint a more complex picture.

One oft-cited studysuggested that people discharged from psychiatric hospitals were not more violent than average, unless they had a problem with drugs or alcohol. This is a big if: Former patients who had problems with drugs or alcohol were found to be five times more likely to act violently than a person without mental illness or substance abuse problems. And other studies have shown that many people with mental illness do struggle with drugs and alcohol.

A 2002 studyidentified three risk factors:

• having a substance abuse problem
• living in a violent neighborhood
• having been a victim of violence during childhood

The study concluded that, if each of these three factors is present, a person with a severe mental illness has a 30 percent likelihood of acting violently within a one year period. But without these factors, the likelihood of violence dropped to two percent.

Another studypublished in 1995 found that, in New York, among those with mental illness, homeless people had a rate of violent crime 40 times higher than people with a place to live.

It’s easy for Jonathan Stanley to understand how someone with a mental illness can become violent. He remembers when he was symptomatic.

“For me and I think of a lot of people with a paranoid ideation -- when you think people are out to get you -- there’s no doubt in my mind there is a correlation,” between violence and mental illness, Stanley said.

Stanley, who has bipolar disorder, is an assistant director with the Treatment Advocacy Center, a national group which advocates for court-ordered, community-based treatment. Currently, 42 states have some form of court-ordered treatment, often called “assisted outpatient treatment.” Kendra’s Law wasn’t the first such law, but it is “a model for the nation,” Stanley said, because “what it’s got is procedures, it’s very detailed out on how to be used.”

The group argues that someone with a severe mental illness may not realize they are sick and need treatment, making a court order necessary. Another group, the state chapter of the National Alliance for the Mentally Ill, also supports the law.

Since the 1998 New York study, at least one other study has been published that found court-ordered treatment reduces violence, although the idea remains controversial among researchers.

But as far as improving the outlook of patients, a report issued by the New York State Office of Mental Healthfound Kendra’s Law to be effective, although it did not try to sort out differences between people undergoing voluntary outpatient treatment and those under a court order.

The National Alliance for the Mentally Ill has issued a report (In PDF Format) that includes interviews with family members, many of whom praised the program. At an April State Assembly hearing, while some patients argued court orders were not necessary, some family members of people with mental illness reportedlypraised the law.

“What Kendra’s Law does is it looks at a person and finds they are unable to survive safely in the community, and I always look at that to be more about their welfare than anything else,” Stanley said.

Kendra’s Law In Practice

A history of violence can be one of the criteria for applying Kendra’s Law, and, according to the state report, about 15 percent of 2,745 people ordered to receive treatment under Kendra’s Law had physically harmed someone in the 90 days prior to their court-order. After six months of the court-ordered treatment, commonly known as “assisted outpatient treatment,” only eight percent had gone on to harm others. (According to the latest figures, a total of 3,766 people have received court ordered treatment, most in New York City.)

“The reality I think is that the people who become subject to these orders don’t have a history of violence, significant violence,” said Marvin Bernstein, director of Mental Hygiene Legal Services, First Judicial Department, which oversees mental health civil cases in the Bronx and Manhattan.

The population affected by the law has mainly been living in psychiatric hospitals, at least in New York City, where most of the court orders have been issued, according to Bernstein.

“Virtually no applications are made for people living in the community,” Bernstein said, adding that most people in his district do not contest the orders, as they are eager to be released from the hospital. Cases in the Brooklyn and Queens, however, are contested more often, Bernstein said.

What Bernstein said he sees most are cases where the question is whether the person can take care of themselves, with any violent behavior “minor stuff that ordinarily wouldn’t come before a criminal court.”

“To me, the connection between the criminal justice system and people who might become involved with it except for Kendra’s Law is not very clear.”

After the initial court order, some find that they appreciate the program, Bernstein said. But others object to the intrusion of liberty, or the specifics of their treatment. After six months, another hearing takes place. Bernstein believes that “the courts tend to be fairly conservative: 'Why take a chance and change things?'” The average length of court-ordered treatment is 16 months, according to the state report.

Restricting Liberty

John Gresham, senior litigator for New York Lawyers for the Public Interest, finds many things wrong with the law, not the least of which is the intrusion on liberty.

“You are told, almost in all cases what medication to take,” Gresham said, no matter the side effects. “Your preferences be damned. “You lose confidentiality; you are in many cases told to go get therapy in a particular program, ‘Thou shalt get group therapy at xyz clinic,’ you can be told to attend a day treatment program, you can be told where to live -- in many cases assigned a roommate. So you lose a lot of significant freedom.”

Gresham describes these as results of Kendra’s Law, although the law does make some provisions that the patient should be consulted on what plan is ordered for them.

His organization has written a report outlining their objections to the law(In PDF Format) — noting that black people are five times more likely than white people to receive court-ordered treatment. Another group, the New York Association of Psychiatric Rehabilitation Services, has also opposed making the law permanent.

Gresham does not discount the role that media values and public attitudes towards the mentally ill play in getting laws like Kendra’s Law passed.

Whenever he hears about a violent crime, he says “I kind of hold my breath to see if the person was mentally ill, and invariably it gets bigger play if [the person] was.”

He says this feeds into the notion that people with mental illness are a danger to society, “even though, if most people stop and think about, the vast incidents of violence involve people nobody would characterize as mentally ill.

“One of its consequences is that people resist recognition that they have a mental illness because it's freighted with so much stigma in a way that’s different if someone is told they have kidney disease.

“It leads to policies that strip people with mental illness of really basic rights, which no one would tolerate for any other illness.”  

 Ronald York, a consultant who travels the country to help police unions with their contract negotiations, advises his clients to avoid criticizing the other side or complaining about how unfairly they are being treated. It is clear that New York's police unions are not among his clients: The Sergeants Benevolent Associationis spending two million dollars in advertising to criticize Mayor Michael Bloomberg, starting with a full-page ad in several newspapers:

"Since we understand that you are busy planning another ‘Olympics 2012’ trip to Southeast Asia, we thought we'd clue you in on what's happening here in New York City,” says an ad headlined "An Open Letter To Mayor Bloomberg” signed by union president Ed Mullins. “Crime is on the rise in our subways and in our streets...The NYPD is facing the worst attrition crisis in its history...You say that the city can’t afford to pay the police a fair wage. That’s ridiculous...There’s plenty of money to pay a fair wage to police. You simply have chosen not to. You just approved a 7% rent increase for city landlords…Do you really think that landlords in the city deserve a bigger raise than cops?...Isn’t it about time that you started to fight as hard for your own police officers as you are for the 2012 Olympics?”

A spokesman for the Bloomberg campaign labeled the ad “a campaign of lies and inaccuracies against Mayor Bloomberg," in the Staten Island Advance.

“The negotiations of the city are very rude,” consultant York observes, politely.

Right now, actually, there are no negotiations. Arbitration hearings between city officials and the largest police union, the Patrolman’s Benevolent Association, began in November. The arbitration panel has been deliberating since March. A ruling for an average case would be delivered around July, a PBA spokesman said. This is not, however, an average case.

And so the police officers of New York continue to work without a contract; the 22,000 members of the PBA have been without one since 2002.

And if they never liked former Mayor Rudy Giuliani as much as the public thought they did, they certainly do not like the current mayor, and for much the same reason. The average officer was displeased with the salary increases under Giuliani, and they see Bloomberg as going one step further, slashing the department’s budget by nearly $280 million.

Union officials say the lack of salary increases is a major reason why the city's police force has shrunk by 2,400 officers since Bloomberg took office. These officers have fled to other police departments that offer higher salaries, the union says.

"It has become tougher being a New York City police officer during the Bloomberg administration because of the dangerous downsizing of the NYPD and the failure to recognize the need to pay police a competitive salary," Patrick Lynch, president of the Patrolmen's Benevolent Association, told Newsday.

New York police officers reportedly earn a starting salary of $36,878; the PBA has said that the average salary of a New York City police officer is about 10 percent less than the average salary of officers working in other large cities.

That is why, the union says, it rejected the city’s offer of a five percent salary increase spread out over three years.

The mayor counters that the city does not have the money to pay more. City officials also have asked the union to adopt cost-saving measures before they will consider pay raises.

“If the arbitrator were to give them more than the pattern [more than the other municipal unions, in other words] and there was no change in work rules that would let us generate the money, we’d just have to do it with fewer police officers,” Bloomberg reportedly said during his radio program.

Overtime

One of the major cost-saving measures that city officials are requesting is an effort to reduce overtime. The city spent $237 million in fiscal year 2000 for police overtime, which was an extraordinary leap from the year before (46 percent higher than 1999). But five years later, Police Commissioner Raymond Kelly testified that, by the time the current fiscal year ends in June, overtime costs this year will have totaled $426 million.

PBA spokesman Al O’Leary says that it is not just city officials who have suggested changes to officers’ schedules to address the overtime issue; the union has done so as well. “Our members count and rely on overtime, because they are paid poorly. That shouldn’t be.” The City Council has proposed reducing overtime as a way of paying for 1,000 new officers.

The issue of overtime is a prickly one. Police misuse of overtime led to departmental disciplinary charges against 11 officers last month , and the independent Mayor’s Commission to Combat Police Corruption has unsuccessfully sought to study overtime practices, rebuffed by police officials who say the commission lacks the authority to review general administrative procedures.

Leaner Force

Another group critical of police overtime practices has been the Citizens Budget Commission. The group also raised the idea that a leaner police force, rather than being a threat to the welfare of the city, might actually be more efficient. In a 2002 report , the Commission noted that New York had 625 police employees for every 100,000 people, ranking number two among large cities behind only Washington, D.C.

Crime has gone down in recent years even as fewer officers have been on the street.

Eli Silverman, a professor of police studies at John Jay College of Criminal Justice, however, noted that New York may differ from other large cities in two ways: the large tourist population, and the number of officers -- about 1,000, he said -- dedicated to anti-terrorism work.

Morale

Silverman was called on by the police union as an expert witness on police moralein 2002 during the last arbitration hearings between police and the city. Morale, he testified, was “particularly low.”

Since then, Silverman said, the feelings of police have only deepened.

O’Leary said that more money “would certainly encourage officers to stay,” but it “would have to be a very big award” to compete with other departments.

“The satisfaction with the job is almost entirely a function of economics.”

When Teresa M. Medina filed an application for asylum in the United States, she supplied a sworn statement that if forced to return to her native Philippines, she would "once more be subjected to persecution by the Communist Party of the Philippine/New People's Army (CPP/NPA)." She gave details of persecution, harassment and threats for refusing to broadcast anti-government, pro-Communist propaganda in her capacity as a newscaster.

Medina's case was heard first by an "asylum officer" who found her story incredible and then by an immigration judge, who agreed. The case of Medina v. Gonzales (previously known as Medina v. Ashcroft) is her appeal to the 2nd Circuit Court of Appeals in New York. The Court, which is often described as the "court of last resort before the Supreme Court of the United States," has dismissed Medina's petition for review, thereby allowing her deportation to go forward.

In an opinion by federal Judge Robert A. Katzmann, the three-judge bench agreed with the Board of Immigration Appeals that, in addition to the affidavit, Medina gave false testimony in her immigration interview. The judges found that false oral statements made under oath are included in the Immigration and Nationality Act definition of testimony, although not expressly defined by Congress; that the testimony was false; and that Medina did not meet the test of possessing good moral character. "Any alien," the opinion said, "who makes false oral statements under oath during an asylum interview with the subjective intent of obtaining immigration benefits is per se ineligible for suspension of deportation due to want of good moral character." Remaining in the United States is an immigration benefit.

At the interview Medina repeated under oath the same story of political persecution provided in the affidavit. Her stand against terrorism and banditry, her candor, prompted even more harassment from the CPP/NPA, she said, including harassing phone calls and threatening notes, all of which led her to believe she had no choice but to flee and go into hiding. While underground, the CPP/NPA began visiting and harassing her family, even warning them that, if ever discovered, she should be shot on sight, she said, according to the opinion.. The asylum officer deemed her as "not credible in material respects," a finding which the federal appeals court later called prescient. He declined to grant Medina asylum, and her case was then referred for a hearing before an immigration judge.

It became clear at the hearing that Medina's harrowing story of political persecution was a total fabrication. Confronted with prior testimony in which she had said she had worked only at the Hyatt Hotel in the Philippines from 1985 to the time she left that country, Medina admitted that her story was "made up" But she blamed it on her lawyer, saying he told her it was the way to achieve asylum. She "just wanted to be able to work here in the United States... . I didn't mean to lie,"she told the immigration judge.

Q. Ma'am, is this application, this statement, which mostly talks about your career of broadcasting for Eagle Broadcasting Station for 1987, and the troubles that you had as a result of that job, is that a lie? Is that made up?

A. Yes, it is made up.

According to Medina, her attorney told her that this should work for a political asylum status, that the story she adopted was a creation of her counsel (who was eventually replaced for ineffective assistance).

In order to become eligible for suspension of deportation, an alien must satisfy three statutory prerequisites: (1) she must have been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of her suspension application; (2) she must prove that during this period she was - and continues to be - a person of "good moral character;" and (3) she must be a person whose deportation would in the opinion of the Attorney General, result in extreme hardship to... a citizen of the United States or an alien lawfully admitted for permanent residence.

Even if Medina met the other requirements, during the period for which good moral character is required to be established, she gave false testimony for the purpose of obtaining benefits under the Immigration and Nationality Act. Any applicant who makes such false statements with the subjective intent of obtaining benefits such as remaining the United States must be deemed ineligible for suspension of deportation on the ground that she lacks "good moral character."

Moreover, the federal judges wrote,"...even if Medina's initial counsel provided ineffective assistance, this would not excuse Medina from her obligation to testify truthfully during the asylum interview, given that she took an oath to tell the truth during that interview and there is no reason to doubt that she understood all that the oath required.

It is expected that Medina will soon be deported to the Philippines. Immigration lawyers say there is no chance that the Supreme Court of the United States will hear her case.

Emily Jane Goodman is a New York State Supreme Court Justice 

While child abandonment is a crime that carries a penalty of up to four years in jail, prosecutors recognize the grim truth that an abandoned baby is better than the alternative: At least two unwanted babies were found dead in New York City last year, and another so far this year.

In an effort to prevent such tragedies, state officials enacted the Abandoned Infant Protection Act in 2000, which allows new parents to avoid prosecution if they leave their unwanted babies someplace safe within five days after giving birth.

Lawmakers didn’t have a bus stop in mind when drafting the law. But that’s where a Bronx woman left her baby last month.

Police combed the neighborhood searching for the woman, eventually uncovering her identity. The woman, however, won’t face charges, according to Tim Jaccard. Jaccard is a police medic who helped bring the issue of abandoned babies to the attention of lawmakers. He founded a non-profit organization, the AMT Children of Hope Foundation, which runs an outreach program that includes a telephone hotline to advise panicked parents how to handle an unwanted birth.

Jaccard said he knows more details about the woman in the Bronx case, but would only say that the child was about three years old – far older than what the Abandoned Infant Protection Act had in mind. City authorities, however, have reached a consensus that, if the child is not harmed, it is better not to treat the mother as a criminal. Rather than prosecute every abandonment, officials instead try to publicize the safe haven law.

“We don’t really have a cut-off age,” said Tamiko Amaker, a Bronx assistant DA in the child abuse and sex crimes unit. In the Bronx, Amaker estimated that, on average, fewer than five babies a year are abandoned in public places. Citywide, the Administration for Child Services reported that, in the past four years, 18 abandoned babies younger than three months have entered into foster care.

Deaths appear to be rarer, although apparently no city or state agency keeps statistics. The saddest cases are not easily forgotten: A dead baby was found in a Brooklyn trash truck last July.

“It’s just a horrible situation. This act is trying to prevent that, That’s why our office chooses not to prosecute,” Amaker said, stressing the importance of the child not being harmed in deciding whether or not to file charges.

When a newborn dies of unnatural causes, however, it is often treated as a serious crime. In January a 13-year-old Bronx girl allegedly pushed her baby out of the window of her second-story apartment, minutes after giving birth alone in her room. Only a few blocks away there was a hospital, a safe haven where the girl could have legally and anonymously left the baby. Instead, she now faces second degree murder charges in New York Family Court. Although she is not being tried as an adult, she could still face up to five years of restrictive placement, which would include time in a jail-like detention center, with an option to extend punishment until she turns 21.

The details are tragic, but not shocking to those who have studied these types of deaths. “What you see is a profound denial on the part of the pregnant woman, a profound denial that she is in fact pregnant…and needs to put a plan into place,” said Michelle Oberman a law professor at Santa Clara University in California who has co-authored a book about neonaticide and written extensively on the subject.

Typically, the mother lacks “a purposefulness of action” that might differ from other murder cases, noted Oberman. (Oberman’s observation that a dead baby should not be very difficult to dispose of without getting caught might suggest an underreporting of the problem.) In reports of the cases, many of the mothers report acting in a panic. For example, the Bronx teen reportedly had kept her pregnancy hidden from her family, and she told police how she acted out of fear that her baby would cry out and wake her parents. The baby lay in an alley for 14 hours before the mother’s 15-year-old boyfriend placed the body in a bag and left it at a nearby church.

While some point to the lack of definitive statistics and wonder whether the abandoned infant law works, Jaccard and proponents say if the law saves one child, it’s worth it. All but four states have safe haven laws, Jaccard said, adding that last year nine mothers who called his group’s hotline legally relinquished their babies to safe havens.

 

Edward Conlon joined Gotham Gazette's Reading NYC Book Club in an online chat on March 24, 2005 to discuss Blue Blood, his memoir of being a New York City cop. An edited transcript is below:

WRITER AND POLICE OFFICER

Gotham Gazette: In some ways you come from a classic police background: You are a fourth generation New York law enforcement officer; your father was an FBI agent, and you also write about a great-grandfather who was a corrupt cop. At the same time, you have the prototypical writer's background: a self-described bookworm with a Harvard degree. Which did you want to be first, a cop or a writer?"
Edward Conlon:I always wanted to write, the interest in police work came much later, surprisingly so given my family. I was writing city stories, crime stories, sometimes for the New Yorker magazine, and the more I ran into cops, I saw how they loved their jobs.
Gotham Gazette: Has trying to be both ever gotten you into trouble?
Edward Conlon: The two jobs complement each other, except in demands on time.

BLUE WALL OF SILENCE

Gotham Gazette: As civilians, we hear a lot about the blue wall of silence, and as journalists, we know how difficult it can be to get the police department to be forthcoming with information. You have covered the police department as well, and mention the blue wall of silence in your book. Have you had any difficulties writing about the police department from the perspective or a member of the department?
Edward Conlon: It's exaggerated to a great degree I think, but it does exist. In the book, real names were used in cases only when there was a conviction. There are other issues of privacy. People have to be comfortable working with you. Fortunately, I was known as a cop before the writing became public, so there was trust there to begin
Gotham Gotham: So there was never any official objection to either your project overall or anything specific that you have written?
Edward Conlon: When I wrote the cop diary pieces for the New Yorker, I submitted them to the NYPD press office. But I later learned I didn't have to, though it's a smart thing to do politically. The press office was great though -- no complaints, and they sometimes fixed spelling and grammar. Under [former Mayor Rudy] Giuliani, especially, I was more concerned they might try to direct what I wrote--"The Mayor wants something on bicycle summonses"-- but it was unfounded. It turns out I have a first amendment too. Who knew?
Gotham Gazette: You say that the blue wall of silence is exaggerated. But why is it there at all?
Edward Conlon: The legal system is adversarial, the press culture more so, and the nature of much police work is conflict. Also, police culture is insular, deriving from our schedule in part.
Gotham Gazette: Because the hours are strange?
Edward Conlon: Even now, I work two nights, two days, and have two days off--who else is around except for other cops? The fraternity is a benefit, by and large, even when earlier historical circumstances were not for the best -- corruption for example.

THE PRESS AND THE POLICE

Gotham Gazette: You write about the press that "the adversarial posture became a reflex: for the Times, the word 'police' became primarily an adjective used to modify the noun 'corruption' or, later, 'brutality'; they got their story thirty years ago, and they've stuck with it ever since." Where does this antipathy come from?
Edward Conlon: I think that it's a cultural divide--upper middle class people covering working class people who are locking up poor people.
Gotham Gazette: Is the cultural divide inevitable?
Edward Conlon: I don't think so. I think it could be better. Any writing can, any understanding can. It's less the case now, with [Police Commissioner Raymond] Kelly and [Mayor Michael] Bloomberg. The press covered cops as if they were an aspect of Giuliani's personality.
Stacy Horn: The adversarial posture and the reflex action go both ways, don't you think?
Edward Conlon: Absolutely
Gotham Gazette: You've observed that the Metro section of the Times is getting thinner. Is there just less interest?
Edward Conlon: There's less crime, certainly, but the coverage seems more suburban and "thematic" rather than hard news about the city.
Gotham Gazette: And this illustrates the cultural divide?
Edward Conlon: I think so. Many of our murders aren't especially interesting--Drug dealer A kills drug dealer B. But there's a bit of a lifted pinky attitude there.

COPS VS. COMMISSIONERS AND POLITICIANS

Stacy Horn: Of all that you have written about the police department, which gave you the most trouble from within the department?
Edward Conlon: Legally, there was little problem--the libel lawyer had surprisingly few objections. I beat up a couple of bosses and he had no problem. It was fair opinion I guess
Stacy Horn: How did the bosses you beat up respond? How have your fellow cops/detectives responded?
Edward Conlon: No legal problems, and political ones have been few. Last Friday, I got yelled at by former [police commissioner] Patrick Murphy. He was Lindsay's PC, and skipped a cop's funeral for a conference. But he never liked detectives, and he insulted them in the end, so I was happy how he was treated.
Stacy Horn:What did he say? Did you yell back?
Edward Conlon: Actually, he whined more than yelled.
Stacy Horn: It was interesting for me to learn, as an outsider, how everyone was not on the same side on the inside.
dglove:I am curious what the feeling is in the ranks towards Mayor Bloomberg?
Edward Conlon: Disliked, primarily over money. Most mayors are. Koch was liked, Giuliani wasn't. Giuliani did everything for us except pay us.
Stacy Horn: Who was the most beloved police commissioner?
Edward Conlon: Hard to say--probably [William] Bratton in my career, but [Robert] McGuire by people who have longer memories. Cops aren't an especially loving bunch toward most bosses and politicians.
Gotham Gazette: On a day to day basis, is it much different being a cop under Giuliani and being a cop under Bloomberg?
Edward Conlon: No, which is why the difference in coverage is strange--we're not nicer because Kelly is nicer, or Bloomberg is, but you might think so from reading the papers.

COMMUNITY POLICING

Gotham Gazette: A term that is often associated with Ray Kelly is "community policing." The term eludes definition. As a member of the police department, what does that term mean to you?
Edward Conlon: Next to nothing. It was a Dinkins policy, and it didn't really work. At the same time, what I did early on as a beat cop was community policing, But a foot post is a very "retail" way to deal with things, very labor intensive. Kelly supported it because he worked for the mayor [Dinkins], and did what he was told. You haven't heard much about it lately. They did a study--it makes people happy but isn't really effective in reducing crime.
Gotham Gazette: It is definitely still a part of his spiel, though. He always talks about the three C's: community, crime reduction, and counterterrorism.
dglove: Do you feel that the police department is currently doing enough to make relationships with the communities they police? Your book makes one feel that there is sometimes too much pressure to make numbers and less emphasis on working with the communities.
Edward Conlon:There is definitely too much emphasis on numbers, but this police commissioner is also well respected by the community. Recall the black leaders who marched in support of him when the Patrolman's Benevolent Association called for his resignation, over the Brooklyn rooftop shooting he called unjustified. It always could be better, and community outreach isn't the same as "community policing" in the specific way that policy was devised.

RACE AND THE NYPD

Gotham Gazette:Mayoral hopeful Fernando Ferrer recently caused a furor by saying during a meeting with members of the police force that the shooting of Amadou Diallo wasn't a crime. How much does this particular case still overshadow the way you think about race when you're on the job?
Edward Conlon: I don't think it needs my two cents on how the way Ferrer ran on the case in 2001 jars with that recent quote. [Bronx District Attorney] Robert Johnson had an interesting line on it, stating in effect that Ferrer was a good friend and more or less a liar.
The horror of the Diallo case for working cops is not so much the thought of it, but the lack of thought it allowed. Four cops had seconds to react to a potentially deadly situation, and one shot, and fell, and the others thought he was hit; the chain reaction ends with an innocent man dead and the infamous forty-one shots. Four men who went to work one night looking for a serial rapist found themselves on trial for murder, with politicians of all kinds demanding their conviction. In the aftermath of Diallo, a lot of active cops did back off--this is anecdotal--and the Street Crime Unit was reduced and renamed. But cops did go back to work, the next night and the next, and crime did and has continued to drop. The NYPD is in one sense an old and tradition-bound place, but the author and one-time police press liaison Robert Daley once compared us to a football team, living only for next week's game.
Gotham Gazette: You write that you don't think people react differently to police officers based on race, and that hiring minority police officers would not improve community relations. This idea runs contrary to the conventional wisdom; why do you believe that the race of a police officer doesn't matter?
Edward Conlon: I don't know if I quite say that--but the experience of cops of all colors is generally more similar than not. And the conflicts they get into is color blind, to a degree. It's more important to have a diverse police department than a diverse fire department, I'd say, but cities that have black-majority departments - D.C., New Orleans -- aren't usually held up as models. The problems charged--brutality, corruption--have no relation to diversity. In the Kerner Commission report, black people said black cops didn't treat them better, but it was important for the job to be open to them for economic reasons.
Gotham Gazette: But do you think the increased diversity of the New York police department improved the way that it relates to the communities that it polices?
Edward Conlon: I don't think so--post 9/11, post Giuliani, it's a less divided city in general. Again, I think it is important for a diverse department--you can't have one race locking up another race, it tears the city up -- but the problems we or any department has won't be fixed by more minority hires.

COUNTERTERRORISM AND THE AVERAGE COP

Gotham Gazette:Your book ends at the beginning of this post Giuliani, post 9/11 era. Has the need to work on counterterrorism in addition to traditional police work since then changed your life as a detective?
Edward Conlon: In the ordinary course of events, I do very little in regards to terrorism. And what I've done has been nonsense. A woman claimed in family court that her husband wanted to blow up the court; we had to spend the day debriefing him, but it was garbage. There's a much larger counterterrorism division now though.
dglove: Is there much competition/desire in the ranks to get into the counter terrorism work, or is that seen as not so much why people joined up?
Edward Conlon:It varies. We do have people overseas, in major investigations, but there's also a lot of nonsense of the kind I just mentioned, people who say their landlord's in Al Quada when they're behind in the rent.

GOOD NUMBERS, BAD MORALE

Stacey Horn: Why have the results from Compstat-like initiatives in other cities been less dramatic than the results in New York?
Edward Conlon: The numbers in LA are pretty good. Maybe we had the resources--40,000 cops--to make it more effective here.
Gotham Gazette: Crime has dropped and police community relations are, by many accounts, better than they have been in some time. To an outsider, it would seem to give police officers a certain satisfaction. But you write that "if there was any constituency in New York more alienated from the [Giuliani] Administration than blacks, it was cops." The head of the police union recently said morale was at an all-time low. Why has the city been able to make its police force more effective but not happier?
Edward Conlon: Money. We're paid less than Newark, a city with far less resources. Cops leave the NYPD for just about any agency they can--in Long Island, you could double your pay for a lot less work and aggravation. We have fewer and fewer cops, and it's harder to fill the new classes, but crime is still going down, so there isn't the pressure to address it that there should be.
Gotham Gazette: Has Compstat-related pressure contributed much, or would that not be such an issue if you had a better contract?
Edward Conlon: Compstat pressure is part of the dissatisfaction, but pay is the central issue.
Stacy Horn: What's next for you? What's your next book? Would you like to write about something entirely different?"
Edward Conlon: Fiction is next, but in a contemporary police setting. I hate not having the excuse of research
Gotham Gazette:You thank God in Blue Blood that cops are not required to think about big picture policy ideas. Please excuse us then, in asking you so many big picture questions on your day off.
Edward Conlon: Thanks everybody, take care
Gotham Gazette: Our next book club will be held at the Jefferson Market Branch of the New York Public Library on the last Wednesday in April. Come back to Gotham Gazette Books for more information.

 

Ask any American about citizen participation in democracy, and you will probably hear, "the right to vote, the right to trial by jury." Yet, only about one-half of those eligible to vote in the United States appear at the polls. Since voting is purely voluntary, there are no penalties for election no-shows. And while we take "a jury of our peers" for granted, avoiding jury duty is one of the biggest games in town. But failure to fulfill this obligation can, like failure to pay taxes, carry serious consequences.

Here is what happened in a recent Manhattan case, now entitled In the Matter of Punishing James Pringle for a Criminal Contempt, Pursuant to Judiciary Law.

When Criminal Court Judge Edward J. McLaughlin, sitting in New York State Supreme Court, discovered that a potential juror for a drug case had left at the end of his third day awaiting voir dire questioning, and did not return the next day, he declared him AWOL. Finding him in contempt of court, the judge ordered any peace officer or sheriff to take James Pringle, 28, into custody. Pringle, a commodity exchange employee, and a part-time college student, was sentenced to four days in civil jail. "Citizens who purposely evade being selected for a jury represent a serious threat to the administration of justice," said the Judge.

According to Judge McLaughlin's 14 page Opinion and Order of Commitment, Pringle reported to 100 Centre Street on November 29, 2004, after three postponements of jury service. He was in a panel sent for jury selection for a trial which was expected to run five or six weeks, longer than most. Pringle had asked to be excused because of his job and his school schedules, but his request was denied by the judge since he would continue to receive his salary, and because his classes were at night.

During the time Pringle was in court, Judge McLaughlin instructed the entire jury panel about the importance of jury service, likening it to military service, emphasizing that "someone could not be excused for personal convenience." After a number of selections had been made, a group of potential jurors, including Pringle, was directed to return the next day for their turn to be questioned as to their suitability for this particular case. However, James Pringle did not answer when his name was called; he did not appear at all on the fourth day. A jury was selected, sworn and the trial began. This may have ended the matter for James Pringle, but not for the judge.

Judge McLaughlin wrote to Pringle, stating that he had been absent from court, "without permission," but that the court would give him an opportunity to explain his absence in writing by fax or by appearing personally in the courthouse. When neither an explanation nor Mr. Pringle arrived, Judge McLaughlin called his home and spoke with his mother. The next day, a faxed explanation arrived in which Pringle detailed his various appearances in Judge McLaughlin's courtroom the previous week, and said that he had left to go home to get his books, go to the library and write a paper. During a phone conversation with the court clerk, Pringle agreed to appear in court the following week.

Questioned by the Judge, Pringle admitted that he had left and not returned to the court. But he said that was due to his night school obligations, and his belief that the jury composition had been completed. "So, I told you I have classes, I have finals this coming week and next week and I had to be at the library like around 6:00, it was going on 5:00," Pringle said. He also said he hadn't heard the directive to return the next day and had assumed that he was finished because he had been there three days, and in his prior jury experience, three days was all that was expected. (Several people familiar with the jury selection process, agreed that potential jurors are told in the Central Jury Room that if they are not picked in three days, they are excused.)

The court nevertheless ordered Pringle to show cause why he should not be held in contempt. He was told to bring a lawyer. Pringle and his lawyer, Robert L. Sims, Jr., appeared and produced a recently received "Certificate of Jury Service" to prove that he had completed his jury service. "Why did I receive this if I didn't serve?" Pringle asked the judge. He did, however, write a letter of apology, stating that he was willing to serve on a jury, but the court continued with the contempt proceeding.

The court found, "beyond a reasonable doubt, that respondent's refusal to appear in Court on December 2, 2004, is criminal. It is also an insult both to those who appeared for jury service and to those who have died to assure the system of government and law that all enjoy in the United States.

"Having been found guilty of contempt, respondent faces two possible sentences: a fine of up to $1,000 or a jail sentence of up to thirty days with no time reduction for good behavior or both. According to Judge McLaughlin, "For most people who appear for jury service, but not all, such a fine poses no real penalty. Many New Yorkers gladly would pay $1,000 to avoid jury service because their incomes easily could absorb that loss."

The Judge determined that a jail sentence was a more fitting punishment than a fine, and he sentenced Pringle to four days in civil jail. According to the New York City Department of Correction, the prisoner was released on the first day with "time served."

In the Matter of Punishing James Pringle for a Criminal Contempt, does not set precedent and is not binding on any other judge or court.

Emily Jane Goodman is a New York State Supreme Court Justice 

Manhattan D.A. Robert Morgenthau (left) and Brooklyn D.A. Charles Hynes (right) superimposed in the foreground of a promotional photograph for the TV series. Gotham Gazette's Campaign 2005: Brooklyn District Attorney Manhattan District Attorney

Manhattan District Attorney Robert Morgenthau must hope that life does not imitate art. When the television series Law & Order debuted in 1990, the district attorney was Adam Schiff, a character modeled on real-life DA Morgenthau, who had already occupied the office for 15 years. Like his counterpart, Schiff, portrayed by Steven Hill, won acclaim and respect for his work. But in 2000, Schiff was replaced by a younger, female DA.

This was a departure from the real-life district attorneys of New York City, who have often been given what amounts to life-time tenure. Morgenthau, at the age of 85, is seeking his ninth term as Manhattan DA. But former State Supreme Court Judge Leslie Crocker Snyder, age 62, is mounting a credible campaign to unseat him. Perhaps she got the idea she actually has a chance from the goings-on on Law & Order; after all, she works as a consultant for the show.

In Brooklyn, Charles Hynes, the only other New York City district attorney up for re-election this year, also faces an especially tough battle, with as many as six opponents vying for his job.

The two races (the other three DAs will not face re-election until 2007) have put unusual attention on an office that lawyers -- and criminals – realize holds huge power but that most New Yorkers know largely from television series and mystery novels. Like the television DAs, the real ones must regularly deal with some of the hottest controversies of the day and cases “ripped from the headlines.” The DAs must also perform a complicated juggling act. They are supposed to be apolitical but must run for office as a party candidate. They must dispense justice fairly but know they can face harsh public criticism for failing to go after certain crimes or for failing to win convictions.

THE JOB

District attorneys serve as the top prosecutors and chief law enforcement officers in their counties, investigating and prosecuting violations of city and state law. In this capacity, the five New York City DAs –- one for each borough -– prosecuted almost 87,000 crimes in 2003, according to statistics compiled by the New York State Division of Criminal Justice Services.

New York State created the job of a county prosecutor in 1796, although back then they were appointed. The position became an elected office following a constitutional convention in 1846.

(These positions, which enforce New York State statutes and New York City ordinances, should not be confused with the Office of the United States Attorney, which prosecutes federal crimes: There are four U.S. Attorneys in New York State, for the Eastern District, based in Brooklyn; for the Southern District, based in Manhattan; for the Northern District, based in Syracuse; and for the Western District, based in Rochester.)

Even in these days of comparatively low crime rates, enforcing the criminal laws in New York City represents an enormous and expensive undertaking. The DAs' budget, part of the overall city budget, totals about $188 million. Each office, except for Staten Island, employs hundreds. The Queens DA, for example, supervises about 260 lawyers.

Running such an operation, says John Pollok, a defense attorney who heads the Criminal Courts Committee for the Association of the Bar of the City of New York, requires that a person be a good administrator and a scholar who knows what the law is. Ideally he or she (all are currently men) should be apolitical.

The people who become DAs in New York City tend to hold their offices for decades, winning one four-year term after another. Indeed, no one can recall a single case of an incumbent, elected New York City district attorney ever having been defeated for re-election. In Manhattan, there have been only three elected district attorneys – Thomas Dewey, Frank Hogan and Morgenthau – since 1937. In Hogan’s bid for a ninth term in 1973, he beat back a stiff primary challenge, only to be admitted to the hospital suffering from a stroke and lung tumor two months later. He still won the general election in November -- but died soon after.

From most senior to most junior the current DAs are:

Robert Morgenthau (Manhattan):
In 1974, Morgenthau defeated Richard Kuh, who had been appointed to replace Hogan. He has not faced a serious challenger since C. Vernon Mason in 1985 and ran unopposed in 2001, when he was already 82.

Robert Johnson (Bronx):
A former criminal court judge, Johnson won election to the post following the death of long-time Bronx DA Mario Merola in 1988 and became the first black district attorney ever in New York State.

Charles Hynes (Brooklyn):
After coming to prominence for his role as special prosecutor in the Howard Beach racial murder case of 1986, Hynes, a former city fire commissioner and prosecutor, won election in 1989 when Elizabeth Holtzman left the DA’s office to become New York City comptroller. He has since tried for other office – running unsuccessfully for governor in 1998 – but has kept his Brooklyn post.

Richard Brown (Queens):
The former appellate court judge was appointed to his post by Governor Mario Cuomo in 1991, winning his first election to the office five months later.

Dennis Donovan (Staten Island):
The first Republican DA in the borough in 50 years, Donovan was elected in 2003 after incumbent Democratic DA William Murphy decided not to run again. Donovan formerly worked as a narcotics prosecutor in the Manhattan DA’s office and served as deputy borough president.

POLITICAL ISSUES

Like judges, these DAs hold an unusual position in the political landscape. They run for office on a party line, raise money for campaigns and seek endorsements from unions and political clubs. But a code of conduct limits just how political they can be. They cannot belong to a political club, endorse candidates or speak at political functions.

Yet they must frequently make decisions on some of the leading political controversies of the day.

They must choose what types of crime to pursue. Crime may be down but there is still far too much of it in New York for DAs to go after every offence – from spitting on the sidewalk to prostitution to insurance fraud.

A lack of money and staff complicates the decisions. New York DAs saw their budgets cut by 12 percent between 2001 and 2004, according to the New York Law Journal, although no budget cuts are proposed for this year. The cuts mean fewer lawyers –- a decrease of 18 percent in Queens -- and thus fewer prosecutions as well.

A decision on whether and (and how) to prosecute a case can be extremely volatile. Over the years, critics have complained, for example, that the city prosecutes drug use in low-income minority neighborhood far more aggressively than similar drug use on Wall Street.

Police shootings pose a particular quandary for prosecutors. They work with, and rely upon, the police. But many in the city demand that the police be brought to justice, particularly in cases where race plays a role.

Choosing the charge, and therefore the possible penalty, also can be fraught with controversy, particularly if capital punishment comes into the picture. From 1995 to 2004, when New York had a capital punishment law, district attorneys had a fair degree of discretion about whether to seek the death penalty. The New York DAs varied widely in their use of the authority.

Hynes and Brown both sought the death penalty in a number of cases. Morgenthau never did, opposed to it on principle, and never suffered any political consequences for his position. But when Bronx D.A. Johnson refused to seek the death penalty in the case of Angel Diaz, who was accused of killing a police officer, Governor George Pataki removed Johnson from the case, bringing in then State Attorney General Dennis Vacco to handle to prosecution. (Diaz committed suicide before the case could come to trial.)

Today, following a Court of Appeals ruling that found the law to be unconstitutional, New York has no death penalty. Most of the candidates for DA this year expect it to remain that way, although Republicans in the State Senate have said they will try to force a vote on the issue.

DRUG LAWS

No issue has focused as much attention on the political role of district attorneys as the so-called Rockefeller drug laws. By limiting a judge’s discretion in setting sentences, the laws put more power in the hands of prosecutors. As enthusiasm for the laws dwindled over the years among a wide cross-section of New York's public and public officials, many district attorneys remained staunch supporters. "We don't support reduction in sentencing," Robert Carney, president of the New York State District Attorneys Association said in 2001. "If you take the minimum away, it removes the leverage that prosecutors have to obtain pleas and information about drug trafficking networks. We've solved murder cases using these laws." The DAs' position, some say, kept the laws intact.

But last fall saw a shift. In Albany County, longtime DA Paul Clyne, a strong supporter of the drug laws, was defeated in the Democratic primary by David Soares, a proponent of reform who went on to victory in the general election. In his primary campaign, Soares distributed flyers reading, “Paul Clyne supports the failed Rockefeller Drug Laws that cost taxpayers $550 million every year. Paul Clyne supports the Rockefeller Drug Laws that cost young people their futures.”

“The Soares victory in Albany was a wake-up call to a lot of district attorneys,” former State Senator John Dunne, who once supported the drug laws but now opposes them, told the New York Law Journal. “They have to run every four years, and this is an issue that’s not going to go away.”

Following the Albany election, Morgenthau, who had already supported reform, reportedly urged Assembly Speaker Sheldon Silver to change the Rockefeller laws. And the legislature did finally change some of the sentences. But most of the New York’s DA candidates this year say they favor further reform of the laws, including more provisions for treatment, giving judges more discretion in setting sentences and harsher laws to go after so-called drug kingpins. Morgenthau has not commented on last year’s changes.

THE MANHATTAN RACE

Former Supreme Court Justice Leslie Crocker Snyder does not explicitly mention Robert Morgenthau’s age when she discusses why she thinks he should leave office; she calls for “a DA’s office for the 21st century” with “new vision” and “new energy.”

She faults Morgenthau for putting too much focus on white-collar crimes, which, she says, in many cases could be better handled by federal prosecutors or by the state attorney general. Instead she would shift some of those resources into establishing new initiatives in city schools and in dangerous public housing projects where, she said, there is a lot of crime and people are afraid to report it. She would also focus more on Washington Heights, where language barriers and geographic distance from lower Manhattan keep many residents from getting the law enforcement they deserve. And she would create an anti-terrorism bureau to analyse information the DA's office has found in the course of drug and other investigations and pass it along to the appropriate federal agency.

Morgenthau has argued that the sharp decline in crime in Manhattan -- down more than in any other borough by some counts -- has freed up resources for white collar-crime.

Although he declined to be interviewed for this article -– on the grounds that he did not have the time and that Snyder has not yet formally declared her candidacy –- he has given a number of interviews in recent months partly in an effort to allay concerns he is too old for the job. “I can’t deny my age, but I’m in perfectly good health,” he told the Daily News. “I bicycle, I sail, I work out on the treadmill.”

Morgenthau is waging a vigorous campaign. He has raised more than $1 million (some of it left over from earlier elections) won endorsements from many Manhattan political clubs and from unions not connected with law enforcement, such as Local 1199 of the Health and Hospital Workers Union.

Snyder once served in the DA’s office, where, she says, she was the first woman allowed to try felony cases, including homicides, and founded and led the Sex Crimes Prosecution Bureau. As a Supreme Court judge, she presided over a number of cases involving dangerous drug gangs. She is not only a consultant to Law & Order; she has appeared in several episodes as a judge.

Although she concedes her attempt to oust Morgenthau will be “a tough race,” she thinks she can win it. “No one has ever scrutinized this [Morgenthau’s] office before,” she said. To advance her cause, she has raised at least $890,000 (including $300,000 from her law firm colleagues) and won support from former U.S. Attorney Mary Jo White, who chairs her campaign, and noted civil rights lawyer Richard Emery, as well as 10 law enforcement unions.

But rightly or wrongly, some view Morgenthau as an icon. “The idea of running against Robert Morgenthau is equivalent to running against J. Edgar Hoover as head of the FBI, if there had been an election for that post,” Michael Hardy, who considered challenging him in 2001, told the New York Law Journal in September of that year.

THE BROOKLYN RACE

Unlike Morgenthau, with his patrician background and apolitical image, Hynes is viewed as a tough political fighter -- too tough some say. Looming over the contest are allegations of widespread political corruption in the borough.

In many respects, this year’s race began in 2001, when Sandra Roper, a largely unknown lawyer, challenged Hynes. She captured almost 40 percent of the vote.

“I was shocked that 37 percent of the people in this community did not support me,” Hynes said, adding that he blames himself for not having spent more time with the citizens of Brooklyn. “It’s the old story,” he said, quoting the late Tip O’Neill, "People will not just vote for you -- people want to be asked.”

Since then, Hynes said, he has spent more time in neighborhoods, at churches, synagogues, senior centers, playing basketball with fifth graders. And he thinks that he has mended fences.

But the candidates running against Hynes see more serious problems, including mismanagement of the office, misuse of resources, poor decisions about which crimes to emphasize, and abuses of power. They all said they could win. “Anybody can be beaten,” said one opponent, State Senator John Sampson.

The challengers so far are:

Braxton Freddie Fenner:
A Brooklyn native, he was admitted to practice as an attorney in 1996.

Arnold Kriss:
A former assistant DA, Kriss also served as a lawyer for the police department. He has been in private practice in Brooklyn for more than 20 years and since 1996, has been counsel for the not for profit corporation that runs the San Gennaro Feast in Little Italy.

Mark Peters:
He worked for five years for the state attorney general, including serving from 2001 to 2004 as chief of Eliot Spitzers’s Public Integrity Unit, which prosecutes political corruption. He is also a former president of Brooklyn's Community School Board 15.

Sandra Roper:
Originally a pharmacist, Roper became a lawyer in the late 1980s, first working for Legal Services and then opening her own practice. She has done extensive work for the NAACP. After her unsuccessful run in 2001, prosecutors charged her with having pilfered legal fees from a former client. The criminal charges were dropped last month after a trial ended in a hung jury – and Roper agreed to refund the money.

John Sampson:
A former staff attorney for the Legal Aid Society, Sampson was elected to the New York State Senate in 1996. He represents the 19th Senatorial District, which encompasses Canarsie, East Flatbush and parts of Brownsville, Crown Heights and East New York. He also continues to work as an attorney with a private law firm.

Paul Wooten:
A Brooklyn lawyer now in private practice, he has served as an assistant DA, counsel to the New York State Black and Puerto Rican Legislative Caucus; and first deputy counsel for the 1989-90 New York Charter Revision Commission. During his career, he has handled class action cases involving Brooklyn, as well as criminal cases.

They tend to express similar criticisms of Hynes. “The management and focus of that offices has been lost, said Sampson. “The current DA has shown he is no longer interested in the job,” said Wooten.

Kriss and Sampson charge that the office has lost 39 percent of its assistant DAs in the past four years and that that has hurt its ability to get convictions in criminal cases and to bring cases to trial in a timely fashion

While they concede that all DAs in the city have lost staff due to budget cuts, they allege that Hynes has exacerbated the situation by having a top-heavy staff and, at times, hiring the wrong people. They cite, for example, his appointment of Howard Golden to a $125,000 a year post in the DA’s office after Golden quit as Brooklyn borough president because of term limits.

“He’s more interested in hiring politicians than prosecutors because he’s more interested in politics than prosecution,” said Peters.

In particular, they say Hynes has not done enough about white collar-crime. To Peters, that means auto insurance fraud. Wooten and Sampson cite predatory lending and identity theft as well.

Hynes denies he has neglected this area but, when asked to cite his accomplishment, tends to mention areas other than prosecution. These include an effort to fight hate crimes and drug abuse by having assistant DAs speak in elementary schools, encouraging drug treatment as an alternative to jail and trying to reduce repeat offenders. “The easiest thing we do is put people in jail, “ Hynes said. The difficult thing is prevention.”

Underlying the race are allegations that corruption is rife in Brooklyn, particularly its courts. So far, Hynes has indicted two judges and the leader of the Brooklyn Democratic Party on corruption charges. But many say this is too little, too late. “All of a sudden he gets the epiphany that there’s corruption going on,” said Sampson. “It’s like Rip Van Winkle.” “You can’t wait for a person to knock on your door and tell you about a crime that’s occurred,” says Kriss.

But Hynes says you do. “You’ve got to get lucky,” he said. “Judges and other politicians are very careful about how they commit corrupt acts.”

In particular, Hynes has not brought any changes explicitly related to the “selling” of judgeship in Brooklyn – a practice many believes is widespread.

“Just wait,” he said.

The race promises to be a rough and tumble battle. A sense of that came in a lengthy Harpers magazine article last fall that accused Hynes, who it depicted as a current day political boss, of unfairly targeting political opponents for prosecution and for using an incorrect voting address. After Hynes threatened a libel suit, the Magazine allowed him to respond in February.

A comment by Hynes that he would “cause pain” to political challengers prompted expressions of outrage from opponents who said they viewed it as another indication that the DA would fight dirty to keep his post. Meanwhile his opponents also freely lob accusations of impropriety and cronyism.

Gotham Gazette's Campaign 2005:
Brooklyn District Attorney

Manhattan District Attorney

Other Articles

First Real Challenge in 20 Years for Manhattan District Attorney
(2/24/05) New York Times

My Journey with the Rockefeller Drug Laws
(2/7/05) Gotham Gazette

Death Penalty
(January 2005) Gotham Gazette Opponents of New York's death penalty law, which was declared unconstitutional last year, see it as a major civil rights issue -- and don't expect to see it reinstated.

Rockefeller Drug Law Reform and Drug Courts">
(January 2005) Gotham Gazette More and more advocates are seeing drug courts as an option that offers some tangible answers to a difficult problem.

Meet the New Boss: Man vs. Machine Politics in Brooklyn
(December 2004) Harpers

DA Hynes's Response to Christopher Ketcham's article
(February 2005) Harpers

The People’s Prosecutor
(9/21/04) The Village Voice
The impacts of last year’s defeat of the incumbent DA in Albany.

Happy 85th Birthday, Bob Morgenthau
(7/26/04) New York Magazine

RELATED LINKS

Bronx District Attorney

Brooklyn District Attorney

Manhattan District Attorney

Queens District Attorney

Staten Island District Attorney

Office of the New York State Attorney General

US Attorney's Office Southern District of New York
(covers Manhattan and the Bronx)

US Attorney's Office Eastern District of New York
(covers Brooklyn, Queens and Staten Island)

New York State Division of Criminal Justice Services

New York State District Attorney Association

Bracha Graber, a social worker in the city for almost three decades, say she was appalled by the way the city's child welfare agency was falsifying records for foster care services, recording visits to children that never occurred in order to bilk the federal government out of millions of dollars. She sent an anonymous letter to the Commissioner of the Human Resources Administration - anonymous, because she feared that otherwise she might lose her job. Then, she met with officials from the office of both the state and the city comptroller. But her allegations, she says, were ignored. And so she sued, under a law called the Federal False Claims Act.

When the city and state settled the case in 1998, she received $4.9 million of the $49 million (the rest went to the federal government.) "The amount was important to the lawyers," she says. "I never did it for the money."

Now some city officials want to see the city enact a local version of the same law that enabled Graber to come forward. The New York City False Claims Act, passed by the City Council but so far neither vetoed nor signed by Mayor Michael Bloomberg, would allow whistleblowers who report fraud to file a civil suit on behalf of the government, earning up to 30 percent of any settlement. The law would focus on fraud among contractors working for the city.

The bill's proponents predict an influx of cash to city coffers. It could also mean more scrutiny of the city's vast network of human services contractors, where fraud can not only lead to cost overruns, but inadequate care for those who need it most. The bill's critics say that the cash incentive could lead to nuisance suits that are indistinguishable from extortion. Graber says that the best thing the law would do would be to protect whistleblowers from getting fired.

Widespread Fraud

Though Graber's lawsuit helped to correct the deficiencies of the city's system of foster care, two recent investigations make it clear that this kind of troubling fraud persists.

In January, the Department of Investigation announced the results of its investigation into foster care provider St. Christopher's Inc., a non-profit based in Dobbs Ferry, which resulted in the cancellation of a three-year, $86 million contract(In PDF Format).

The investigation began when whistleblowers tipped off the department that the child care agency was falsifying child records to fare better at an annual audit done by the city. Now, another foster care agency is reportedlyunder investigation for a similar falsification of records.

The New York Timesrecently ran a lengthy, three-part series scrutinizing Prison Health Services, a private health care agency with a three-year, $300 million contract from the city to care for inmates at city jails. The agency comes under fire from ex-employees and state investigators for poor quality of care, including understaffing practices such as having doctors sign in at certain jails to meet staffing quotas, but work at another jail, or having administrators sign in as doctors without seeing any patients. "The practice is clearly fraudulent," one anonymous ex-employee told the paper, and The New York Times reported whistleblower lawsuits against Prison Health Services elsewhere.

It is in just such cases that the Federal False Claims Act has come in handy. In 2003, a federal official speaking about nursing home regulation testified before Congress(In PDF Format) that, "If resident care is so poor that it effectively represents a failure to provide care, the Federal False Claims Act can be invoked," citing 20 settlements in nursing home cases since 1996, one of which involved criminal charges related to falsifying records in an attempt by a nurse to cover up wrongdoing.

Protecting Whistleblowers

The city already has city employee whistleblower law, but some say it does not go far enough When Graber asked a colleague to contact the Department of Investigation to ask about whether her name would leak out if she came forward, she was told 'Honestly, we'll try to keep it in confidence, but it will probably come out.' City law today requires the Department of Investigation to make "reasonable efforts" to keep city employee whistleblowers' names confidential if they request anonymity.

But for Graber, the lawsuit under the Federal False Claims Act seemed to be the best alternative because "the important thing about that law is it protects you from losing your job."

The current city employee whistleblower law today makes retaliatory action illegal, but some say it does not provide enough protection to prevent an employee from being fired.

A New York False Claims Act, say its supporters, would make it easy for the whistleblower to sue and collect damages, the threat of which keeps most employers from firing whistleblowers. "We have to make sure that their bravery doesn't end up with them losing their livelihood or being subject to some mistreatment," said Evan Thies, communications director for the author of the New York City False Claims Act, Councilmember David Yassky.

Pros And Cons Of The NY False Claims Act

Proponents of the bill cite the city's massive contracts budget(In PDF Format) and predict that the city would gain more than $30 million every year, as more whistleblowers come forward to report false claims.

But the bill, and the federal law on which it is modeled, make some critics cringe. Greed can easily overwhelm any sense of justice, critics argue. A Forbes magazine cover storyin its March 14th issue criticized whistleblowers who spend their time documenting fraud rather than trying to stop it.

The dollars involved are astronomical at the federal level, with the federal government recovering over $12 billion in civil fraud cases since the legislation was passed in 1986. Medicare and Medicaid fraud make up the majority of winning and settled cases filed under the Federal False Claims Act. In 2003, $1.7 out of $2.1 billion recovered was related to health care fraud.

More than half of all cases involving a whistleblower also involve alleged fraud against the Department of Health and Human Services, according to the non-profit group Taxpayers Against Fraud.

In New York, Thies said that the law recognizes the difficulty the Department of Investigation has in investigating every lead on a false claim. In a 2002 report, "The DOI Must Do More To Protect Whistleblowers and City Employees" (in pdf format) an official from the Department of Investigation testified that the agency received an average of 8,500 complaints a year, many from whistleblowers. "It's just that they don't have the staff, or the time," said Thies. The new law would not overburden city lawyers, either, Thies said. While would-be whistleblowers must report their complaint to the city, "the idea here is that the city and taxpayers reap the benefits, but an independent party does all the work."

However, the bill includes language requiring the city to "diligently investigate" all complaints, and then allows city officials to decide case by case how many resources to devote. If the city decides to let outside parties do the investigative work, the success of a case might depend on the industriousness of the whistleblower and the willingness of the whistleblower's lawyer to devote resources to the case.

D.C. lawyer John Boese, a critic of the bill whose client roster includes construction agencies, universities and other government contractors who have been sued under the federal version of the law, spoke before the City Council last year, warning that the law will wind up costing the city, thanks to the cost of investigating claims. Boese also warned that the law, with stiff penalties for contractors, could lead to enough lawsuits to make honest contractors leery of doing business with the city. "To a whistleblower, it's a lot like a lottery ticket," Boese said, "whether you have a good case or a bad case."

Several states have enacted their own statutes. New York State Attorney General Elliott Spitzer has called for a state law.

If the New York City version is signed into law, the city would join Chicago as the only other city giving whistleblowers a chance to sue. 

Nilma Rivas was walking with her grandson in East Harlem early one evening when a group of men in a car began shooting on the sidewalk. A stray bullet hit her in the leg, and she bled to death. She was 52 years old.

“People who knew what to do ran,” Jose Rivera, a resident who witnessed the shooting, told the New York Times. “Those who didn’t know what to do stood there.”

That was in November, 1993, a time when the newspaper could refer to random shootings as "numbingly common."

A dozen years later, Javier Llano, walking in that same neighborhood, is worried about crime too. But the crimes that engage Llano, the district manager of the local community board, are pickpocketing and the theft of items left in the cafeteria at Mount Sinai hospital.

In the decade after Rivas's killing, crime in East Harlem dropped 60 percent. The number of murders in the police precinct where Rivas died dropped from 37 a year to eight.

The story is much the same all over New York City, which has experienced a dramatic drop in crime for 15 years in a row now. In 1990, 2,245 were murdered; in 2004, there were 566 murders citywide. In 1990, 147,123 cars were stolen; in 2004, auto thefts in the city totaled 21,848. The Federal Bureau of Investigation now considers New York the country’s safest big city.

How did this happen? Why did it happen? Mayor Michael Bloomberg credits the policies of his administration and those of his predecessor, and is making the drop in crime a centerpiece of his campaign for re-election. But others offer different explanations. And some experts say that the drop in crime remains a mystery.

Most New Yorkers, though, are probably less interested in why crime has been dropping than in whether it will continue to do so. Some fear an inevitable reversal of the trend, and point to a recent increase in crime in several neighborhoods. (See related story in the Community Gazettes for district 3, Against the Tide, Crime Continues Rising in Chelsea)

With fewer resources allocated to go after crime, some say that the administration is putting itself in a tricky situation. If no one is sure why the crime rate has continued to decrease, how can they know that it won't start to increase? And if Bloomberg and his police commissioner are taking credit for keeping the crime rate down, how can they avoid the blame if it starts to go back up?

BLOOMBERG'S POLICIES

When he succeeded Rudolph Giuliani as mayor in 2002, Mayor Bloomberg vowed he would keep crime down while at the same time improving community relations. In making these promises, he was responding to the dual legacy of Rudolph Giuliani.

Many New Yorkers identified the decline in crime with Giuliani’s tough tactics. Giuliani saw lowering crime rates as his major goal in office, and adopted a relentless policing style to do so, combating minor, so-called quality of life offenses.

On the face of it, Bloomberg’s basic policing philosophy is a continuation of Giuliani’s. Both administrations have focused on cracking down on minor crimes. Bloomberg immediately initiated Operation Clean Sweep upon coming into office to cut down on quality of life offenses. In its first two years, the operation totaled 20,000 arrests and 209 summonses.

Under Bloomberg, courts are not inclined to offer Desk Appearance Tickets – tickets for small crimes intended to move people through the system quickly – meaning that offenders are more likely to spend the night in jail.

The police department is also looking at ways to improve analysis of crime data, setting the stage for targeted operations that resemble those that Giuliani adopted citywide.

“They’re constantly working on being smarter, and putting people where the problems are, and having the data and the information to do it quicker,” said Eli Silverman, a professor at John Jay College of Criminal Justice.

Operation Impact, for example, is the administration’s major such effort. It uses computer-generated statistics to come up with troubled “Impact Zones”, which it then floods with rookie police officers. The administration notes that crime in these areas dropped 26 percent in 2004. It has moved its focus to a new set of areas for 2005.

Limits to Success?

In some cases, though, the idea of saturation seems to be pushed near its limit. While crime declined across the board last year, major felonies were up 2.1 percent on the subway, despite a nearly 40 percent increase in the number of arrests.

Over-reliance on the numbers has also been said to give the department tunnel vision. William Bratton, the police commissioner who established the major policing policies of the Giuliani administration, wrote that reliance on computer-generated statistics tends to reduce focus on things that cannot be measured easily (in pdf format).

The relentless pursuit of lower crime rates through increased police vigilance is also having an effect on the police officers themselves. During the Giuliani years, the pressure to lower crime was seen as reason for overly aggressive tactics; in recent years precincts having trouble bringing down crime through policing have reverted to creative manipulation of the statistics (and, in some cases, outright fabrication.)

Rank-and-file police officers are also without a contract. This, combined with pressure to continuously outperform themselves, has led to an all-time low in morale, according to police union president Patrick Lynch.

Improving on Community Relations?

The policing strategies that Bloomberg has inherited alienated a large swath of the city’s population during the Giuliani administration, particularly the young black and Hispanic men who were most likely to be the targets of crackdowns. They were also linked to high profile police killings and other acts of brutality like the killing of Amadou Diallo and the torture of Abner Louimathat marred the Giuliani administration.

At first glance, such tension has seemed absent from the Bloomberg years.

In truth, though, the number of complaints to the Civilian Complaint Review Board during the Bloomberg years has actually been higher than it was under Giuliani. It continues to rise. In the first six months of 2004 the number of complaints grew about 15 percent as compared to 2003, numbers that the police department dismisses as indicative of increased ease in filing complaints through systems like 311. Young black men are still more likely to file complaints than any other group.

Nor have the last three years been free of innocent victims: a police officer shot and killed Timothy Stansbury while he was walking across the roof of his grandmother’s housing development; Alberta Spruill was killed in her apartment building in Harlem during a faulty raid; a police officer shot and killed African immigrant Ousmane Zongo in a raid that some have criticized as reminiscent of the troubling excesses of the Giuliani years.

What has changed is that these events have failed to develop into widespread discontent. To many, this serves as a testament to the political skills of Bloomberg and Kelly. Their prowess in public relations, some say, has diverted attention away from what really amounts to more of the same.

“Part of the thing that galvanized people was Giuliani with this uncaring attitude, and Bloomberg has not done that,” said Angelo Falcon, president of the Institute for Puerto Rican Policy. “It’s still a serious problem in our communities. What has changed on the ground is that people aren’t paying attention in the same way.”

Others give the current administration more credit, saying that Kelly has cut back on the more aggressive stop-and-frisk tactics that were producing much tension while also reaching out to communities.

“What [Kelly] is saying is that police commanders should stay in touch with their communities, find out what the problems are, attend meetings,” said Edward Mamet, a retired police captain who now works as a police consultant. “It doesn’t have to be in a formal way. It’s a culture that has to be established.”

In East Harlem, says Javier Llano of Community Board 11, police officers not only meet with him, but also with local businesses and community organizations in a way that never happened under Giuliani. These meetings have inspired Llano, he says, to think of new ways to improve the burgeoning relationship between the police and the community.

On the other hand, developing closer relationships with local police officers has had at least one drawback. Officers have recently been coming to Llano with troubling news. Don’t be surprised if the crime rate starts going up, one warned him, because we can’t possibly make it go any lower.

WHY THE DROP IN CRIME?

To accept or reject this argument -- that the crime rate cannot possibly go any lower -- it helps to understand the debate over the causes for the unprecedented decline in crime.

Those trying to explain the drop in crime generally gather into two opposing camps.

On one side are those who believe that poverty, joblessness, and other social and economic factors drive crime rates. According to this view, the nationwide drop in crime during the 1990s was due mainly to the end of the crack cocaine epidemic and the strong economy. New York’s specific success was also credited to a rise in immigrants – who commit fewer crimes – and a drop in the number of young men – who commit more.

The other side of the debate argues that policing was what mattered most, and that New York City’s experience proves that. By adopting the broken windows theory and pioneering Compstat, the New York Police Department had developed new, more effective ways to combat crime.

The New York Police Department underwent major changes in the 1990s that continue to the present day. After increasing significantly in size, it embraced a new philosophy under Giuliani. The broken windows theory holds that unpunished minor offenses led to an atmosphere of disorder that would lead to more major crimes.

The department’s goal became to eliminate that atmosphere. To do so, it employed Compstat, a computer database that created detailed information about crime on a precinct-by-precinct basis. This was neither a technological innovation nor a a completely new idea; Compstat used off-the-shelf software to do something that police had long done by hand. But it allowed the department to do it faster, and it made precincts responsible for their own performances. In monthly meetings, traditional barriers to communication were eliminated.

“We had developed a method to reduce crime and disorder that would work in any city in America – indeed, in any city in the world,” wrote Police Commissioner William Bratton, who implemented Compstat and the broken windows theory in New York.

The ideas spread across the country, but not every city in America adopted them, and skeptics point out that many of these cities saw drops in crime as well. In the 1990s, cities like Boston, San Francisco, and San Diego saw crime drop significantly.

“Long derided by conservatives for its alternative crime policies, San Francisco registered reductions in crime that exceed or equal comparable cities and jurisdictions – including New York,” wrote the Center on Juvenile and Criminal Justice in a 2002 report (in pdf format).

Recent years have seen some of these successes reversed. At the same time, a fluctuating economy did nothing to reverse the crime rate. Some proponents of the arguments that social and economic drive crime rates were no longer convinced that these arguments gave the full picture.

Andrew Karmen, a professor at John Jay College of Criminal Science and the author of New York Murder Mystery, a book about the nationwide decline in crime during the 1990s, points to continuing social factors – more high school students going to college, the continued boom in immigration – while also saying that the police department has been a significant factor.

But the failure of either major theory to explain fully the drop in crime leads Karmen to the conclusion that what is happening in New York is in need of examination outside of the usual argument between the two camps. He has been calling for a non-political commission to study the phenomenon so that policymakers will not be caught unaware when the trend reverses.

“I want to present the whole thing as a mystery and I want to claim that no one knows for sure why crime has dropped so sharply in New York,” he said, which makes it impossible to know when the trend will stop.

HOW LOW CAN THE CRIME RATE GO?

At various times throughout the last 15 years, experts have said that crime had reached its lowest possible level.

“Since you can never eliminate crime, you have to look at what is the satisfactory level of crime that we can tolerate,” said Mamet, the police consultant. Some think that 566 murders is close to the best that New York can hope for.

Whether a certain number of crimes constitute a high or low crime rate is, of course, relative. In the 1950s, 300 or 400 murders were accepted as the average; by 1996, the 1,000-murder mark was considered the “magic number” to beat.

"If at midnight of December 31 the homicide rate is below 1,000, you can bet the corks will be popping at City Hall.” Newsday writer Dennis Duggan predicted several weeks before the end of 1996.

There would hardly be celebration at the mayor’s office if there are anywhere near 1,000 murders this year, just as many European cities would be shocked to suffer from the "low crime rate" that New York enjoys today. The murder rate in New York City, for example, is calculated to be 6.9 per 100,000 people. By contrast, the murder rate in London is 2.4 per 100,000. And whatever the rate, the absolute number of murders in New York City last year was higher than any other city in the United States. Put it all together, and there were as many Americans killed in New York City between 1962 and 2002 as died in the Vietnam War. That doesn't sound very low.

Related Links
New York Police Department
Vera Institute of Justice
Federal Bureau of Investigation Uniform Crime Reports
Bureau of Justice Statistics: Overview of Homicide Trends in the US
Does Policing Matter? An Analysis of the New York City's Police Reforms (by the Manhattan Institute)
Shattering Broken Windows: An Analysis of San Francisco's Alternative Crime Policies (by the Center on Juvenile and Criminal Justice)
Reconsidering the 'Broken Windows' Theory (an audio file by National Public Radio)