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Gotham Gazette

The Place for New York Policy and politics

Citizens Union

Public Safety

A Look At Nightclub Mayhem


New Yorkers who think that the city has seen a lot of murders this year are right. Police department statistics(in pdf format) show that 151 people were murdered in the five boroughs between January 1 and April 13, up from 138 over the same period last year. This 9.4 percent year-to-date increase in murders parallels a 6.2 percent increase in rape. The city has had 561 reported rapes so far this year, up from 528 last year. Other major crimes have declined: felonious assault is down 9.8 percent through mid-April, and burglary and grand larceny auto are both down 15.2 percent. The rise in murder is particularly worrisome to analysts, however, because it is the one crime that everyone agrees to be recorded accurately.

MURDER UP

It has been a murderous few weeks. February 8 was the first night of a murder spree that killed four men (a fifth was wounded) in Brooklyn and Queens. Saying he had targeted Middle Easterners to avenge September 11, a Brooklyn man confessed and was indicted on multiple counts by a grand jury on April 11. On April 13, Dana Blake, a bouncer at Guernica on Avenue B, was stabbed to death after a melee involving smokers. A Guernica patron confessed, and has been charged. On April 24, Lyric Benson, a beautiful, 22-year-old aspiring actress, was shot to death in front of her apartment by her former fiancé as her mother, who had opened the door for her, looked on in horror. The fiancé then turned the gun on himself.

In the early morning of April 25, a rap star and his entourage got into a violent argument with a car full of apparent strangers following a traffic accident outside Centro-Fly, a hip-hop club at 45 West 21st Street. Rapper Freaky Zeeky was shot twice and run over by a car. His bodyguard was killed. "This has nothing to do with rap," a man who called himself a close friend toldthe New York Times. "Just two groups of men who got into trouble."

But the two groups of men got into trouble because they had driven to Chelsea to go clubbing.

NEW YORK'S TROUBLED NIGHTLIFE

Residents of Chelsea have complained for years about the proliferation of nightclubs in their neighborhood. Even as many notorious clubs have been shut down, the hip-hop clubs that have opened around the Flatiron Building have added new problems to the old. Certainly the mix of alcohol, drugs, and late-night partying is volatile, and few neighborhoods want drug- and alcohol-fueled youngsters roaming their streets.

The Bloomberg administration has continued the Giuliani administration's campaign against nightclub violations. After a 22-month drug investigation, the NYPD closed two clubson February 7-the Sound Factory, at 616-620 West 46th Street, and Exit, at 610 West 56th Street.

The police said both clubs had flourishing drug trades, particularly in Ecstasy (methylenedioxy methamphetamine or MDMA) and Special K (ketamine), but also in cocaine and marijuana.

Exit was re-opened March 21 by order of a judge, who reprimanded the police for wasting "tremendous resources" on a "less-than-productive probe." The police are very angry, according to the Daily News, the only paper to cover the reopening of the "drug-fueled dens."

But Exit's problems persist. On April 19, one of its patrons was arrested for harassing other patrons. It turned out that he was already facing charges for brutally beating an off-duty New York City police officer at a Jersey City karaoke bar in November. The cop was left paralyzed, according to the Daily News. Police said the arrested patron was strung out on Ecstasy, one of the drugs they had been able to buy so readily during their investigation.

Clubs like Exit that handle 10,000 patrons a weekend are bound to attract trouble, even when they are well run. They need sophisticated security, always a very limited, expensive commodity. Club owners recently asked the Bloomberg administration to allow them to hire off-duty cops, but were rebuffed. As former Tunnel and Limelight owner Peter Gatien once complainedto the New York Press, "The industry is singled out for a standard that no one can live up to. When you have an event at Madison Square Garden, you have 300 cops helping people. At nightclubs, they set roadblocks to ruin your business."

Yet the nightlife industry is crucial both to New York's image and its economy. A 1998 study by Audience Research & Analysis found that music and dance clubs contribute about $2.9 billion yearly to the city's economy, directly employing over 4,700 people. The number of clubgoers-24.3 million annually-exceeds the number of people going to Broadway acts, sports events, the Empire State Building, and the Metropolitan Museum of Art combined. Over a third of clubgoers are from outside New York, and 89 percent of them say that dancing or seeing a band was their main reason for coming to New York.

SMOKING BAN ADS FUEL

Because of the immense difficulties facing anyone trying to get a New York cabaret license, club sites often have multiple lives. Any site that comes with a cabaret license is disproportionately valuable. Thus Guernica, where bouncer Dana Blake was killed, is attempting a new life as a sedate, upscale club. But it is housed in the space that once held Save the Robots, a glamorous but infamous after-hours bar that didn't make it.

Guernica and the club scene in general had plenty of problems before Mayor Bloomberg's smoking ban. Now club and bar personnel are responsible for enforcing a smoking ban under the most trying of circumstances. Many of them don't really believe in it since the ban is causing them loads of trouble, costing them money in business and tips foregone. Income in bars has dropped by 20 percent since the ban went into effect on April 1, says the Economist.

Club owner David Rabin, president of New York Nightlife Association, toldCBS News that "We predicted all of it. We predicted worse, and I think worse is coming."

And now the ban has cost bouncer Dana Blake his life. The three siblings who were first charged with Dana Blake's murder toldpolice that their father was a famous gangster. He had directed a secretive cabal of businessmen involved in drug deals, gambling, extortions and contract killings in Chinatown. He cooperated with federal investigators after being indicted in 1995 for ordering three murders and conspiracy in a fourth. The Manhattan D.A. refused to prosecute the three siblings. One of their friends has since been arrested and charged.

RAPE KEEPS GOING UP

The city has averaged four reported rapes per day since January 1, about 9 percent more than last year. That's the bad news. But the city has also averaged four arrests per day, which is an increase over last year, although NYPD sex crimes chief Susan Morley has not specified by how much. Urged on by Morley and the NYPD, the City Council has submitted a resolution to the state legislature asking it to pass a bill extending or abolishing (Governor Pataki's preference) the 10-year statute of limitations on unsolved rape cases.

The NYPD says it has reviewed two-thirds of the 13,000 rape kits in its backlog, and has produced almost 1,000 DNA matches. Morley says they have matches back to the late 1980s-which will do no good unless the legislature extends the statute of limitations. Surely if ever an extension was needed it is this.

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mental Health Care For Released Inmates


The city will for the first time provide mental health care for mentally ill inmates after they are released from jail, thanks to an agreement approved by New York County Supreme Court Justice Richard F. Braun on April 2, which comes after a lawsuit filed by mentally ill inmates themselves.

New York City jails yearly house 33,000 mentally ill pre-trial detainees, individuals not convicted or sentenced of a crime. The average stay in jail for these inmates is as long as 43 days.

While in jail, the city provides these inmates with mental health care and treatment. The care ranges from in-jail, outpatient treatment to placement in segregated mental health units or psychiatric wards. The inmates' treatment can include psychotropic medications and individual or group therapy.

Prior to the settlement, the inmates' care and treatment was terminated upon their release. Once released, the inmates were not provided with care, treatment, government assistance, housing referrals or other assistance to make the transition to society.

Instead, the released mentally ill inmates were taken by bus to Queens Plaza subway station between 2:00 and 6:00 am, given a buck, fifty and a roundtrip Metrocard.

In 1999, several of the inmates who were receiving mental health care during their confinement sued to stop this practice on their own behalf and all other mentally ill inmates.

The city fought the suit, using various legalistic arguments. It claimed that the inmates did not have legal standing in which to sue, since, it argued, even if the city was breaking the mental hygiene law, which required treatment and transition upon the inmates' release, only the state attorney general had the right to enforce that law. The city also claimed that the mental hygiene law applied to developmental centers, patients at psychiatric centers or patients at certain psychiatric inpatient services, but not to city jails.

In a curt decision on July 14, 2000, Justice Braun repudiated the city's arguments. Yes, he ruled, mentally ill inmates do have the authority to challenge the city's policy and enforce the mental hygiene law. And, he ruled, enforcing the mental hygiene law to prevent mental illness is a matter of "public concern" applicable to and enforceable by all, including those incarcerated.

The court ordered the city to continue to provide care to all inmates older than 18 suffering from a mental illness, if that inmate is unlikely to survive safely in the community without supervision, has a history of failing to comply with treatment, is unlikely to participate in the recommended treatment, may relapse, and would benefit from assisted outpatient treatment.

Justice Braun rejected the city's argument that the mental hygiene law did not apply to city jails. The state law, and city regulations, Justice Braun found, specifically provided for intervention and transitional services to released inmates at correctional facilities. The city appealed and the Appellate Division, First Department, the state's intermediate appellate court, upheld the decision.

This decision led to a settlement on January 8, 2003 between the parties, which the court approved on April 2nd.

Under the settlement, the city must provide discharge planning for inmates released from custody. Qualifying inmates are entitled to receive a wide range of mental health treatment and services upon release, including medication, referral to programs, substance abuse treatment and case management service. As part of the discharge planning, qualifying inmates also receive help in submitting applications for Medicaid, food stamps, social security, veteran's benefits and other public assistance benefits. The city has also stated that it would, "in most cases," release mentally ill inmates during daylight hours.

The settlement is valid for five years. During that time, two independent monitors, one chosen by counsel for the inmates and one by the city, will oversee the city's compliance. The monitors will report quarterly, develop performance goals and make recommendations.

Justice Braun's bold July, 2000 order should be recognized as the impetus for the settlement and for remedying a dangerous and compassionless policy of releasing mentally ill inmates in the middle of the night with no transitional assistance. The devastating effect the policy had on former inmates is difficult to ascertain, but, as Justice Braun noted in his order the former inmates were simply "return[ing] to the cycle of likely harm to themselves and/or others, through substance abuse, mental and physical health deterioration, homelessness, indigence, crime, re-arrest, and re-incarceration."

The injustice brought about by this policy has now been remedied though an 80-page settlement. The benefits will not only be felt by the individual former inmates, but also by society. Again, quoting Justice Braun's decision "[i]t is not only to the[ inmates'] benefit to provide them with a discharge plan but to that of all of us if such a plan can aid at least some of [the inmates] to become healthier and thus more productive members of society who are not harmful to themselves and/or others."

The case is: Brad H. v. City of New York, Index No. 117882/99 (Braun, J.) (N.Y.Cty.Sup.Ct.) (Attorneys: Christopher K. Tahbaz, Patricia G. Corley, Emily O'Neil Slater, Douglas Lasdon, Raymond H. Brescia, Heather Barr, John A. Gresham, John Beaglehole, Eileen Sullivan, Faune Devlin, Jeffrey K. Powell, for Brad H.; Michael A. Cardozo, Thomas C. Crane, Jeffrey S. Dantowitz, for NYC).

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

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


The 9/11 Killer

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

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

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

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

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

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

HEARINGS ON TERRORISM BEGIN AT LAST

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

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

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

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

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

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

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

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

NEW YORK'S SENATOR MOYNIHAN DIES

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

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

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

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


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

FIFTY YEARS IN THE MAKING

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

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

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

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

The union unsuccessfully sued.

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

ATTEMPT AT INDEPENDENT PROSECUTION AND IMPARTIAL REVIEW

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

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

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

UNIONS SUE

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

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

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

GREATER EFFICIENCY, TRUST UNDER CIVILIAN CONTROL

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

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

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

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

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

The Anti-War Protest And The Police


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

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

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

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

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

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

A BAD TIME WAS HAD BY ALL

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

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

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

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

WHAT LIES AHEAD

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

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

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

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

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

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

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

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

POLICE ASK FOR MORE SURVEILLANCE AUTHORITY

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

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

POLICE AND IMMIGRATION SERVICE ACCUSE ONE ANOTHER

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

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

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

Do Welfare Workers Deserve Workplace Protection?


Are welfare recipients in New York City's work program protected from workplace discrimination?

"The next phase of welfare reform . . . should focus on . . . ensuring that those. . . who have already made the transition from welfare to work, stay employed or, better yet, move up the career ladder," Mayor Michael Bloomberg has said.

On February 5, 2003, the United States Court of Appeals for the Second Circuit, the federal appeals court, heard oral arguments in a case that could have a major effect on whether Bloomberg's idea becomes a reality. The case centers on whether individuals who are required to work in a government agency in order to receive their welfare benefits are entitled to protection against workplace discrimination. The decision will affect approximately 130,000 welfare recipients a year, who work in New York City agencies, and will determine what, if any, protections they have from being sexually harassed, racially discriminated against or subject to other workplace discrimination.

THE WORK EXPERIENCE PROGRAM

The federal and state governments require New York City to provide welfare to anyone who, according to the state law, is "unable to provide for himself." The city is also mandated to develop a system to place in a work program 50 percent of single parents and 90 percent of adults who are in two-parent families New York City's work program, Work Experience Program (WEP), requires welfare recipients to work at various city agencies in return for their welfare benefits. For every hour the participants work they earn the minimum wage, paid to them via their welfare benefit. Typical program positions are entry-level office assistants and painting and cleaning public property.

UNITED STATES V. CITY OF NEW YORK

The case that was argued on February 5 involved five women in the work program. They alleged that their supervisors sexually harassed them, discriminated against them or retaliated against them for complaining about the discrimination. The women sued under the federal Civil Rights Act of 1964, which prohibits workplace discrimination when the discrimination involves those legally defined as an "employee" and "employer."

Several of the women also filed a separate suit in the state court. The primary difference in the state court cases was that the women claimed discrimination under the state and city anti-discrimination laws, instead of the federal statute.

On March 8, 2002, U.S. District Court Judge Robert C. Casey dismissed the federal case. Judge Casey decided that the women were not "employees" of New York City, even though they were paid for their work at the agencies and the agencies set their hours, schedule and where they would work. Because the women were not "hired" by the agencies and did not receive sick pay, health insurance, vacation time, life insurance and other benefits, Judge Casey ruled they were not "employees."

Several months later, New York County Supreme Court Justice Michael D. Stallman dismissed the state court case. Believing he was restricted by Judge Casey's decision, Justice Stallman ruled that Work Experience Program workers were not "employees" and therefore, were not entitled to protection under the state and city anti-discrimination laws. Justice Stallman stated, "WEP was intended to give public assistance recipients work experience and to provide the public with some useful service as a condition of continued receipt of public assistance. Nothing in the program either creates an employment relationship or was intended to create an employment relationship."

Welfare recipients' sole recourse for alleged harassment or discrimination was not to file a lawsuit, but rather, Justice Stallman concluded, to file a grievance with the city Human Resources Administration.

On May 3, 2002, the women appealed Judge Casey's decision in the federal case to the federal appellate court and on September 19, 2002, the women filed a notice of appeal to appeal the state case.

WHY THE CASE IS IMPORTANT

The decision as to whether Work Experience Program participants are entitled to protections under the anti-discrimination laws will have substantial implications for the 130,000 individuals a year who participate in the program.

The mayor has noted that "since requiring people to work is the best way to help them move to self-sufficiency, everyone who can work should work if they want to receive public assistance."

Achieving "self-sufficiency" can only be attained if work and the workplace foster non-discriminatory practices and protect workers. It is unlikely that the program will lead to "self-sufficiency" or economic independence for anyone who is subjected to groping, howling, cat-calling, or racial or religious slurs.

Justice Stallman noted that program participants, like all city employees, could file a disciplinary grievance with the Human Resources Administration. The city's grievance procedures are focused on disciplining the individual charged with committing the harassment or discrimination and addressing their continued employment with the city. The grievance procedures do not allow for compensation or other relief to the victim of the harassment. In contrast, the anti-discrimination laws are designed to compensate victims for the pain, suffering and mental anguish they suffer from being harassed or discriminated against in the workplace.

People should not be subjected to the embarrassment, fear or other injury inflicted by discriminatory practices simply by seeking welfare benefits. Providing the protections of the anti-discrimination laws will, in theory, deter future discrimination.

Finally, the decision sets a peculiar precedent for supervisors. Essentially, supervisors can treat equal positions differently. Although supervisors do not have carte blanche to discriminate against Work Experience Program workers, they do at least theoretically risk much less by discriminating against these workers than against other city "employees."

The federal appeals court must now decide whether the Work Experience Program provides a serious point of transition from welfare to work, with the protections that other city workers have.

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

 

The District Attorney vs. the Police


The narrator of the NBC crime drama Law & Order has it right every Wednesday evening when he says, "In the criminal justice system the people are represented by two separate yet equally important groups-the police who investigate crime and the district attorneys who prosecute the offenders." Now these two separate yet equally important groups are virtually at war with one another over the Central Park Jogger case.

When in January, 2002, imprisoned murderer and serial rapist Matias Reyes confessed to a corrections officer that he and he alone had assaulted and raped the jogger on April 19, 1989, he launched the two agencies on separate missions to find out what really happened that night. Yet each agency's search for the truth has been hampered by its parallel search for self-vindication.

And while the two agencies may theoretically be equally important in the justice system, the D.A.'s office can outmaneuver the police department when it chooses, relegating detectives to secondary importance or even excluding them altogether. The Manhattan D.A.'s office has done this repeatedly since it reopened the jogger investigation some time in the winter of 2002. (Like so many important details, the precise date has not been given publicly.)

The district attorney's office has maintained command of both the investigation and the distribution of information to the media, with the result that the New York Times in particular has often published early, sympathetic interpretations of the office's austerely phrased, seemingly neutral legal documents.

The district attorney's 58-page filing in state Supreme Court on Dec. 5, 2002-known as the Ryan Affirmation after Assistant District Attorney Nancy Ryan who signed it-recommended that the court vacate all convictions of the five defendants. The specific legal issue in the defendants' motions was: Does the newly discovered evidence create a probability that, if the new evidence been received at trial, it would have resulted in a verdict more favorable to the defendants on one or more charges? The yes conclusion was nearly incontestable. But almost everything else about the case remains in dispute.

The January 27 release of a report by a three-man panel appointed by Police Commissioner Raymond Kelly is a not completely successful attempt by the Police Department to put forward a different analysis.

THE POLICE PANEL'S SCENARIO

The panel attacks Reyes's claim that he acted alone, pointing out that many commentators have assumed only two possibilities-that either Reyes acted alone or that the defendants did. Instead, it says, "Our examination of the facts leads us to suggest that there is an alternative theory of the attack upon the jogger, that both the defendants and Reyes assaulted her, perhaps successively."

The panel suggests that the defendants might have "abandoned the jogger after mauling her in the hit-and-run style typical of their rampage." Reyes might have followed them, attacking her brutally. The "vicious outrages inflicted upon the jogger" would have been more characteristic of Reyes than of the defendants, says the panel. Indeed, the "defendants' lesser role would in fact be consistent with their confessions."

The untitled report is signed at the end by the two outside lawyers-Michael Armstrong and Jules Martin-and by the deputy police commissioner for legal matters, Stephen Hammerman. Kelly's hope in appointing the panel, according to the New York Times, was that the presence of distinguished outsiders would ensure a thorough investigation not hobbled by institutional self-protection. Armstrong, a former Queens district attorney and federal prosecutor, is a partner in the firm of Kronish Lieb Weiner & Hellman. In the early 1970s, he was chief counsel to the Knapp Commission, whose investigation of police corruption had been instigated by Frank Serpico's well-known charges. Martin, a police officer for 29 years who retired in 1997 as chief of the department's Housing Bureau, is now an assistant vice president at New York University.

The panel says the district attorney's office excluded the police from its investigation last year, refusing to give detectives access to interviews with Reyes-even after the fact-and refusing to follow up on leads the police regarded as promising. Even though the D.A.'s office spent hours interviewing Reyes, police were allowed only to view one videotaped interview and to listen to one brief audio recording of another interview. And since no hearing was held on the defendants' motion to vacate, no cross-examination of Reyes under oath was ever conducted in public. Nor were the interviews ever released. The panel also complains that inmates who claimed to have been told of the assaults by Reyes were never interviewed by anyone.

Even if the district attorney had legitimate reasons for excluding the police from interviews, what possible reason could the office have for not taping all communication with Reyes and making those tapes available to the NYPD? How could the search for truth be furthered by withholding the interviews? And why not interview the inmates who claimed Reyes had given them accounts of the assault? The Ryan Affirmation seeks to give Reyes substantial credence, saying, "Information Reyes has provided about himself and his history has consistently proven to be reliable and accurate, both about matters related to the case and matters with no direct connection to it. Reyes has also been candid, even with respect to aspects of his history that might cast doubt on his credibility."

REYES'S CLAIM OF ACTING ALONE

Media reports have asserted that forensic evidence confirmed Reyes's claim of acting alone, but this is not true. Much of the forensic evidence was contaminated in the intervening years-sloppy handling of evidence being yet another local scandal-and the intact evidence was inconclusive. Meanwhile, members of the jogger's medical team had come forward to say that her wounds were inconsistent with a single assailant. The Ryan Affirmation ignored their testimony.

The only evidence that Reyes acted alone is his own testimony, which makes his credibility important. (He was not given a polygraph examination. "Perhaps," says the panel, "he is thought to be too unstable to allow for a meaningful test.") All professional assessments of him over the years-including by his own attorney-have doubted his honesty and stability.

Nonetheless, the district accepts Reyes's startlingly unlikely assertion that he was moved to come forward because of his "positive experiences" in prison, where he was treated "decently despite the nature of his criminal history." He also said he felt guilty on seeing the jogger defendant Kharey Wise, a fellow inmate in the Auburn Correctional Facility, knowing that he had committed the crime for which Wise was imprisoned.

The panel offers a more convincing motivation than altruism for Reyes's confession: He received a favorable prison assignment. Saying that he was afraid of Wise, Reyes demanded and received a transfer back to his previous facility, the Clinton Assessment Programs Prepared Unit, from which he had been expelled in 2001 for fighting. The unit mainly houses notorious or famous inmates who might be targets for inmate abuse. It has only 260 beds and one of the lowest inmate/correction officer ratios in the system. Reyes had spent nine of his thirteen years in prison at unit and knew well its relative pleasantness and safety. Now he is back there. Said the panel, "By claiming that he had committed the crime for which others were convicted and served time, he put himself in the position of needing protection from the defendants or their friends in prison."

D.A.'S OFFICE DENIES POLICE PANEL'S THEORY

In hearings before the City Council on January 29, Manhattan Chief Assistant District Attorney James Kindler denied there was any evidence to support the panel's alternative theory that the five original defendants participated in the attack on the jogger. Said Kindler: "The theory that Reyes may have come along later, it is a theory, there is no evidence to support it."

Kindler denied that the district attorney had withheld information from the police or other officials. But even as he was speaking his former colleague, Linda Fairstein, who had headed the Sex Crimes Unit during the prosecution of the case, submitted a written statement saying the D.A.'s office had refused to interview her. Outspoken in her anger, Fairstein said recently to NY1: "The untested word of a psychopathic murderer who raped four other women, killed one in the presence of her . . . children and raped his mother--he now says he did this alone and that's untested in a court of law?"

The debate about whether Reyes did it alone or not continued after the City Council hearings with yet another piece by the New York Times presenting newly released inside information-what it calls "a little-noted documentary record" of the first moments of the attack. A crime scene detective had measured and photographed the drag marks left by the jogger's body--marks consistent with a single attacker, according to unnamed prosecutors.

POLICE PANEL REVEALS POLICE INCOMPETENCE

The Police Department panel seems oddly oblivious to the level of police incompetence exposed by its recommendations. It recommends improved accountability and control of evidence, for example, noting that the Manhattan Chief of Detectives had taken home the only copies of Polaroid pictures of the jogger, thereby forcing the prosecutor to question the suspects without them. Not very reassuringly the panel says this does not "appear to be a systemic problem and is unlikely to recur."

The panel recommends better forensic management, noting that the pants of one defendant were put on the precinct floor while being photographed. The Ryan Affirmation essentially says that most of the forensic evidence was lost or contaminated over the years. The police panel says this is unlikely to happen today because of NYPD reforms in 1995.

Most shocking, however, are the panel's casual comments about the failure of the police and prosecutors to follow up on a vicious rape two days before the jogger rape. "There has been some criticism directed at the department," it notes, "for the failure to connect the April 17, 1989 rape to the April 19, 1989 attack on the jogger. Reyes was identified as a possible suspect in the April 17, 1989 rape, and was later arrested, in August, 1989, for another rape and murder to which he ultimately pleaded guilty. If, at the time, it had occurred to either the police or the prosecutors that the April 19 rape might have been committed by the same individual that had raped someone on April 17, it would have been simple to compare the DNA recovered from the jogger against that of the defendant they now had in custody. But, the police and the District Attorney's office had a set of confessions and were satisfied that the defendants perpetrated the attack on the jogger. They had no cause to search for links to other cases until DNA tests in November, 1989, indicated that the semen from the jogger did not match any of the defendants. Today's case review methods would substantially increase the probability of identifying cases with seemingly very few similarities."

In other words, because the police and the D.A. "were satisfied" with the confessions from the defendants they had no cause to search for links to any other cases. What is horribly clear today is that neither the police nor the district attorney was paying serious attention to any other cases, even as brutal rapes in the Central Park area continued.

Without saying a critical word about the police or the D.A.'s office-both equally culpable in these investigations-the Ryan Affirmation exposes a pattern of bureaucratic indifference by listing some of Reyes's known rapes followed by the notation "marked closed." These cases were not marked closed because they were solved-they were marked closed because the investigators decided not to pursue them in the summer of 1989 even as Reyes roamed the streets raping and murdering. (And these were not the only rapes disregarded by investigators. The woman who was raped and thrown down an elevator shaft in Harlem the same week as the Central Park assault was shamefully ignored.)

On June 11, 1989, Reyes raped, stabbed and tried to drown a 24-year-old woman in her apartment on 116th Street. On June 14 he raped and stabbed to death a pregnant woman in her apartment at 97th and Madison while her three children were locked in the next room. On July 19 he raped and robbed a 20-year-old woman in her apartment on 95th Street and Madison, also cutting her eyes. On July 27, 1989, he robbed and tried to rape a woman in the hallway of a building on 95th and Lexington but was stopped by neighbors. On August 5 he raped and robbed a 24-year-old woman in her apartment on 91st Street-and was captured by her neighbors. That is how his crime spree ended-by New Yorkers capturing him, not by police work or district attorney investigation.

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

City Journal


In The News:

For the best conservative, feel-good take on crime in New York, check out City Journal, published quarterly by the think-tank The Manhattan Institute. The Spring and Summer issues paint a sunny picture of New York's progression from the Dark Ages (pre-1995) to Triumph (the Present). The writers attribute our safe streets and safe prisons to essentially the same paradigm shift in management -- decentralizing, giving more opportunity and responsibility to local command, and providing detailed statistics on criminal activity to help local officials.

Whether you're reading for confirmation of your worldview or to find an infuriating strawman, City Journal is a valuable resource.

Jerome Sounds Off:

Steve Schwalb is one happy businessman. The CEO of Federal Prison Industries watched his company bring in $540 million in revenue last year. His workers, prisoners serving sentences in 94 federal prisons, earn 23 cents to $1.15 an hour making electronic parts, clothes, and furniture.

The future looks even better. The federal prison population is expected to reach 200,000 by the year 2006; Schwalb will employ 30,000 of these inmates. Mirroring the shifts that have transformed the low-wage job market on the outside, FPI workers have begun performing data entry and other service-oriented tasks. Now Congress has proposed that FPI be allowed to expand beyond government contracts to offer their services to private companies.

Supporters of the proposed bill, the Prison Industries Reform Act, say that jobs lost to overseas sweatshops can be snatched back by prison labor and that these jobs will in turn help lower high recidivism rates. But you can hear these politicians and their business backers rubbing their hands: a growing, cheap workforce -- behind bars! Even ignoring the irony of undercutting sweatshop wages, the supposed benefit of lowered recidivism is a crock. Will the "work experience" gained from a $1 an hour data-entry job go very far on the outside? And what happens when companies start to replace their workers (say, for instance, unionized workers making a decent salary with benefits) with inmate-power? At this rate, it's only a matter of time before someone suggests that inner city public school kids devote one period a day to stuffing envelopes.

Jerome Chou is a freelance writer. He works part-time interviewing recently released ex-offenders about their re-entry into society. 

Civilian Complaint Review Boards


THE LOWDOWN:

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

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

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

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

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

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

BEHIND THE SCENES:

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

Is there police brutality in your neighborhood?

White

Black

Latino

Other

Total

Yes

23.7%

44.6%

35.6%

32.7%

28.2%

No

66.2%

47.6%

57.0%

56.4%

62.1%

Don't Know

10.2%

7.8%

7.4%

10.9%

9.6%

Total Respondents

1662

231

149

101

1643

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

THE BOARD:

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

COMPLAINANTS:

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

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

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

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

 

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


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

Selling Paroles?

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

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

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

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

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

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

Seeking More Time

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

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

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

Declaring Another Rape

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

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

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

A New Report From Jogger's Medical Team

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

Increasing Numbers Of Rapes

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

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

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

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

Two Heinous Crimes Unresolved


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

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

SCHWARZ CAN NO LONGER PROCLAIM HIS INNOCENCE

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

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

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

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

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

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

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

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

IMPRISONED RAPIST-MURDERER ANNOUNCES HIS GUILT IN CENTRAL PARK RAPE

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

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

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

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

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

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

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

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

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

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

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



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