The New York Times editorial calls for an end to the secrecy laws that keep police misconduct, even crimes, hidden from view.
The deaths of unarmed civilians like Eric Garner in New York City and Michael Brown in Ferguson, Mo., led to demands for greater transparency in the workings of police forces all over the country. The need for more openness is especially pressing in New York, where a uniquely strict disclosure law has shielded from public view the records of individual officers, even those who have committed crimes.
In many states, including New York, it can be difficult for the public to even learn the names of officers involved in fatal shootings.
This is nothing new to criminal defense lawyers, who have been stymied in their efforts to obtain information about the police officers who take the stand to testify against their clients.
Under Section 50-a, an officer’s personnel record cannot be publicly released or cited in court without judicial approval, protections that have been extended to correction officers and professional firefighters. Meanwhile, the definition of “personnel record” has grown so broad that the courts have interpreted it to cover virtually any information that could be brought to bear in decisions on promotion or retention.
And judicial approval for the release happens pretty much, well, never. The problem is circular, that without knowing what it is you need to know, you can’t fashion a well-conceived argument for why it’s necessary and relevant.
The secrecy of police personnel records was the subject of a report last year by the New York State Committee on Open Government.
The report, to Gov. Andrew Cuomo and the State Legislature, noted that New Yorkers had “far less access to information about the activities of police departments than virtually any other public agency,” even though people encounter police officers in a more direct way than they do other public employees. Robert Freeman, executive director of the committee, told The Times recently that 50-a had essentially codified “the blue wall of silence,” making it possible for the police to hide an officer’s conduct from the public.
The editorial neglects to explain the arguments behind 50-a, about police officer’s personal privacy rights, about abusing information obtained as so much of it is found unsubstantiated, about discouraging frivolous complaints and allegations against police officers in order to create the appearance of a record of misconduct to smear a good cop.
While the outsider will wave away these concerns as being inconsequential in light of the more important societal interest in only giving guns to cops who deserve them, the police take this very seriously. And their union money and endorsement gets politicians elected.
But what’s striking about the editorial is that it does not call for the elimination of 50-a because criminal defendants have a constitutional right to obtain sufficient information to challenge a dishonest cop’s testimony. The cops have a defendant’s rap sheet, and know how to use it to their advantage, while the defense knows essentially nothing about the cop’s prior criminal history.
Instead, the New York Times speaks to the public’s right to know.
In condemning 50-a, the report said that no other state had enacted such a law, noting that its effect has been “to make the public employees who have often the greatest power over the lives of New York’s residents the least accountable to the public.”
Except cops aren’t accountable to the public. They are not elected. They aren’t even political appointees. They are men and women hired to do a job until their pension vests. If the public was able to access the personnel records of individual officers, what exactly would they do with that information?
Sure, when a cop hit the front pages with a killing, the public would then learn that the cop had seven prior excessive force complaints, and lost a grand total of three vacation days as a result. But what does this mean to the public? It’s not as if this information prevented a killing, but merely gave the public a bit of salacious news with which to paint the villain in the story.
The same happens with the other villain, according to which team you’re on, when they announce that he had 24 arrests (which tells you nothing about convictions, or whether the guy took a plea to get home for dinner rather than spend the next year sitting on the rock awaiting a trial where he had a three percent chance of acquittal).
Is this about feeding the public’s voyeuristic tendencies after the fact, after the damage is done, so we know who to hate most? Much as people who pay attention to these things want to believe their input matters, there really isn’t a whole lot to contribute to this mix when you’re a member of the public on a cop by cop basis.
While it’s true that the public has a right to know what bad acts are being committed by people who suck at the public teet, and would be far more aware of how their self-proclaimed saviors are doing if they learned of the bad stuff as well as the good, it would largely result in the same inertia that news stories now produce. Another bad cop? Pass the peas.
On the other hand, if police misconduct information was made available to the defense, it would have a direct and concrete purpose, and would be put to specific use. The net result is that cops who were so tainted by their own lies and misconduct would become useless as they couldn’t testify. And if he can’t testify, then his arrest is worthless. This creates an incentive from the law enforcement side to clean up their act, lest their deceit and misconduct get in the way of their pension vesting.
It’s not that the public doesn’t deserve to know about bad cops. It does. But criminal defense lawyers can use this information effectively where the public cannot. Yes, repeal this law. Let us make it count.
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Scott Henson wrote about this yesterday on his blog Grits For Breakfast. The title of the article is Trust US, We’re the Government: Most DA’s won’t release lists of non-credible police officers. Seems this is a nation wide issue which is coming to the forefront in several jurisdictions.
The Chron article he references was good, but I don’t link to the Chron anymore as it’s behind a paywall. If I can’t read it, I won’t link to it. As for Grit’s post, I’m no more interested in his conclusory legal views than I am in the significance of a fringe on a flag. If I was, I would have linked to it.
Given the number of cops who are publicly known to have done Very Bad Things and who have still retained their jobs (presumably managing to convince future judges in future cases that they have Learned Their Lessons, even without benefit of contemplative prison time, and are now completely trustworthy), I’m not convinced that the mere use of personnel information in criminal cases will itself directly move the needle on bad cop behavior.
> Except cops aren’t accountable to the public. They are not elected.
But in places like Texas, the judges and prosecutors are, and putting the occasional innocent in prison only loses a few votes from his close friends and family, but the small chance that they might let an alleged rapist go free to commit further heinous crimes weighs heavily on their thoughts of reelection. Much better to pretend the cop is above reproach.
And the juries are even more cautions. Some of the jurors even have daughters! Why won’t that damned defense attorney just shut up so we can vote to get this lowlife rapist off the street and protect the community??!?
So, in the specific instances where your client is facing a lying cop who was caught lying before, you’re right that the information could directly do you a world of good. But in the more general case, I think a lot of good will come in the courtroom if we can just inoculate the public (voters and jurors) that a stastically relevant number of police officers have been known to be less than truthful on multiple occasions.
If I had a dime for every time someone wrote, “but here in Texas,” as if anybody anywhere else gave a shit. That said, is that why Houston Judge Ruben Guerrero won re-election? Get real. Voters vote their own personal self-interest or party. Aside from that, they may “tsk, tsk” on occasion, but that’s as far as it goes.
The reason people bring up “here in Texas” is typically to raise contrary examples and evidence to cherry picked arguments, or to focus on policy where a litigator’s myopic view from the plea mill leaves them bereft of solutions besides largely non-existent legal remedies. As the Washington Generals of the legal world – paid losers and punching bags – criminal defense lawyers largely misapprehend public policy debates and as a general rule have little productive to contribute to them, as evidenced by your facile views on transparency. E.g., if the 50a material is made public, defense lawyers would have access to it; those goals are not mutually exclusive and there are ancillary benefits to transparency that you clearly do not understand and may have never considered, judging from this commentary.
Well then.
So Texas will execute Rodney Reed, who is likely innocent, and you’ve got your head so deep up your ass you think the rest of us want to be like Texas and share in the great glory of murdering innocent people?
You’re doing a great job down there. Keep it up, pal. You still have plenty of people left to execute.
Don’t be so easily goaded. Name a state that’s perfect?
Texas.
Come on, at least make the questions challenging…. lol
Here in Texas… we have a mixed election record for judges and DAs. In the last primary (GOP primary is the real election in my county) I voted to get rid of a judge who worked about 20 hours a week and had not handled a civil case in years because of backlogs of criminal and family (i.e., juvie) cases. We were paying other districts to hold our trials lest some defendants go free under speedy trial rules. He won with over 2/3rds of the vote. He is getting paid for full time work, of course. Sure, Texans will throw a DA who fought to keep an innocent man in prison out of office, but gross neglect of duty judges get re-elected with ease.
Most people will never care about law enforcement misconduct, neglect, perjury, etc. until it affects them or someone they know. Then, they are shocked! Shocked and outraged, I tell you!
Sad and true. Grits tends to have some peculiar views, especially when it comes to Texas, lawyers and himself.
He’s not peculiar. He’s an asshole whose only purpose in coming here is to remind us that he’s an asshole. When was the last time Grits left a comment that contribted anything useful?
He can’t help it. He lashes out in pain and anger because he’ll never get the respect of lawyers he so desperately craves.
> Voters vote their own personal self-interest or party.
Unfortunately, those voters are also the same ones that wind up in the jury box. Like you, I don’t think transparency is a panacea. Like you, I think it’s a good thing nonetheless. But those voters who think judge Ruben is doing a great job — a lot of them also think the cops are doing an awesome job.
It’s morally awkward to be in favor of smearing defendants if and only if the defendant’s a cop.
I’m confused what that has to do with what I wrote, but then I stay confused most of the time, so that’s all good.
I think you’re guilty of a bit of tunnel vision here. You don’t see the public having the same use for this information as CDL’s, so they must not have any use for it, right? It’s just voyeurism.
But this is a republic. The police work for those we elect, and are (supposed to be, at least) accountable to those we elect. Without information on how poorly our elected officials are performing their oversight functions with respect to our civil servants, the public has no ability to weigh in on the matter.
For the vast majority of people, there’s no context to these stories. So it becomes just issues of rogue cops and isolated incidents. There’s a desire to trust those entrusted, and without any evidence to suggest that trust is undeserved, it’s not usually going to be questioned, let alone become an issue during elections.
Remind me again how rough it is for incumbent politicians to get re-elected after they’ve performed horribly?
It’s not hard, by the numbers anyway. These kinds of secrecy laws and regulations are part of why that is so.
You could probably gather together all the people in the country who know there are more than 60,000 paramilitary raids conducted by law enforcement every year together in a middling-sized ballroom. Not many more are aware that the government can seize property without ever charging someone with a crime, and on the off-chance something gets publicized such that the general public becomes distantly aware of these facts, it’s a “one-off” or “isolated incident” that can’t or shouldn’t be connected with their politicians.
Ignorance is bliss when you’re looking to take advantage of the suckers.
I would like to think like you do, that if they only knew they would feel differently. I agree with you that they should. But they only care when it touches their lives.
There’s a lot of places in this country you can’t get Grits. Whether that’s good or bad, I’ll leave to you to decide.