In the grand scheme of piss-poor analogies (edit: and the beloved metaphor), leveling the playing field is a winner. First, it’s not a game. Second, the field is so grossly unlevel that no matter what the defense does, it can’t touch the advantage the prosecution enjoys. Forget all the platitudes that people use about the legal system; it’s meant to be unfair, to favor the prosecution. Anyone who doesn’t realize this doesn’t “get” the system.
But there was a private investigator who found a crack in the system. The crack was an NYPD sergeant, Ronald Buell, who wanted to earn some extra money. Cops like to earn extra money, and this was a particularly easy way to do so, and far less nefarious than other ways, like copping spare dope from dealers or pocketing the piles of cash found in stash houses. Buell sold access to his police computer.
To many defense lawyers, Joseph P. Dwyer, a retired New York police officer who became a private eye, was guided by justice — a highly sought investigator who uncovered key information to help their clients.
But that came at a price: Mr. Dwyer had been paying a police sergeant for information from a restricted law enforcement database, prosecutors charged. And in a sentencing memo this week, the government said Mr. Dwyer’s motivation had been “a desire to enrich himself,” citing his billings of about $500,000 from 2011 to 2014 from public funds used for indigent defense.
A lot of ex-cops become private investigators after they retire. The assumption is their mad skillz on the job will somehow translate into their being brilliant investigators. Most suck. While they don’t realize it, most of what they were able to accomplish as cops had nothing to do with their abilities, but with the weight of their shield. People talked to them because they were afraid not to. It wasn’t that they were good at the job, but they were on the job.
Yet, one of the great assets of law enforcement is access to information that the rest of us are denied. Dwyer was smart enough to realize this, and took advantage of Buell’s desire to make some side money.
Before going further, it behooves me to point out that the money earned from public funds for indigent defense is a red herring, the equivalent of the irrelevant rap sheet or the max sentence available for a crime. This is the sort of amount the government loves to throw out to the court, but doesn’t bear on the fact that it wasn’t all spent on Buell, but on legitimate investigative services like interviewing witnesses, and, to the extent it was spent on Buell, may well have been the best use of indigent defense funds ever. Aside from being illegal, of course.
Standing and choking back tears, Mr. Dwyer apologized and said he took “full responsibility” for his actions. He said that in investigating cases, some involving capital offenses, he became “too engaged and overwhelmed in trying to provide a zealous defense” for his clients.
In paying for restricted information, he said, he used “poor judgment” and made “a terrible mistake.”
But, he said, money had not been his objective. There was never an “ulterior motive,” he said. He had worked “proudly” for defense lawyers, he said, and was “devastated” to read the government’s sentencing memo with the enrichment allegation.
Full disclosure: I used Dwyer once on a case. He sucked and I fired him. It didn’t involve access to a restricted police database, but smart and diligent legwork. He failed miserably. I say this only to note that I am not a fan of Dwyer’s, did not write a letter on his behalf, and think his claim of pride and zeal is total horseshit. He was not my favorite investigator.
But the crime for which he stood before SDNY Judge Alison J. Nathan for sentence raises a question that goes beyond Dwyer.
As prosecutors described the scheme, Mr. Dwyer relied on the sergeant to gain access to a law enforcement database at least 15 times from 2011 to 2013 to obtain personal information about potential witnesses and other people associated with 11 criminal prosecutions in which Mr. Dwyer had been retained as a defense investigator.
The cops have access to the information needed to prosecute people. They know where to find the witnesses. They know what nasty secrets lurk in the witnesses’ backgrounds. They know what the witnesses will say, whether they will cooperate, where their head is at. The defense knows squat.
The defense operates blind, not knowing who the witnesses are so that they can be interviewed. We don’t know if they saw the crime or not, saw the perp or not, are being coerced into giving testimony, manipulated into giving the “right” testimony, are willing to say any words a cop puts in their mouth, or not. Why? Why does the prosecution have access to this critical information while the defense gets ambushed?
There was no allegation that Dwyer used this information to threaten witnesses, or to suborn perjury. There was no claim that the information obtained was employed to obstruct justice. What he did was gain access to information that the police, the prosecution, enjoyed and the defense was denied.
It was a crime to pay off Buell to gain access to a database that he was not lawfully allowed to access. But that it’s a crime doesn’t address why it’s a crime. In other jurisdictions, the defense is given this information about prosecution witnesses. In other jurisdictions, the defense gets to depose witnesses before trial.
In New York state courts, discovery is crap, barely a routine form. If you’re lucky, the information provided, minimal though it may be, is accurate. If not, suck it up. When it’s corrected the morning of trial, the judge will shrug and reply to your outraged motion to dismiss, “you have the right information now, counselor, and no doubt a lawyer of your great skill will be fully capable of making good use of it. Motion denied.”
So Dwyer bought off a cop making side money and gave the lawyer half a chance to figure out the case against which it was supposed to defend. And that’s a crime.
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Interestingly, the police officer found to have committed no crime by using his restricted database access to hunt women for his gynophagic (i.e., “cannibal cop”) fantasies was also in New York. Obviously, some uses trouble the authorities and the system much more than others.
That seems to be a problem that plagues the NYPD, as well as a few others.
I suppose in a sense, they can make a distinction based on Valle having not actually provided direct access to information to any third party. However, it does seem likely that in describing his detailed plans to kidnap, torture, rape, murder and cannibalize over 100 specific women, he probably disclosed some protected database information to the entire Internet. In any event, when one looks at the possible harms at issue, providing unauthorized assistance to defense counsel would seem (at least to me) to be of lesser concern than using database information to plan over 100 abductions. Especially given that Valle’s uniform, squad car and police equipment would have enabled him to carry those plans out in public settings without witnesses to the abductions thinking anything of it. (This in a jurisdiction that generally doesn’t allow citizens to carry guns, because THAT would be too dangerous).
How much do you think it woukd cost to get a sergeant in Chicago to hook me up with that there predictive computer model, Strategic Subject List, of theirs?
P.S. Speaking of discovery, I never knew New York was so special in that department. But now that I know that not all duscovery crap is equall across jurisdictions just what are we talking about here, baloney crap, bunk crap, bunkum crap, claptrap crap, driveling crap, hogwash crap, idiocy crap, ludicrous crap, poppycock crap, ridiculous crap, rigmarole crap, tomfoolery crap, or twaddling crap?
You would have to check the Chicago police price list. It’s not online, but I know a PI who can get it for you. For a fee.
Think about it, Barleycorn — if they haven’t already gotten in touch with you, their predictive model is useless.
It was mentioned that Joseph P. Dwyer had a short lived career as a NYPD officer due to an injury which occurred during an arrest…one would assume Mr. Dwyer receives disability benefits from NYCERS and possibly Social Security…and at the same time is able to work as a Private Investigator and has billed the government for $500,000 from 2011 until 2014 for work done for indigent defense and also during that same period of time he paid a NYPD officer $9000 to obtain information from a restricted US government database for his (Dwyer’s) use for his Private Investigator business…What injury did Mr. Dwyer have that disabled him from performing his duties as a NYPD officer and yet he is able to work as a Private Investigator making a lot more money than I am sure a NYPD officer makes…and he collects a disability check…The overall big picture of Mr. Dwyer appears to be a less than honest and trustworthy person…but I guess that’s not a crime to be dishonest and not trustworthy…he paids Mr. Buell 1.8% of what he billed the government (9000/500,000) for information which probably made Mr. Dwyer appear like a really good investigator…Mr. Buell put his reputation on the line and commits a real crime accessing a restricted database and lying about it for $9000 (~$500-$600 per month…Mr. Dwyer potentially exposes witnesses who are supposed to be anonymous…and he gets no jail time…Judge Nathan gives 5 years probation…ignores the prosecution’s legitimate claims of the potential danger he put witnesses in…not one or 2 times but 15 times…most criminal behavior occurs at least 8 times before someone gets caught Mr. Dwyer had a good run of 15 times and made $500,000 at the same time…I won’t discuss Mr. Buell…but how many other persons did he access the restricted database for?…
Aside from some of your assumptions being glaringly confused (the $500k wasn’t all about Buell), yeah, Dwyer was a mutt of a human being. But there is nothing to suggest that probation wasn’t the right sentence. The ability to manufacture imaginary possibilities of harm to witnesses doesn’t make it real.
It is very possible he retired on disability. However, it is probable that he does not in fact have to meet the physical and other job requirements of a police officer in his work as a private investigator. Note in particular that private investigators normally are not expected to perform rescues, effect arrests or physically pursue suspects. It is conceivable that a person who is wheelchair-bound could function quite adequately as a private investigator. This is important, because many (if not most) police and fire disability plans only require that the person be disabled from performing the job functions of the position held on date of disability.
I’m impressed with your patience.
If Brady is involved, why doesn’t the defense attorney have automatic access to the same database the DA can access? (Obviously the defense would only have access to records about their own clients.)
That’s got nothing to do with what Brady is about.
Doesn’t “Brady” say that the prosecution must turn over all relevant records to the defense? If that’s the case, they should both be working from the same database.
No. Brady is an affirmative duty to provide exculpatory or impeachment material to the defense. It has nothing to do with the defense having access to a database. The duty is for the prosecution to provide the material to the defense.
Right, so my thinking goes something like this:
1.) The prosecution doesn’t always know which material is “exculpatory or impeachment material.”
2.) Only material which is preserved in the database (or references to physical evidence) would be usable at trial by either side. Both the prosecution and defense have read and write access to the same database.
3.) Brady is thus met, (plus probably a number of other issues as well.)
Perhaps a fantasy, but easily doable with ordinary programming techniques anytime in the last 20 years.
Not so much a fantasy as nothing whatsoever to do with the law, as I told you in the first place. I’m not blaming for not getting how Brady works, but at this point, take it to reddit if you want to discuss it further.