Cy Vance And The Half-Baked Cop Scheme

Shoring up his damaged reformist cred, New York County District Attorney Cyrus Vance, Jr., has decided to go to war with the New York Police Department over the creation of a searchable database for police misconduct. Does it get more wonderful than this?

The Manhattan district attorney’s office is locked in a battle with the New York Police Department over electronic access to disciplinary records of officers and investigative reports that prosecutors contend they need to catch bad arrests earlier in criminal proceedings.

The level of access to police records that prosecutors are seeking would fundamentally change the flow of information between the police and prosecutors in New York City, upending decades of practice and altering the traditional roles of each institution.

It’s not inaccurate to say that it would “fundamentally change” the flow, but it’s absurdly misleading. Police misconduct files have been denied defense lawyers, hiding behind § 50-a of the Civil Rights Law and requiring a Gissander motion, which is almost never granted and, even if it was, meant the defendant sits in jail for months as it pends. And then you get spit as a result. So the lure of Cy’s plan is obvious.

The promise of Brady/Giglio has long stymied the system. But even if Cy’s latest effort prevails, it emits the same stench for the defense as the discovery game.

Public defenders have long argued that the earlier prosecutors show evidence to the defense, including evidence about the credibility of police officers and witnesses, the easier it is to weed out bad cases and prevent wrongful prosecutions. Strong cases persuade defendants to plead guilty, while weak ones fall apart before the accused has spent a long time in jail, they contend.

Public defenders? Well sure, along with the rest of the defense bar, those lawyers the New York Times keeps forgetting exist and who lack the virtues of poverty, overwork and dearth of competence born of experience. But whatever.

Those records are needed “to make early assessments of witness credibility, explore weaknesses in a potential case and exonerate individuals who may have been mistakenly accused,” Mr. Vance’s general counsel, Carey R. Dunne, wrote in a letter to the police in May and BuzzFeed reported in June.

Notice what’s missing from Dunne’s statement? Who gets these records? Who makes the “early assessments.” See any mention of these records being provided the defense? This is the noblesse oblige of the prosecution, as we can certainly trust prosecutors to decide their own witnesses’ credibility and let us know whether they have a strong case or bupkis.

For years, Manhattan prosecutors have been selling a sham that they have “fixed” discovery by providing a Voluntary Disclosure Form to the defense. It’s usually crap, though occasionally a prosecutor will take it seriously and provide sufficient information to get at least a minimal grasp of the case against a defendant. Yet, the lie about discovery remains elusive.

And Mr. Vance, whose Manhattan office was once notorious among defense lawyers for waiting until the last moment to disclose evidence, has begun handing it over at arraignment in nonviolent cases when there are no civilian witnesses.

In New York, discovery is a creature of statute, and the law is so ridiculously limited in what must be disclosed as to be shocking to civil lawyers, who can’t believe people’s lives are at risk with almost no information at all. Criminal defense lawyers chuckle, not because it’s funny but because no one seems to appreciate how blind we are, and how initiatives like VDFs are crap.

So will this war between Vance and the NYPD, this “fundamental change,” mean anything in real life? Please, get real. While it may provide the district attorney with access, they won’t be sharing their password with the defense. They won’t be telling us about cops lying on the stand before giving us their “take it or leave it” plea offer. We will be flying just as blind should Vance get his database as we do now, and did before they came up with VDFs.

People shouldn’t sit in jail for years on bad cases, including the inexplicably outrageous cases where they’ve been misidentified, but nobody bothered to notice for the first couple years of incarceration because the baby prosecutors were too busy to look.

And even if they gave a damn, which most don’t, there is nothing about this scheme that suggests they won’t extract the same plea long before anybody tells the defense that the cop might be dirty. Can’t we just trust the prosecutor to toss the case based upon his assessment?

“Whether an officer was disciplined five years ago for making a bad stop has nothing to do with whether a defendant today murdered his mother,” Mr. Byrne said. “It may bear on whether people will believe that officer at trial, but it doesn’t bear on the issue of whether the defendant murdered his mother.”

Lawrence Byrne, the deputy police commissioner for legal affairs, happens to be right, though his point has no bearing on whether there should be a database. And even if the defense was informed of a cop’s bad conduct years ago, it’s no substitute for the evidence of the murder. Sure, if a trial follows, it provides fodder for cross, but it isn’t going to change the gun in the defendant’s hands and the half dozen eyewitnesses that the defense knows nothing about.

So is Cy Vance’s demand for a searchable database of police misconduct a bad thing? No, of course not. It’s a good thing. But what it’s not is a substitute for serious, timely broad-based discovery, with preclusive effect such that the prosecution can’t show up at trial and say, “Oops, we forget to turn over these 12,000 pages of evidence,” before the defense is forced to take the plea or lose it, or spend most of his youth in Rikers.

In fact, if Cy’s people would just turn over the police reports, which aren’t part of discovery in New York, at arraignment, that would be a good start too. And since they already have them, and could turn them over any time they wanted rather than hold them until trial as Rosario material, it would go a lot farther than this new war.

But then, it wouldn’t bag him a New York Times story about what a woke reformed prosecutor he is, and so what would be the point except to be fair to the defense? And everyone knows that’s not how the game is played.

16 thoughts on “Cy Vance And The Half-Baked Cop Scheme

  1. Skink

    A very 1970s process you got there. You’re right, it is shocking to this civil trial lawyer. Hell, we get personnel files and reports by simple request–it don’t take discovery.

    1. SHG Post author

      I’ve never met a civil lawyer who isn’t shocked by this. You guys split a gut over not getting the name of a tangential witness’ third cousin’s postman. We’re lucky to get an autopsy report before trial. You guys are such trial wussies.

      1. Skink

        Yeah, but they always want to wrestle over the autopsy pictures. Them things is fun on planes.

        Next seat: “Is that a person?”
        Me: “Nope–it’s just a brain. That green stuff is some kinda abscess.”

  2. B. McLeod

    A requirement to make the disclosures early is what has always been missing from Brady/Giglio. Still (and however things actually work where rubber meets road) it is the prosecutor’s ethical responsibility to make the disclosures if the case goes to trial, and it is the prosecutor’s ethical responsibility to ferret out the information needed to make the disclosure. So, I am inclined to agree that their demand for the access is justified, whatever may or may not actually come of it. As to the impact, I don’t see how it could be harmful. It will at least further the possibility that an ethical prosecutor might make an early assessment and drop charges in some number of cases due to Brady/Giglio problems with necessary witnesses.

    1. SHG Post author

      Whether we get Brady/Giglio at trial is itself a problem. Whether we get it in advance of the plea offer at arraignment is what’s up for sale here. You buying?

      1. B. McLeod

        Well, as you note in the write-up, they really aren’t saying they intend to give early access to the defense. So I would not expect that. Part of what the prosecutor gets out of early Brady/Giglio analysis is the ability to dismiss without telling the defendant why and without making the disclosure. The state has its own tactical considerations in play here, and I expect a large part of their real motivation is wanting to be able to pick their battles in a whole range of cases where they would need a problem officer to testify. If they have well-managed electronic data, they can dismiss cases of lesser import to avoid showing their hand. Hence, I expect they will actually use this access to continue gaming the system on a somewhat adjusted basis, but that some defendants will benefit.

        1. SHG Post author

          But expecting ADA to dismiss because there was an old (likely dismissed) complaint about a cop is a bit fantastical if they believe the deft is guilty and know the deft will cop the plea in the meantime. That’s the point, without defense counsel knowing how to advise the deft, the ADA is still shooting fish in a barrel. In other words, they could, but why would they?

  3. Tom

    In the uncivilized State of Texas, we have the Michael Morton Act, a discovery statute passed after Morton spent about 25 years in prison for killing his wife and the state hid exculpatory evidence. Now, all we have to do is ask and we get just about everything in the DA’s file including things like witness statements, offense reports, lab results, videos and tons of other stuff. I routinely file a request the day I get a new case.
    As for cop discipline, we can’t get police department records but we can from the city civil service department if there is a sustained complaint. Typically, a cop gets suspended for doing something AND lying to his sergeant about it.
    Maybe you should do what we do in Texas.

    1. SHG Post author

      There are annual attempts at discovery reform. There are annual failures. On the bright side, we don’t execute people and have Brooklyn barbecue.

      1. Tom

        Brooklyn barbecue? Texas Monthly magazine every couple of years publishes the top 50 barbecue places in Texas which means, of course, the top 50 in the world. And, TM has a barbecue editor. I’d love to have that job.

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