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“Who Should Investigate Police Abuse?”: When Local DA’s Investigate Local Police Officers, There Is An Inherent Conflict Of Interest

The national conversation about police abuse will shortly take a new turn. Following the failures of local grand juries to bring charges against the white police officers who killed Michael Brown in Ferguson, Missouri, and Eric Garner, in Staten Island, protesters around the country took to the streets. Then, after the murders of the New York police officers Rafael Ramos and Wenjian Liu in Brooklyn on December 21st, a fierce backlash against the anti-police protests began. The result is a sour standoff, with opposing sides united only in their sense of victimhood. Protesters shout “I can’t breathe,” and cops turn their backs on Mayor Bill de Blasio—but now what?

To date, one serious proposal for reform has emerged. On December 8th, Eric Schneiderman, the Attorney General of New York, proposed that Governor Andrew Cuomo name him, Schneiderman, as an independent special prosecutor to investigate and, if appropriate, prosecute police officers in any situation where they cause the death of a civilian. As Schneiderman noted in his letter to the governor, the proposal seeks to address a real problem. When local district attorneys investigate local police officers, there is an inherent conflict of interest. In virtually all usual circumstances, police and prosecutors are partners, working together to build cases against defendants. This is especially true in a place like Staten Island, where the elected district attorney, Dan Donovan, both works closely with the police and answers to many of them as his constituents. As Schneinderman noted, on the rare occasions when prosecutors investigate the police, even when all parties act with the best of intentions, “the question is whether there is public confidence that justice has been served, especially in cases where homicide or other serious charges against the accused officer are not pursued or are dismissed prior to a jury trial.” Cases, in other words, like those of the officers who killed Brown and Garner. (Cuomo has hedged in response to Schneiderman’s idea, saying that he wants to weigh a full package of reforms.)

Schneiderman’s proposal met with a fiercely negative response from an unexpected quarter. Kenneth Thompson, the newly elected district attorney in Brooklyn, blasted Schneiderman’s proposal as “unworkable” and an insult to the state’s sixty-two elected district attorneys. Thompson, a Democrat, is hardly a mouthpiece for his colleagues in law enforcement; he defeated an incumbent district attorney, in significant part, by criticizing the cozy relationship between police and prosecutors in the borough. In his objections to Schneiderman’s proposal, Thompson pointed to potential practical problems—saying that it would stretch the attorney general too thin, particularly if it came to include all accusations of police brutality, not just those that ended in death. But Thompson’s objections were also more profound. “As the duly elected district attorney of Brooklyn, I am more than able to thoroughly and fairly investigate any fatality of an unarmed civilian by a police officer,” Thompson said. Indeed, Thompson recently brought a police-brutality case against two officers, and is investigating the recent police-shooting death of an unarmed man in a housing project.

The conflict between Schneiderman and Thompson illustrates a paradox, even a contradiction, in the criminal-justice system. New York, like most states, has a regime of elected countywide prosecutors. The idea is that law enforcement should respond to the needs of the local community, and for the subjective needs of the community to be paramount. But the system also demands objectivity—an ideal of justice untainted by the special interests of the locals. This is the heart of the conflict over Schneiderman’s idea, and both sides can point to examples that prove their point. It is true that local prosecutors like Thompson have, on occasion, brought successful cases against local police officers. And outsiders, who are not subject to the usual checks and balances on prosecutors, can abuse their freedom. “When you start to talk about special prosecutors—do we really want another Ken Starr?” Frank Sedita, the Erie County District Attorney, asked in response to Schneiderman, referring to the federal independent counsel who led the investigation of President Bill Clinton. The risk, according to Sedita, is ending up with “somebody who is not accountable to the public and specifically not accountable to the citizens of that county.”

Schneiderman’s idea has considerable appeal; his judgment in the Eric Garner case would surely have had more credibility than the one rendered by Donovan. Still, special prosecutors are not necessarily good or bad. Like the locals they replace, they are only as good as the cases they bring, or refrain from bringing. That, ultimately, will rest on the good judgment of the individuals involved, and no one has yet figured out a way of putting the right person in place all the time.

 

By: Jeffrey Toobin, The New Yorker, December 30, 2014

January 5, 2015 Posted by | District Attorney's, Police Abuse, Police Brutality | , , , , , , , , | Leave a comment

“People Make Mistakes About Sex And Stuff Happens”: Will Dirty Pol Vito Fossella Replace Dirty Pol Michael Grimm?

Anthony Weiner sexted with scores of women, only getting caught when a photo of his crotch went viral, and still ran for mayor two years later. Eliot Spitzer spent more than $15,000 on high-price prostitutes, and after resigning his governorship in disgrace, ran for New York City comptroller five years later. Rep. Charlie Rangel was censured by the House of Representatives and was urged by the president of the United States to step aside, and he still ran and won re-election—three more times.

And now to this list of New York pols who refuse to go away, it may be possible to add another name: Vito Fossella.

The former Staten Island congressman was one of New York City’s most prominent Republicans, regularly winning re-election by double digits. He was often talked about as a future New York mayor.

But all of that came to an end in 2008, when the 43-year-old Fossella got a little too sloshed at a White House reception honoring the New York Giants Super Bowl victory and was arrested for driving under the influence in northern Virginia. The scandal could have been the kind that amounts to a mere hiccup in the baroque New York political scene, but it became a bit more serious when it was revealed that Fossella, a married father of three, had been cruising around the D.C. suburbs because he was off to see his mistress, with whom he had fathered a child—a fact that was revealed when Fossella called the woman to pick him up from his overnight stay in jail.

But now that Rep. Michael Grimm is joining the crowded club of New York politicians who have resigned in disgrace, is Fossella ready to join the nearly equally crowded club of lawmakers who have mounted ill-fated comeback attempts?

“Vito’s name has come around a couple of times. He is very beloved in the Staten Island community,” said Leticia Remauro, a former Staten Island GOP chairwoman and a political consultant. “He served the community well, but he clearly has to make a decision based on why he left.”

John Catsimatidis, a supermarket magnate who lost a bid for the Republican nomination in the 2013 mayor’s race, won Staten Island, a victory many attribute to the introductions Fossella made on the island. Before Grimm announced he was stepping down, Catsimatidis used his Sunday morning AM radio show to urge the congressman to give up the seat and suggested that he support Fossella.

“Vito is the most experienced. If he wants it, it is his for the taking,” Catsimatidis told The Daily Beast by phone from the Bahamas. As for Fossella’s baggage, Catsimatidis, a major donor to Republican causes, said: “Who doesn’t have baggage? People make mistakes about sex and stuff happens.”

Catsimatidis appeared to step back a bit from his comments over the weekend, however, saying he would commission a poll to find out who was the most viable Republican—Fossella, district attorney Dan Donovan, or Assemblywoman Nicole Malliotakis.

Donovan, who has come under withering criticism for his inability to win an indictment against a New York City police officer in the strangulation death of Eric Garner, a black Staten Island man selling loose cigarettes, announced Tuesday morning that he was “seriously considering the race.” Although Donovan remains a popular figure on Staten Island even after the Garner grand jury decision, many island political analysts said they doubted he had many ambitions beyond the DA’s office.

Guy Molinari, a former Staten Island borough president, pushed back against that view. “It is his dream [to go to Congress] and he is going to be running,” Molinari said. “He is entitled to it. The reading I have right now is that all of the elected officials, with the exception of Malliotakis, are lining up behind Donovan.”

When Fossella was first elected to Congress in 1997 at age 32, Molinari was described as his political godfather. In the intervening years, the two had a falling out, and the tribal divisions of Staten Island’s Republican Party split between a Molinari camp and one loyal to Fossella. Molinari was an enthusiastic backer of Grimm, but when Fossella loyalists in Staten Island’s GOP leadership endorsed Fossella in 2008 even though he said he would not run in light of his scandal, Molinari attacked his protégé in unusually personal terms.

“It’s going to be ugly, it’s going to be nasty, but he has to know that would come out in the course of a campaign. Everything he has done will be brought to light by me in this campaign,” Molinari said at the time, pledging a primary battle. “I have a difficult time believing that Fossella would put his own personal ambitions above his family. His family has been through enough, and I couldn’t believe that he would be willing to put them through all of that once again.”

Fossella declined to run again, but in the years since he has mused aloud about challenging Grimm. Now that Grimm is gone, the question is whether Fossella was merely tweaking Molinari or was serious about seeking a return to Congress.

“I think he had a genuine interest in that seat,” said one Fossella ally, who said the former congressman was unlikely to challenge Donovan if the district attorney decided to run. “It’s a great gig to be the DA, and I think Danny likes doing it. The likelihood as I see it is that Donovan stays where he is.”

Fossella did not respond to requests for comment for this article, but in a television interview Tuesday night, he gave a tepid denial, saying he was “not really” interested in running again and that “my hope is that the people of Staten Island and Brooklyn go to the polls and just choose the best person for all of us.”

These days the former congressman appears to have reconciled with his Staten Island family and has rebuilt his life working as a lobbyist for a firm owned by former U.S. Senator Al D’Amato. He appears frequently on television as a political commentator. If he were to run, he would have to overcome deep skepticism from Washington Republicans, who are not likely to want to replace one scandal-scarred Staten Island Republican with another scandal-scarred Staten Island Republican. The district, which also includes parts of Brooklyn, is by far the most Republican in New York City—Bill de Blasio failed to carry it even as he romped to victory in the 2013 mayor’s race—and should be a relatively easy Republican win in a special election, which conservative base voters are more likely to turn out for. But if Democrats lose this year, they think they can win the seat in 2016 riding Hillary Clinton’s coattails—something Republicans also sound keenly aware of, even if they have their own motives for discouraging a Fossella campaign.

“Under the circumstances, with the problems he has had, and in this atmosphere with the issues that are out there,” said Molinari, “I just don’t think Fossella runs.”

 

By:  David Freedlander, The Daily Beast, December 31, 2014

January 1, 2015 Posted by | Congress, Republicans, Staten Island NY | , , , , , , , | Leave a comment

“Justice Must Satisfy The Appearance Of Justice”: The System Must Counteract Prosecutors’ Natural Sympathies For Cops

“Justice must satisfy the appearance of justice,” Felix Frankfurter wrote, in a Supreme Court case 60 years ago.

That edict — a foundation of democracy — has not been observed in some recent high-profile cases in which grand juries have refused to indict police officers for killing unarmed African-Americans. The resulting injury is not just to criminal justice but to the legitimacy of the government itself.

As a former prosecutor let me put this as directly as possible: Blame the prosecutors, not the grand jurors. There is one reason that Daniel Pantaleo is not being charged in the death of Eric Garner. It’s because District Attorney Dan Donovan of Staten Island did not want him to be.

Why not? The cynical point of view is that Donovan was playing to his base. Staten Island is the whitest and most conservative borough in New York. It’s also home for many cops. Maybe Donovan figured he would take heat however the grand jury came out, but the people who would be protesting in the street in the event of no indictment did not include most of his electorate.

But there is a more benign explanation. Maybe Donovan just appreciates that cops have one of the most difficult jobs in the world, and so, he cuts them some slack. It’s a very human reaction.

I speak from whence I know. One reason I became a prosecutor is that I had a number of bad experiences with the police where they racially profiled or just generally disrespected me. I thought I could go in as an undercover brother and change the system from the inside. What happened instead is that the system changed me.

When you work with cops every day you definitely gain more respect for their difficult work. And you need them to help you make your cases (every prosecutor has experienced having a police officer catch an attitude, sometimes in the middle of a trial, and purposely ruin your case because they don’t like you).

And finally policing is like most other employment — a few people do most of the work. So prosecutors see the same cops over and over, and they bond with them. It’s not so much that they excuse egregious misconduct as that they cast a blind eye. Nothing irks a cop more than an elitist prosecutor treating him or her like “some suspect.”

So the problem stems from the culture of the prosecutor’s office, compounded by the fact that, like most lawyers, prosecutors are competitive and ambitious and the way you move ahead is to win your cases, and the way you win cases is get your star witnesses — the cops — to go the extra mile. All that makes it really tough to try to send one of them to prison — even when they have messed up big time, as I believe Pantaleo did when he placed Eric Garner in a banned chokehold.

In a democracy, no one should be above the law. It’s fine for citizens to profoundly respect the men and women who serve as law enforcement officers. But when those people break the law, they must be held accountable just like anyone else. The automatic appointment of special prosecutors in criminal investigations of police is the best way to avoid district attorneys’ natural biases and make sure that justice satisfies the appearance of justice.

 

By: Paul Butler, Former Prosecutor and a Professor at Georgetown University Law Center; The Opinion Pages, Room for Debate, The New York Times, December 4, 2014

 

December 5, 2014 Posted by | Criminal Justice System, Democracy, District Attorney's | , , , , , , , | Leave a comment

   

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