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The largest organization of public defenders in the country is building a “cop accountability” database, aimed at helping defense attorneys question the credibility of police officers in court. The database was created by the Legal Aid Society, a New York–based nonprofit that represents an average of 230,000 people per year with a staff of more than 650 lawyers. The database already contains information about accusations of wrongdoing against some 3,000 NYPD officers, and is being used regularly by Legal Aid lawyers. The ambition behind the project is to create a clearinghouse for records of police misconduct—something the NYPD itself does not make public—and to share it with defense lawyers all over the city, including those who do not work for Legal Aid.
Take someone like Detective Sekou Bourne, for instance, who is currently being prosecuted in the NYPD’s administrative court for allegedly frisking a woman improperly in East New York and unlawfully entering her home in April 2013 after concluding, mistakenly, that she had crack cocaine in her hand. According to Justine Luongo, the attorney-in-charge of the Legal Aid Society’s criminal practice, a search for Bourne’s name in the Legal Aid database brings up reports on this incident, along with records of seven civil rights lawsuits that have been filed against him. The fact that all of those cases ended in settlements, Luongo said, could be useful information for defense attorneys next time prosecutors try to build a case against someone based on Bourne’s testimony. (A call to Bourne’s attorney was not returned.)
Cynthia Conti-Cook, a former civil rights lawyer, joined the Legal Aid Society last spring with the idea for the database, officially known as the Cop Accountability Program, already in mind. The reason she wanted to build it, she said, is that typically, when a criminal case begins, there’s a “big red arrow that says ‘criminal’ pointing to the defendant” and not much a defense lawyer can say other than “my client denies the charges.” With the database, a lawyer can quickly discover records of past misconduct by the accusing officer—if they exist—and with that information in hand, can “start shifting that red arrow toward the police officer, by showing that they’ve also been engaged in activity that deteriorates their credibility.”
“It takes the judge’s attention away from what your client did wrong to get here, and puts more of a burden on the police officer to prove that your client actually did something,” Conti-Cook said. That matters, she added, because “more and more, in this broken-windows climate, the main and sometimes only witness in a case will be a police officer.”
According to Luongo, lawyers at Legal Aid are encouraged to be comprehensive in uploading information to the system, which means including complaints that ended up being dismissed or that could not be substantiated, and making note of those outcomes. It’s up to the lawyers who use the database to determine whether and how to present the information they find in the database in court.
The contents of the Legal Aid database have been harvested from a variety of sources, including documents known as Brady letters that are submitted by prosecutors before trial as part of their obligation to disclose exculpatory material to the defense. Prosecutors usually submit Brady letters at the “eleventh hour,” said Conti-Cook, meaning right before trial is set to start, and often defense attorneys put them in their file, maybe use them once during the proceedings, and then never think about them again. The database, Conti-Cook said, is about “taking that institutional knowledge and figuring out a systematic way of sharing it with everyone.”
Other sources of information include civil lawsuits filed against the city, criminal trials in which a police witness was deemed not credible by a judge, and news reports about police wrongdoing. Information also comes from grievances that New Yorkers have filed against individual officers with the Civilian Complaint Review Board, a city agency that investigates and prosecutes police misconduct. Once a week, interns from the Legal Aid Society are dispatched to take notes on public hearings at the CCRB, then incorporate any valuable tidbits they hear into the database.Legal Aid would like to see the database improved through technology. Conti-Cook said she has approached computer scientists at New York University about designing a program that would crawl an online database of federal court cases and automatically pick out ones in which police officers are being accused of wrongdoing. Luongo said there are plans to make an app that defense lawyers can look at on their mobile devices, which would allow them to peek at the database in arraignment court, right after they get assigned a new client. Plans are also under way for an email alert system, which would automatically send messages to lawyers after they’ve picked up a case with a police witness who has a file in the database.
Lawyers at other public defense organizations said that they’re aware of Legal Aid’s project and that they look forward to being able to use it. “It’s a terrific idea whose time has come. Police accountability is a persistent and pressing problem in public defense,” said Susannah Karlsson, a lawyer at Brooklyn Defender Services, another firm that provides free legal representation to people who can’t afford it. “If there are connections to be made between misconduct in one case and misconduct in another case, we should be able to use technology, as Legal Aid is beginning to do, to connect those dots.”
Making those connections has special value in New York State, where a 1976 law that shields police officers from public scrutiny has traditionally frustrated defense attorneys’ efforts to cast doubt on the credibility of cops with histories of misconduct. A provision in the 1976 law known as 50-A says that in order to substantiate a subpoena request for police officer personnel records, defense attorneys have to know in advance, and be able to demonstrate with a “clear showing of facts,” that there’s probably something in the officer’s past that is relevant to their client’s case. By providing lawyers easy access to potentially relevant details about an officer’s background, the Legal Aid database offers a way out of that Catch-22.
The database could potentially have consequences beyond individual cases. Joanna Schwartz, an assistant professor at UCLA School of Law who studies the way in which police department policy is shaped by the lawsuits people file against cops, said it could eventually have an effect on how misconduct is handled internally by the NYPD.
“It might create external pressure on police agencies to better police their own,” Schwartz said. “Because if there’s a bad apple officer out there who has had multiple incidents of lying on the stand, or unconstitutionally searching someone, that officer’s ability to assist in a prosecution is going to be compromised. … Their ability to help prosecute cases will be constrained by their prior behavior in a way it hasn’t been previously.”
The NYPD did not respond to a request for comment. But a spokesman for the Patrolmen’s Benevolent Association, the largest police union in New York, passed on a statement from union president Pat Lynch, saying that “compiling a list of police officers who are alleged to be ‘bad’ based upon newspapers stories, quick-buck lawsuits, and baseless complaints—many of which are lodged in revenge by criminals seeking to punish an arresting officer—does nothing more than soil the reputation of the men and women who do the difficult and dangerous job of keeping this city and its citizens safe.” The statement, which Lynch first issued last fall when the New York Daily News asked him about the Legal Aid project, went on: “Where is the database of the thousands of police interactions each day that save lives, take guns and drugs off the streets, prevent terrorist acts and demonstrate the concern and caring of our officers?”
Why focus on the bad things our police officers do, in other words, when they do so much good? The answer is that the powers that enable police officers to do good also enable them to do great harm. Someone should be keeping careful track of when that happens, and in a way that’s accessible—if not to the public, then to the people tasked with representing its most vulnerable members. Defense lawyers, by creating this resource themselves and sharing their institutional knowledge with one other, can make the criminal justice system more transparent, more fair, and less forgiving of people who abuse their power.