Military and Police

Arrested Protesters Argue Against NYPD Attorneys Prosecuting Their Cases

“The NYPD claims that in recent years it has paid out approximately $840 million in ‘false arrest’ claims alone.”

A recent Fox News article reported rumblings and protests about NYPD attorneys prosecuting cases brought to the courts stemming from protester arrests made by NYPD cops. I can see why that would garner scrutiny from skeptics and curious minds alike. I can also imagine the mindset of a defendant, in court, seeing the cop who arrested her along with a police lawyer trying the case. The Sixth Amendment “right to a fair trial” guarantee may get contentious and engender claims of bias.

That is how Arminta Jeffryes, a 23-year-old former bank teller, feels anyway. As a self-professed Black Lives Matter (BLM) activist and chronic demonstrator, she was arrested by NYC cops in 2016 and charged with “jaywalking” during protests against police shootings.

According to the New York Law Journal, Jeffryes made no bones about her sentiments toward cops, saying, “Police departments are already killing us. Now they’re going to prosecute us as well.” Jeffryes also proclaimed her innocence and sought relief in the form of a dismissal from the low-level court in NYC. To her dismay, a NYPD lawyer presided as prosecutor over her criminal case. Her lawyer claims the NYC police attorney refused to dismiss the case unless Jeffryes admitted the arrest was legitimate. She denounced the suggestion. Now, the case is destined for trial in the fall of 2017, and I suspect some case precedence will evolve.

That begs the question: Why is the NYPD legal team prosecuting cases?

“Their interest is not in doing justice. It’s in cutting off false-arrest lawsuits. There is an inherent conflict of interest,” claims Martin Stolar, an attorney representing Ms. Jeffryes.

The practices may elevate “implicit bias” accusations and actually bolster allegations of law enforcement bias echoed by the likes of Hillary Clinton and other outspoken anti-police enthusiasts.

Like Ms. Jeffryes, some feel lawyers employed by the NYPD to handle its own cases in the courts smacks of conflict of interest and hints at Sixth Amendment violations regarding the right to a fair trial. Ultimately, it boils down to NYPD attorneys maintaining objectivity, viewing cases from one side only, “including some against people arrested while protesting police brutality.” Since the Manhattan district attorney employs close to 600 prosecutors, why is that even necessary? How do judges feel about it?

“We do it because there have to be consequences for recidivists that intentionally engage in conduct that receives (the) summonses,” said NYPD legal bureau head Lawrence Byrne, also citing the practice as both ethical and legal. To support that contention, in the fall of 2016, the criminal courts ruled that NYPD lawyers prosecuting cases involving criminal summonses had “no impermissible conflict of interest.”

Further, many of the low-level infractions going to court and getting summarily dismissed because the district attorneys admit they can’t be bothered with such trivial cases default to alternatives. Coupled with pursuant civil litigation under the premise of “false arrest,” the NYPD legal department feels they are the alternative—the failsafe—by prosecuting these otherwise minor violations and averting lawsuits stemming from cases ordinarily dismissed. The dangling appearances of false arrest sometimes enter the minds of defendants who wish to pursue civil litigation against cops and their departments.

The NYPD claims that in recent years it has paid out approximately $840 million in “false arrest” claims alone. It is nothing new in law enforcement; it is a part of the job whereby liability is omnipresent. But NYPD lawyers are stepping in to abate such legal caveats and preserve those tax dollars, making a stand against defendants who see money at the thick end of a judge’s gavel.

Blurred Justice Lines

South Carolina has a legacy of allowing police officers to prosecute criminal cases. According to The Washington Times, South Carolina police “officers prosecuted 89 percent of over 600 cases observed last year in a National Association of Criminal Defense Lawyers (NACDL) study of the state’s lowest courts.”

“South Carolina’s summary courts suffer lack of oversight, lack of lawyers, and little due process. Constitutional violations occur undeterred because, shockingly, the charging officers are the prosecutors,” exclaimed Alisa Smith, professor and chair of the Legal Studies Department at the Univ. of Central Florida. “In small counties, the police are running the courts—they are the arresting and prosecuting authority, and the trial judges defer to their recommendations,” Smith added.

The NACDL study and Rush to Judgment report, which included a chapter titled “Quick, Police-Dominated Justice,” was the death knell for SC police playing the roles of enforcer and prosecutor. The practice has ceased in S. Carolina.

Similarly, troopers employed by the New York State Police back in 2006 were spanked for prosecuting the agency’s criminal cases and admonished because of “an inherent outward appearance of unfairness.” The crux of the NYSP controversy involved troopers plea-bargaining directly with traffic violators to whom they issued citations, leading to a court showdown.

American Bar Association

The American Bar Association (ABA), whose national oversight of the legal profession implores ethics-based and integrity-laden principles, has among its tenets a section titled “Advance the Rule of Law” advocating to:

  • Increase public understanding of and respect for the rule of law, the legal process, and the role of the legal profession.
  • Hold governments accountable under law.
  • Work for just laws, including human rights, and a fair legal process.
  • Assure meaningful access to justice for all persons.
  • Preserve the independence of the legal profession and the judiciary.

In New York State lawyer governance, the “attorney’s oath of office” contains a general summation, as follows: “I do solemnly swear that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of [attorney and counselor-at-law], according to the best of my ability.” Generally fair enough.

The New York State Supreme Court Appellate Division delineates the following relating to “Conflicts of Interest”: “The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of the client and free of compromising influences and loyalties. Neither the lawyer’s personal interests, the interests of other clients, nor the desire of third persons should be permitted to dilute the lawyer’s loyalty to the client” [emphasis added]. How about them apples?

Relating to NYPD legal staff prosecuting their cases, Jeffryes’ attorney Martin Solar added, “It doesn’t change the fundamental questionable legality of the delegation itself. You can’t generally delegate all cases to an outside agency.” In response, NYPD Deputy Commissioner Stephen Davis replied, “The defendants in these cases are having all of their complete due process rights observed, including the right to have a trial.”

Pertaining to potential criminal justice bias in our courts, MSNBC’s Letitia James wrote, “Our system of government works best when there are checks and balances led by independent entities that are empowered to conduct fair and rigorous oversight. These are the same principles enshrined in the founding document of our country—the Constitution.”

Although Ms. James analyzed the inherent conflict in courtrooms with particular regard to prosecutors litigating against police officers, her statement relates to the “implied bias” aspects trumpeted by Hillary Clinton. Ms. James posits any bias can be eliminated by the appointment of properly vetted and un-jaded special prosecutors. Then again, the NY district attorneys swore off the burden of costs and dismissed investments of time, and that may have opened the proverbial gates.

District Attorneys

Since district attorneys in all five boroughs (counties) comprising the metropolitan NYC area are prosecutors, one may wonder what they think of relinquishing the prosecutorial reigns to NYPD lawyers.

On July 28, 2017, DNAInfo.com reported that four of the five NYC district attorney offices (all but Staten Island) have agreed to dump approximately 700,000 outstanding warrants (ten-plus years old) so as to clear out old files of “low-level violations” such as riding a bicycle on the sidewalk and disorderly conduct. The only catch is those named in the ten-year-old warrants must not have recent violations or court dates pending for fresh charges. Centrally, that doesn’t sound like a system seeking to ruffle feathers of citizens, but instead, one that is determined to streamline. Is it justice, though? I am sure people listed in 700,000 warrants think so.

“Vacating these warrants enhances public safety and promotes fairness,” was the message from Acting Brooklyn District Attorney Eric Gonzalez. Countering Kings, Queens, Manhattan, and Bronx district attorneys is Staten Island DA Michael McMahon, who contends clearing out warrants “sends the wrong message” and is “unfair” to individuals who voluntarily present in court to resolve warrants and attendant fines.

The core purpose behind vacating antiquated warrants is to unburden the courts, foster police/citizen relations, and concentrate on significant-level criminal cases. With that message, the four county DAs telegraphed disinterest in the menial stuff, in effect tossing the prosecutorial ball to NYPD lawyers.

If the district attorneys are unable or not willing to prosecute lower-level infractions, then it becomes implicit that someone must roll the ball and process the court docket. To do nothing with them defaults to useless police work and costly processing of arrestees to no avail. Publicizing such constructs defers to a hands-off approach and thus an increase in criminal activity.

Police Department Lawyers

It is standard practice for police department attorneys to advise on legal matters, write policy for police officers to follow, ensure agency standards are being met, and support programs having to do with police-community relations.

Some might say all that is lacking now is an NYPD judge overseeing and adjudicating criminal cases brought before the bench by NYC cops. Although I grant the benefit of the doubt regarding lawyerly ethics, I also firmly stand with logic and the fairness afforded by Sixth Amendment guarantees. The NYPD lawyers may be ripe with ethical reasoning, but the defendants’ unsettled feelings about prosecutors and police being compensated by the exact same source is cause for speculation and underscores fairness…or lack thereof.

Ultimately, it boils down to a matter of appearance. And by “appearance” I am referring not to physically presenting in court but in recognizing right to a fair trial tenets as set forth by the Constitution. Surely, the largest city in the nation must afford resources and equal rule of law applications, no matter the severity of the infraction.

Convincingly, some balance is necessary, as was alluded to by The Washington Times article: “Defense lawyers say the NYPD is improperly using prosecutions to try to thwart wrongful-arrest suits. The NYPD has responded that people should have to admit wrongdoing to get what it sees as leniency.” That last part is abjectly against Constitutional principles.

As a policeman, prosecutor, or judiciary figure, we all agreed to uphold and abide by the US Constitution, and that means occasionally accepting holding the shortest straw. Due process is not an enemy, it is a covenant by which all must abide.

Feeling the pressure from the New York Civil Liberties Union (NYCLU) and other oppositionists, in October 2016 the Manhattan district attorney wrote new guidelines for NYPD lawyers to follow, admonishing against seeming improprieties regarding singling out protesters only.

At the outset, the four district attorneys in favor of wiping out warrants/fines have plenty of paperwork to undo, as follows: 100,000 in Queens, 166,000 in the Bronx, 240,000 in Manhattan, and 143,000 in Kings County, and the clearing-out process commences in August 2017. Yet none of this statistical mountain and/or ability to prosecute the influx of cases ought to take a back seat to constitutional authority and deference to outsourcing jurisprudence.

In the interest of integrity and with recognition of ethics-based professionals, a National Law Journal study published in April 2013 purported that prosecutors and police officers across the nation are increasingly investing their time and efforts to exonerate wrongly convicted individuals.

Notwithstanding personal/professional stances on this issue, ethics exist, and there is hope. Perhaps not enough for some defendants like Arminta Jeffryes to believe in, but BLM-indoctrinated mindsets are seemingly cynical. Why factor into that?

She claims she is eager to have her case heard so as to alleviate the seeming impropriety of NYPD lawyers conducting prosecutions, hoping the judiciary concurs and stops the practice.

Will Arminta Jeffryes’ case be a precedent-setting one? I am burning with curiosity and look forward to Jeffryes’ trial in the fall.

Stephen Owsinski

Stephen Owsinski is a Senior OpsLens Contributor and retired law enforcement officer whose career included assignments in the Uniformed Patrol Division and Field Training Officer (FTO) unit. He is currently a researcher and writer. Follow Stephen on Twitter @uniformblue.

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