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Thousands of Low-Profile Cases Could Turn on Police Body Camera Footage


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(photo: @NYPDnews)


In June 2016, the Policing Project at the NYU School of Law co-sponsored a study with the NYPD to assess sentiments regarding police body cameras, part of an effort to influence department policy as body cameras become worn by an increasing number of patrol officers. The NYPD has been gradually outfitting its officers with body cameras, in part as a result of a court order, with an initial rollout of 54 cameras in 2014, and 1,200 more to be added to the force this year. As part of a new contract with the city’s patrol officers union, Mayor Bill de Blasio announced in early 2017 that all 23,000 patrol officers would be wearing body cameras by 2019.

In implementing a body camera program, the NYPD must outline the protocols that would guide everything from circumstances under which officers must activate their cameras to the proper method of releasing footage.

The Policing Project survey, which remained open for 40 days, received 25,126 responses from “individuals who identified themselves as living, working, or attending school in New York,” as well as 5,419 police officers. In a study conducted concurrently by the Marron Institute of Urban Management at NYU, police officers answered similar questions and were encouraged to participate by Pat Lynch, the President of the Patrolmen’s Benevolent Association (PBA), who posted the questionnaire on the union website within days of its launch.

One of the many themes in the study was the ongoing question of a defense attorney’s ability to access police body camera footage in the cases they handle with clients, who are charged with a crime by a local district attorney. Public defenders, who handle a large percentage of cases brought against poor New Yorkers, are particularly concerned about rules governing the usage of body cameras and access to footage. There were 314,870 arrests made by the NYPD in 2016, most of which were for non-violent crime.

Discovery law -- the process by which defense lawyers are given access to materials by District Attorneys in cases and plea negotiations -- is inconsistently implemented across the five New York City boroughs, according to public defenders. As body cameras become ubiquitous in the NYPD -- by 2019, all members of the PBA will be wearing one -- there is increased pressure from public defenders and advocacy groups like the Brennan Center for Justice, the Bronx Defenders, and the New York City Civil Liberties Union (who all submitted their own responses to the surveys) to develop comprehensive laws surrounding police-worn body cameras.

When Mayor de Blasio and the PBA announced their new contract deal, the mayor said, “this agreement provides the compensation and benefits the world’s finest police department deserves, while outfitting the entire force with body cameras and delivering the transparency and policing reforms at the center of effective and trusted law enforcement.” Transparency is the lynchpin underlying calls for the proliferation of body cameras within the NYPD (and other police departments around the country); but some fear that NYPD policy and district attorney practices will not uphold the rhetoric espoused by the mayor.

While police body cameras are often discussed in the context of major incidents of police brutality, it is the many thousands of lower-profile interactions between officers and members of the public that will make for virtually all of the footage taken by such cameras. Police body cameras will capture hundreds of thousands of low-level arrests each year, as well as circumstances around felonies, contentious and harmonious exchanges between police and the public, and instances where people feel that they are treated wrongly by the police and wind up bringing their own legal action.

Police body cameras are heralded by many, including de Blasio, Public Advocate Letitia James, and others, as a key accountability and transparency tool. But, they also open what could be a Pandora’s Box of questions and potential pitfalls. Rules for recording and disclosure are being closely tracked by those who will be directly involved in many of the cases where body camera footage will be a factor, and red flags are being raised.

According to Cynthia Conti-Cook, a staff attorney with the Legal Aid Society, “the way prosecutors interpret discovery laws in New York State and criminal procedure law really allows the prosecutor to delay what he or she is revealing, causing many people to plead guilty before potentially vital evidence is disclosed." This can place public defenders in difficult positions – if prosecutor determines that body camera footage isn't relevant to a case, the public defender may never see it.

While key factors in many legal proceedings involving police body cameras will be when the camera is turned on (and off) and what is recorded, it is illegal for prosecutors to withhold footage that could exonerate a defendant.

According to Debora Silberman, senior staff attorney with Brooklyn Defender Services, “prosecutors have an obligation under [the] Brady [Bill] that they are required, if there is exculpatory video, they're obligated, [by] ethical and constitutional obligations under the law, to turn that over to us, and to make that known to us.” But this doesn't necessarily mean that a public defender will have access to body camera footage, even if it does exist.

Conti-Cook of Legal Aid said that if there is a recording from a body camera that was not evidence a prosecutor wants to produce in support of their case, either because it exonerated the defendant or in any way undermined police testimony or other evidence, then the way that prosecutors work, the prosecutor will likely withhold that evidence until the day of trial, hoping for a guilty plea before they were forced to disclose.

When contacted for comment, multiple representatives for District Attorney offices disputed this. They claimed that the Supreme Court decision of Brady v Maryland, which established that prosecutors must turn over all exculpatory evidence, meant that body camera footage would have to be given to public defenders, regardless of whether that footage was favorable to a defendant or a police officer and D.A.

Still, some public defenders have expressed doubt that it is so cut and dry and closely followed in all cases.

As things stand now, public defenders are looking forward to the proliferation of body cameras, largely so they can contextualize cases. A problem that defenders often point to is the short amount of time they’re given to prepare a case for a defendant. According to Conti-Cook “We have attorneys in Manhattan who don't learn the names of the complaining witnesses until the day before or the day of trial. And there's no way that you can prepare a case without having that information. So the night before they're always scrambling with coming up with a quick investigation, you prepare for the next day. But it really puts us systematically at a disadvantage when it comes to counselling our clients.”

It remains unclear if body camera footage will help ease this phenomenon by providing more context, or simply be another data point that public defenders need to scramble for in the final hours before a case.

The issue of evidence disclosure, including of body camera footage, is relevant to various cases, those that are tried in court and those settled pretrial. According to Silberman of Brooklyn Defender Services, “many of our cases end in a plea bargain, prior to a pretrial hearing, so we don't get the benefit of challenging the constitutionality of the search or the approach of our client...we don't get to challenge whether the police officer's observation were true or accurate, or whether they make sense in the context of the allegation.” If public defenders are able to refer to body camera footage to ascertain the full circumstances surrounding a case, they may have more leverage and even avoid some plea bargains altogether.

One public defender presented a hypothetical situation as an example. A police officer is legally allowed to search a person if the officer believes they witness an exchange of drugs take place. But what if that officer is 50 feet away from the exchange when it happens, and it’s not clear what they were actually capable of seeing at the time? Body camera footage could corroborate or disprove an officer’s account of events.

Even if a search yields the discovery of drugs, Silberman sees how body camera footage could be used on behalf of a defendant. “Very often, when we suspect that there has been an illegal approach of our client, and illegal search of our client, and illegal car stop, a car search, of either the car or the house, we would be challenging the constitutional grounds for the search or the approach,” she said.

Silberman also sees what she thinks can at times be the officer point of view, saying, “I think it can be easy to justify illegal behavior by convincing oneself that taking a gun off the street or taking the drugs off the street was worth the search.”

“[S]o few of our cases get to the stage where we get to challenge their observation,” Silberman added. “Most of our cases plea out. Which means that you're entering a plea, you're taking a misdemeanor or a felony and possibly jail time, or probation. Before you even get to that stage, very often a prosecutor will say to you, ‘look, if I have to go to a hearing, my offer's off the table.’”

There are many more pretrial hearings, when a district attorney offers evidence and a potential plea deal, than trials. “Only when you do a pretrial hearing do you get to challenge the constitutionality of the search or the approach, search through the vehicle, search of the client, search of the house,” Silberman said. “If we had a video of the kinds of observations that were made, it would be a completely different ballgame. But it's so infrequent that we even get to a stage to challenge the officer's testimony or perspective.”

Right now, both district attorneys and public defenders agree that police body cameras will have a positive impact. In a statement to Gotham Gazette, a spokesperson for Manhattan District Attorney Cy Vance said that he “has long supported the use of police body cameras, which increase the civility of interactions with residents, reduce false complaints against officers, and provide potentially vital evidence for criminal investigations and prosecutions.”

On the question of discovery, Vance's spokesperson said, “Our office will meet our legal obligations to provide this material in discovery, as we do with all evidence. We are confident in our ability to efficiently and effectively utilize and produce body camera evidence.”

Echoing a point made by Vance, de Blasio, and others, Silberman of Brooklyn Defender Services thinks that police officers will be aided by body cameras too, saying that they “benefit public safety and officer safety. Just as much as we're concerned about the truth coming out, so are police officers. Police officers also have to deal with people making accusations of falsehoods, whether they're saying something that's not true, or whether they were being too aggressive. And if an officer is acting in accordance with the law, that is justifying all the actions that he took.”

State Senator Daniel Squadron, who had co-written a letter with Assemblymember Dan Quart and Public Advocate James asking for more transparency from the NYPD, agrees. One detail that concerned Squadron, Quart, and James related to Freedom of Information Law (FOIL). In their letter to then-NYPD Commissioner William Bratton, the three elected officials outlined their worry that the cost of filing a FOIL request for body camera footage was “prohibitive” ($36,000, per the example they cited), and the procedure by which the NYPD could redact footage would undermine the ostensible purpose of body cameras: increased transparency.

In response, Bratton wrote that “our working group is proceeding as expeditiously as possible, trying to balance public transparency and individual privacy.” He cited the NYU Policing Project study and closed his letter assuring the three officials that the NYPD was “exploring all options for the use of body-worn cameras by our police officers.” Bratton has since retired from the NYPD and been replaced by Commissioner Jimmy O’Neill.

In a statement to Gotham Gazette, Senator Squadron said, “Body cameras can protect officers and civilians alike, but it's critical that transparency be a central component,” Squadron added he will “push to ensure that transparency and safeguarding privacy are cornerstones of body camera policies." Squadron didn’t address specific questions about district attorneys turning over body camera footage.

The concurrent NYU/NYPD study did address the way in which the NYPD or district attorneys would disclose body-camera footage in criminal and civil proceedings. In conjunction with the release of the Policing Project survey results, the released NYPD its assessment of the survey and its new draft policy for body-worn cameras. The NYPD rejected some recommendations from the Policing Project and accepted others. “Arresting officers will provide the assigned prosecutor with access to all BWC video related to an arrest utilizing the Body Worn Camera video management system,” the NYPD writes. Notably, the NYPD did not stipulate how the assigned prosecutor should then release the footage to public defenders.

To Nick Malinowski, formerly of Brooklyn Defender Services and now at Vocal-NY, a grassroots organizing group, the new NYPD protocol is not enough. In a statement to Gotham Gazette, Malinowski said, “Body cameras in and of themselves are neither good, nor bad. The way they are used, who has access to the footage, matters. There is not much in the current NYPD plan to suggest it will improve transparency or accountability and certainly the history of the NYPD in this regard does not give us confidence; instead we really should understand this pilot project as an expansion of police power and surveillance.”

In 2015, there were a total of 306,695 dispositions across all five district attorney borough offices, according to data from the New York State Division of Criminal Justice Services. When Gotham Gazette contacted the five DA offices, none were able to provide precise data on the number of dispositions in which body camera footage was used as evidence. As the NYPD rolls out its body camera program, that fact is likely to change.

Mayor de Blasio has pledged that body cameras are “delivering the transparency and policing reforms at the center of effective and trusted law enforcement.” A lot will depend on how the cameras are used and what footage is made available to both defendants and their attorneys, and the broader public. Silberman believes that body cameras “really speak to truth and justice. This is really what our adversarial system is all about. They would speak to what actually happened. It would give us a constitutional perspective on the incident at hand, and the incident in question.”

***
by Elena Burger, Gotham Gazette

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