Quantcast

Gotham Gazette

The Place for New York Policy and politics

Citizens Union

Public Safety

Two Heinous Crimes Unresolved


As former police officer Charles Schwarz heads back to prison to start his five-year sentence for perjury, New Yorkers have come to realize they may never know who besides imprisoned former cop Justin Volpe participated in the vicious August 1997 torture and sodomy of Abner Louima. And even as Schwarz and his lawyers were working out a plea arrangement in federal court that permitted him to avoid admitting guilt in the Louima assault, New Yorkers were learning that yet another heinous crime--the 1989 rape of a jogger in Central Park--had been committed by a man who had gone untried and unpunished.

Thus two of the most publicized violent crimes in recent New York City history are joined in parallel scenarios that may never be fully understood or satisfactorily resolved. In both cases the savagery of the assault left the victim unable to provide key information--even as both cases refocused the definition of brutality to some previously incomprehensible level.

SCHWARZ CAN NO LONGER PROCLAIM HIS INNOCENCE

The saga of Charles Schwarz's drive to be found innocent in court ended when he signed a sentencing agreement a few minutes after 8:00 p.m. on Saturday, Sept. 21 -- less than two days before his fourth trial was scheduled to begin in Federal District Court in Brooklyn. A jury had been chosen the previous day, and the stage was fully set for the next trial to be played out in the same courtroom where a previous jury had found him guilty in July of one count of perjury. When that jury deadlocked on another perjury charge and on two civil rights charges the interim U.S. Attorney, Alan Vinegrad, immediately announced that he would retry Schwarz.

That was clearly going to be a difficult undertaking. The July jury's partial verdict signaled that they thought he was guilty of something, but couldn't agree on what. The jury foreman later said that 11 jurors had voted to convict on all charges, but that one hold-out "irrational" juror had forced them to convict on the perjury charge only. And as defense counsel Ronald Fischetti noted during September's plea negotiations, all he needed to do in the next trial was convince one juror to doubt Schwarz's guilt -- something he had just succeeded in doing.

Vinegrad had little reason to believe he would be able to come up with better evidence or more convincing witnesses for the new jury, made up of 9 whites, 3 blacks, and 1 Hispanic. His threat of a fourth trial was meant to coerce Schwarz into an acceptable plea bargain. Did he succeed? Had Schwarz been convicted on all charges, he could have received a sentence of up to 15 years. But that almost surely wasn't going to happen, even with a couple of judicial rulings that went against the defense. (The judge ruled, for example, that were Schwarz to testify he could be questioned on the perjury conviction.)

What the sentencing agreement did for the prosecution was eliminate a trial -- and its potential loss -- while securing Schwarz's agreement to the highest possible sentence (5 years imprisonment plus 3 years supervision) for the one perjury conviction. Did Vinegrad go this route because he feared that Judge Reena Raggi, who sternly presided over the third trial, would not impose the highest sentence? No one is saying.

What Vinegrad did get in the plea bargain was a most unusual agreement from Schwarz that he would not continue to proclaim his innocence publicly. Much of the case had been played out in the press, with Fischetti regularly outflanking Vinegrad. Schwarz repeatedly announced his innocence, even dismissing his July perjury conviction as a "small, technical charge." (For this he earned a harsh reprimand from Judge Raggi.)

Schwarz, his wife, and his lawyers are now forbidden under the sentencing agreement from making any statements "relating in any way to the sexual or other assaults of Abner Louima." If they abide by this prosecutors will recommend to prison authorities that Schwarz get a 13-month reduction in his sentence--cutting his sentence to just under 4 years. On the other hand, the prosecutors are also bound not to discuss Schwarz's guilt, making the agreement less of a victory for Vinegrad, who seems to believe in Schwarz's guilt to the core of his being.

Plus there's an obvious problem of enforceability, as Robert Levy, a criminal defense attorney, points out--particularly over the long term. "Usually you condition a plea on something like staying away from a neighbor or not returning to a specific place," says Levy. The Free Charles Schwarz web site has been dismantled and de-listed by the Patrolmen's Benevolent Association, but what happens if some time in the future a Schwarz lawyer goes on a talk show and says Schwarz is innocent? Or, for that matter, a prosecutor goes on a talk show and says he's guilty?

The truth is that Vinegrad never got what he really wanted from Schwarz: an admission of guilt. No remorse from Schwarz, no apology, no public acceptance of his crimes, and no implication of anyone else. Had Schwarz pled guilty, he would have set in motion a whole series of criminal procedures against anyone, mostly his fellow cops, who would thereby be shown to have lied. As it is, the guilt or innocence of Schwarz and his fellow cops will likely never be known, and will be an "ongoing open wound," notes Levy.

IMPRISONED RAPIST-MURDERER ANNOUNCES HIS GUILT IN CENTRAL PARK RAPE

Matias Reyes, a man serving 33 years to life for raping three women and murdering a pregnant woman just two months after the April 19, 1989, Central Park jogger assault, told the Inspector General's office in January that he alone assaulted the jogger. A DNA test confirmed the rape. In February, Reyes was interviewed by the Manhattan D.A.'s office, which then began a quiet review of the case. According to a stunning piece by Jim Dwyer in the New York Times, investigators for the D.A. paid visits to two of the five young black and Hispanic men convicted of the assault in 1990. While "many officials still believe that justice was done" in the case, writes Dwyer, the results of the "visits have shaken veteran law enforcement officials' confidence in the original convictions." After all, these boys came to symbolize what political scientist John DiIulio called "superpredators," a new breed of unredeemable children, "remorseless and morally impoverished" juveniles. Was it possible that their convictions were wrong?

Lawyers for the five young men, who were then teenagers (four of the five were under 16), are asking the court to vacate the guilty verdicts or order a new trial. Reyes' testimony is compelling because the police never had any witnesses. The victim herself, a 28-year-old investment banker, had been so brutally beaten that she lost three-quarters of her blood and was in a coma for 12 days. Amnesia prevented her from identifying her attackers.

Nor did the police have any forensic evidence linking the assault to the teenagers, whose confessions were the only damning evidence. Three were convicted as juveniles of rape and assault, and sentenced to 5 to 10 years. One was convicted of attempted murder, rape and sodomy, and sentenced to 5 to 10 years. The fifth, who was 16, was convicted of assault and sexual abuse, and sentenced to 5 to 15 years.

There is no doubt that Reyes raped the jogger, but many other details are unclear or unproven -- the most important being whether he was alone. In a notarized statement given to defense lawyers on August 23, Reyes wrote, in an oddly Victorian way, "I was drawn by her appearance and I just had to have her." He had seen her from the park's entrance at 102nd Street, and had picked up a tree branch. "A short distance later, I hit her over the head with the tree branch. She fell down and I dragged her into a bushy area ... I took off her clothing ... I grabbed her again and brought her down, covered her face and continued to beat her with a rock and/or possibly other articles. I left and exited the park," he concluded, in startlingly cop-like fashion. Nearly all the details in his account were reported in previous newspaper coverage.

Reyes says he has come forward because of a religious conversion in prison. He may indeed have found God. But one of his former attorneys, Richard Siracusa, told Newsday that he is a classic psychopath who is "fully capable of doing what he's confessed to. I don't think it's made up, but you never know: Guys like that -- they can't separate fact from fancy."

Siracusa, who represented Reyes in 1989 when he was charged with three rapes as well as a rape-murder, took over for a court-appointed attorney who had been relieved, according to Newsday, after Reyes tried to attack him. Reyes then punched Siracusa in the face when he was sentenced by the court.

The police have been criticized for not connecting Reyes with the Central Park jogger at the time. But lawyer Barry Scheck, head of the Innocence Project, told Newsday that the computerized database that now automatically matches samples of DNA did not exist in 1989. Today the database could detect a match between the DNA found on the victim and her attacker--but not then.

Police and prosecutors have always known that at least one rapist had not been caught because they had unidentified DNA from semen left in the victim's sock. That DNA has now been proved to be from Reyes. But what the DNA doesn't say is whether others raped the jogger without ejaculating, not unusual for rapists, say the police. Nor does it say whether anyone else beat her or held her down.

April 19, 1989, was a terrible night in Central Park with dozens of people assaulted and robbed by roving gangs. At least some of the five convicted teenagers participated in these assaults. Whether they or anyone else also participated in the far more savage assault of the young investment banker is not known, and may never be known.

This case will provoke an intense scrutiny of criminal justice procedures, including the questioning of suspects. Would the Central Park jogger case have gone differently if New York followed London procedures of videotaping all interrogations? For that matter, would the Louima case have gone differently if the NYPD had videotaped the interrogations of the 70th precinct's police officers, each of whom was a potential suspect?

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Police Pay: What's Fair?


The starting salary of police officers in the NYPD is $31,305 -- too low to support a family of four in most city neighborhoods. How did this happen to cops in the most famous -- and once best paid -- police department in America? And what should be done about it in the next contract?

Police officers, who have been working without a contract since July 31, 2000, are now having their fate decided by a state board under binding arbitration. This will be the first time ever that a state panel has ruled on a city police contract. The board's preliminary recommendation, leaked in early August, was that the police should be offered the same 5 & 5 percent wage increases over two years that had previously been given to the 13-union Uniformed Forces Coalition. (Constituting about 39,000 uniformed employees, the coalition includes the unions representing firefighters, sanitation, and correction officers.)

The raises would be retroactive over the previous two years. The board also proposed that cops work another 10 shifts a year in exchange for a 3.5 percent bonus increase. Cops with six or more years experience would get an $1,800 increase, yielding a 14.11 percent increase to veterans.

This set of proposals enraged the rank and file sufficiently to turn out thousands (the Patrolmen's Benevolent Association said 15,000) demonstrators in Times Square on August 15. Chanting "Too much praise, Too little raise," demonstrators carried signs saying, "They say, 'Never forget,' We say, 'Already forgotten.'"

Greg Tarpinian, executive director of the Labor Research Association, a consulting group for unions, says that September 11 "deferred the PR strategies the police might have pursued to complete their contract last year." Instead, all effort turned to making the city safe once more, with the contract on the back burner. Yet, says Tarpinian, "the fundamental problem is that the only way the public employee, without the right to strike, can leverage influence is by going to the public. The cops have wakened up to this. Cops are not feeling disrespected by the public at the moment. They're feeling disrespected by the political establishment."

The media have been full of stories about low police morale and the defection of NYPD cops to the Port Authority, neighboring jurisdictions, and even private security firms. This is ominous for the city. Professor Dennis Kenny of John Jay College notes, "It's reasonable for cops to expect that if they're making an exemplary effort the city would appreciate it. That said, management people would say that salary is less a motivator than a de-motivator. Giving them a raise wouldn't necessarily motivate them, but not giving them a satisfactory salary could be a serious de-motivator."

LOW -- BUT NOT QUITE AS LOW AS IT LOOKS

The $31,305 entry level salary for police is indeed far too low. But it moves up fairly quickly initially, reaching $49,023 after five years, and then slowly -- topping out at $55,268 after 20 years.

The benefits are good, even excellent. Police have unlimited sick leave (though the average usage is only 8 days a year) and excellent health benefits. They can retire with a full pension after 20 years service. (This is standard among police departments. Like the military, from which the 20-years-and-out system derives, police departments require cadres of physically fit young men and women, whose usefulness on patrol will decline as youth fades.)

Since the year 2000, police officers leaving the force with as few as five years have been vested with partial pensions.

This year the city agreed to add a benefit to the other end of the job. Officers can now continue to accrue credit for pensions beyond 30 years service.

The benefits are fine but they don't make up for the low salary and subsequent low take-home pay ($411 per week), says the PBA, which argues that its members need a 23 percent pay raise to bring the NYPD into line with other police departments. It has been helpfully posting job openings elsewhere on its web site.

The starting salary in Seattle, for example, is listed as $46,146; Irvine, California, offers $46,463; and Fort Lauderdale, Florida, $39,686.

In negotiating with the Giuliani administration, the PBA had asked for a 39 percent salary increase over two years, to bring officers to parity with officers in neighboring Newark. Giuliani was having none of it. He had forced through a wage freeze in the 1995 contract and showed no sign of relenting from the small 2 percent and 2.5 percent increases he was offering for the next contract.

John Jay Professor Eli Silverman, author of "NYPD Battles Crime" (Northeastern University Press, 1999), says that Giuliani "wanted to hold the line as much with the police as with CUNY professors. I suppose in his mind this was across-the-board equity. But the police felt they were producing far more for the city in terms of tourism and economy, and that they weren't getting rewarded fairly."

PERHAPS REGRETTING WHAT THEY ASKED FOR

In 1998, in the midst of their battle with Giuliani, the PBA pushed through legislation in Albany securing the right to have contract disputes go before the New York State Public Employment Relations Board (PERB). The PBA liked its chances with the three-member board that has only one member selected by the city, one by the union itself, and a third by the state board. The city challenged the legislation in court, and lost before the New York State Court of Appeals, which last year upheld the law.

The city, which is facing a $5 billion deficit next year, is now overseen by a mayor who is very confident of his management abilities, and who is not easily swayed. On his weekly radio show on WABC-770AM, Mayor Bloomberg said the PBA had not wanted to negotiate with "Giuliani, and they certainly didn't want to negotiate with my administration for seven months. They insisted on going to binding arbitration. They got themselves in a situation where win, lose or draw - when you go to binding arbitration - you have to live with it." The PBA denies this, saying they have always been open to negotiation, but as Bloomberg says, "Once you go to binding arbitration, you don't have any choice - you got to accept what it is and get on with it."

Bloomberg's problem is not just that a 23 percent increase would cost the city about $445 million, it's that a substantial raise for the cops would break the sacred principle of pattern bargaining by which the city offers its labor unions roughly the same percentage in raises. If the city deviates from settled contracts to pay the cops a jump, the other unions will come back for more. The PBA demands would cost the city about $257 million above the cost of the pattern settlement. Bad enough, but were the PBA proposal to be applied to all uniformed employees, it would cost the city over $1.3 billion for this contract period alone.

After seeing its hopes for a better deal from the state dashed in early August when the New York State Public Employment Relations Board floated the 10-percent-over-two-years proposal, the PBA rallied its troops for the public demonstration in Times Square. More quietly, its lawyers pressured the board to reexamine some 75 hours of testimony -- which the board has agreed to do, postponing any final ruling.

PROBLEMS AT BOTH ENTRY AND EXIT

As serious as the financial implications of these negotiations are, the operational problems may be even worse. Will the NYPD be able to continue its successful (but personnel-heavy) crime-fighting strategies if its pay is uncompetitive? The city and the PBA have been arguing for months about whether the NYPD does indeed have a recruitment and retention crisis. The PBA says yes, the city says no.

The test-taking numbers alone confirm there's a problem. In his March 19, 2002, testimony, former NYPD First Deputy Commissioner John Timoney pointed out that the number of people taking the test to become police officers has fallen precipitously, to 12,000 in the last couple of years from 37,000 in 1995. This is potentially disastrous because traditionally only 10 percent of those taking the test go on to the academy. (In 2000, the academy was unable to fill a class for the first time that anyone could remember.)

Further the drop-out rate at the next stage -- those actually enrolled in the academy -- has doubled from the historic rate around seven percent, says Timoney, to about 14.7 percent today.

Perhaps even worse, the rate at which recruits have been cited for infractions during their time in the academy tripled since 1997, says Timoney.

And all this despite the lowering of age and education standards during the last years of the Giuliani administration. Noting that he and Police Commissioner William Bratton had raised the standards in the first place, Timoney criticized the city's November 2000 reduction of the minimum age for police applicants by a year (from 22 to 21), and the substitution of two years as school safety officers or traffic enforcement agents for two years of college. Yet even with these lowered standards, applicants have been few.

Similarly, the NYPD has been grappling with a retirement problem for several years. The year 2000 saw the beginning of a surge, which extended well into 2001, in the number of officers eligible to retire. The overtime produced by the Sept. 11 terrorist attack then accelerated retirements further, since pensions are based on the last year's salary, in many cases, inflated by 9/11.

In sum, the NYPD is having trouble recruiting the youngsters and keeping the veterans.

WHAT SHOULD BE DONE?

Economists like to say that there is no such thing as a labor shortage, that any shortage is immediately correctable by raising pay. Indeed, New York City recently brought an end to its long-standing teacher shortage by hiring some 8,000 qualified candidates for the fall. The deluge in certified applicants was due in part to the new contract agreement raising entry-level teacher salaries to $39,000 from $31,910. Even at $39,000, New York's teacher pay is below that of neighboring jurisdictions (Yonkers pays $40,000, for example) but the jump was enough to attract those who wanted to be here. Plus top pay is high at $81,000.

But the teacher settlement was helped out by the state, which kicked in supplemental money. The police settlement is not being helped by the state, and there are no more of the federal funds that long fueled Operation Condor, the overtime initiative that paid cops an extra $100 million a year to work a sixth day. The city is on its own with cop pay, unless Senator Schumer's federal aid proposal comes through, which even he admits is unlikely.

The city only has three ways to pay for a better contract: (1) state or federal aid, for which it is surely negotiating as ferociously as possible; (2) savings within the NYPD itself; and (3) productivity savings. There has been almost no talk during negotiations about savings within the NYPD, although Newsday's Leonard Levitt regularly points out the extravagant round-the-clock use of officers to protect former police commissioner Howard Safir and former Mayor Giuliani, his girlfriend, former wife, and children. That leaves productivity savings, such as the proposal for an additional 10 shifts a year.

The good of the city requires productive, dedicated police officers -- and a contract that says they're appreciated. New Yorkers should be paying attention.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Capital Punishment, Parole, And More


CARNEGIE DELI KILLERS SENTENCED

The two men convicted in late June of killing three people and wounding two others in an execution-style murder and robbery above midtown's Carnegie Deli have been sentenced to life in prison. Each murder count carries a prison term of 25 years to life. The two counts of robbery carry 15 years each, as does the count of criminal possession of a weapon. All the terms will be served consecutively.

The Carnegie Deli slayings had focused attention on the anti-death penalty stance of Manhattan District Attorney Robert Morgenthau, who refused to prosecute the triple murders as death penalty cases. Arguing after the trials that there had been insufficient evidence to prove that a single shooter fired the shots, he said that "The statute's pretty narrow. People who are for the death penalty don't want to understand that. We couldn't prove who the shooter was and we can only charge the actual person." Prosecutor David O'Keefe said the two would have to serve 116 years before being eligible for parole.

Addressing the killers during sentencing, the father of one of the victims said, "The only thing I regret is this isn't Texas." Texas is the country's foremost death penalty state.

GOVERNOR'S RACE QUIET WHILE COURTS ACTIVE

During much of the summer the future and fairness of New York's death penalty has been discussed in the news, on radio and television talk shows, and at academic conferences. Where it has not been discussed above a whisper is in the state's gubernatorial campaign. You would hardly know from following the campaign of George Pataki, our sitting Republican governor, that he is presiding over the state today in part because he strongly supported the death penalty in 1994 when then-Governor Mario Cuomo opposed it. Nor would you know this from following the campaigns of Democrat Carl McCall or even Democrat Andrew Cuomo, son of the anti-capital-punishment former governor.

Quiet as the gubernatorial campaign has been, the courts at all levels have been unusually active. The U.S. Supreme Court handed down two momentous decisions -- one banning the execution of retarded criminals, the other saying juries must find all facts leading to a death sentence.

Neither applied to New York State's shrewdly written law, which already forbade execution of the mentally retarded and which already placed capital punishment squarely in the hands of juries.

Then Federal Judge Jed Rakoff, sitting in the Southern District in Lower Manhattan, declared the federal Death Penalty Act unconstitutional -- the first ruling [pdf] to do so -- citing "an undue risk of executing innocent people" and various procedural problems, most of which New York State is thought to have avoided in the implementation of its statute.

DEATH SENTENCE THROWN OUT IN CLUB HAPPINESS MURDERS

New York's own Court of Appeals was not far behind the feds, throwing out the death sentence of Darrel K. Harris, who had murdered three acquaintances in 1996, a year after Governor Pataki succeeded in bringing the death penalty back to New York.

Harris had been tried under the 1995 law, whose flawed plea-bargaining provisions encouraged defendants to plead guilty rather than risk a death sentence after a trial. Because these provisions unfairly threatened capital punishment to any defendant exercising a citizen's constitutional right to a jury trial, they were struck down in Hynes v. Tomei in 1998, right after Harris's conviction.

Writing for the Court of Appeals in early July, Judge Richard Wesley, a Pataki appointee, noted that Harris's guilt was established beyond a reasonable doubt. Still, wrote Wesley, "All seven of us have concluded that there is no reason to retreat from Hynes; all of us agree that the statute at the time of defendant's trial impermissibly discouraged defendant's assertion of his Fifth and Sixth Amendment rights. Accordingly, the trial court could not constitutionally impose the sentence of death on this defendant."

The facts of the case are undisputed, even by Harris, then a 39-year-old decorated, former corrections officer. He had no criminal record and had been honored in his job for saving a fellow officer during a prison riot. Nonetheless, in the early morning of Dec. 7, 1996, he murdered two men and a woman (a mother of five children) at Club Happiness in Brooklyn's Bedford-Stuyvesant neighborhood. The jury had found him guilty of first-degree murder and voted for death by lethal injection, rather than life without parole.

Harris's case is being sent back to Brooklyn for resentencing by Acting Supreme Court Justice Anne Feldman, who can sentence him to life without parole or to something between 20 to 25 years and life. The possibility that this murderer of three people might some day walk free from prison has not yet been widely commented upon.

PAROLE REAPPEARS IN THE NEWS

Parole for violent felons has not been a major political issue since the summer of 1998 when, despite initially strong Democratic opposition, the governor and the Republican leadership secured passage of Jenna's Law, which eliminated parole for first-time violent felons.

Now the imminent release of Robert Rodriguez, the landlord of the Lower Manhattan couple who disappeared in 1997, is putting parole back in the news. Rodriguez had refused to cooperate in the investigation of the couple's disappearance, according to the NYPD. Nonetheless, the cops succeeded in getting him on overlapping state and federal tax and credit card fraud. Since he was not convicted of a violent felony, he is being released early, and over angry objections from the NYPD and the Manhattan D.A.'s office. Barbara Thompson, a spokesperson for the Manhattan D.A., said, "Obviously, we objected to his parole, and we recommended that he serve the maximum sentence, as we did at his sentencing." He is being released Aug. 30, 2002. Were he not being paroled, he would have been released on Aug. 30, 2004.

Another recent Manhattan parole case is that of Daphne Abdela, a young woman who in 1997 helped cut the throat of a friend in Central Park. The parole board denied her release because of her poor behavior in prison as well as a "total disregard for human life." She was eligible for parole under pre-Jenna's Law rules because the murder occurred in 1997. Under Jenna's Law she would have to serve 6/7 of her sentence.

The two state laws restricting parole have dramatically changed the parole numbers. During fiscal 2001, only 21 percent of inmates convicted of violent felonies who came up on parole were released -- as opposed to fiscal 1992, nearly the end of the Cuomo administration, when 54 percent of the 7,227 the violent felons who came up were paroled. The state Office of Criminal Justice argues that Pataki's parole policy has been one of the factors in reducing the state's violent crime by some 43 percent since the Cuomo administration.

POLICE DEPARTMENT DEFIES JUDGE

Manhattan Supreme Court Justice Dorothy Cropper's insistence that three undercover narcotics detectives give their names before testifying in criminal court has landed her in an ugly dispute with the NYPD. Obeying an order from Police Commissioner Raymond Kelly, the undercover detectives defied Cropper's instruction, which led her to toss out all their evidence and testimony in a felony drug case. This seems an odd case to go to war over since the defendant is accused of selling "$10 bags of cocaine" to undercover cops.

Still, there are arguments on both sides. The right to confront one's accuser is one of the oldest and most fundamental common law rights, and should be abrogated only for the most serious reasons. Further, say defense lawyers, the practical ramifications of the cops withholding their identity suggests to a jury that they are in danger from the defendant. As defense lawyer Robert Levy notes, "Anytime the courts increase security beyond normal, this gives an aura that something is wrong. Unless there's a showing of special circumstances, such as an important ongoing investigation that's being jeopardized, the simple status of an undercover cop in what is not even a big case does not deserve special treatment."

The NYPD argues that identifying undercover cops in court will undermine the NYPD's ability to fight crime and will put at risk the lives of the undercover detectives who are involved in larger investigations. Brooklyn D.A. Charles Hynes wrote a letter to the police commissioner saying he would dismiss a drug prosecution rather than endanger undercover narcotics cops by making them give their names in public. Queens D.A. Richard Brown said that in his 11 years as D.A. he has not seen any instance in which a court did not allow an undercover to testify by number rather than by name.

SCHWARZ TO BE RETRIED SEPTEMBER 23

The vicious, nearly fatal assault of Abner Louima in the bathroom of a busy Brooklyn precinct house on August 9, 1997, brought the meaning of police brutality to a graphic new low. The main assailant, Justin Volpe, is serving a 30-year sentence in federal prison. But he was directly aided by a second police officer, identified (though not named) by Louima as the driver of the patrol car that brought him in. This second cop first beat Louima and then pinned him down while Volpe tortured him. Volpe was also indirectly aided by the dozens of police officers on duty that night, many of whom had to know that a brutal crime had been committed in their precinct house. Yet despite several trials and the deployment of the full resources of the federal government only one person,Volpe, is now in prison for the Louima assault.

Federal prosecutors believe the second cop to have been Volpe's partner (and driver of the patrol car) Charles Schwarz. But the jury in Schwarz's recently completed trial in federal court in Brooklyn found him guilty of only one count of perjury. The jury deadlocked on another perjury charge and on the two crucial civil rights charges that justified the federal prosecution in the first place.

The jury's foreman, Russell Birnbaum, wrote a front-page account in the New York Observer of the jury's deliberations. He said one juror had championed Schwarz's innocence from the start, and had not deliberated fairly with the other 11 jurors, all of whom were congenial and serious. She forced the jury to deadlock on the more serious civil rights charges, and would only agree to find Schwarz guilty on a lone perjury charge.

U.S. District Court Judge Reena Raggi has scheduled a retrial of Schwarz on the civil rights charges and the other perjury charge for September 23. Resisting defense arguments that they needed time to raise money to pay for the defense, Judge Raggi said that jury selection after a mistrial typically starts the next day. She is giving them six weeks, with the initial questioning of jurors to begin September 9.

NYPD LOOKS INWARD

The NYPD has been through a lot this year, and now it must contend with an 88-page draft report from McKinsey & Company, the business consulting firm, that it suffered from lapses in leadership and coordination on September 11. Using interviews with more than 100 department commanders as well as interviews with some 700 police officers of different ranks, McKinsey says that many cops did not know who was in charge after the attack, and that many officers in the field acted without direction from field commanders.

The New York Times quoted a senior police official who noted that 25 percent of the officers interviewed by McKinsey were unsatisfied with their supervision that day. The official said that on most days more than half of the department's officers would say the same thing.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Drug Law Reform Failed Again


A year in which the governor and all 211 legislators are up for reelection is generally not the politically preferred time to introduce legislation perceived as soft on crime.

Nonetheless, in his January State of the State address Governor George Pataki called once again for reform of the Rockefeller Drug Laws, which mandate harsher penalties for drug convictions than for most violent offenses. Someone convicted of selling two or more ounces of heroin, for example, or possessing four or more ounces of cocaine faces a mandatory minimum prison sentence of 15 years -- and may be sentenced to life. Someone convicted of selling a single bag of heroin or a single vial of crack faces five years or more. Pataki's emphasis has been on bringing sentencing for nonviolent drug offenses into line with sentencing for other nonviolent crimes.

You might think this reasonable reform would have been a slam dunk. Yet despite the impression given in the media of widespread support for reform (helped by the hundreds of articles in major newspapers on the unfairness of the laws), proposals have come and gone over the last two years without any law clearing both the Assembly and the Senate.

The antagonistic positions are pretty clear. Democrats in the Assembly tend to believe in rehabilitation and treatment, even of felons with several convictions, and Republicans in the Senate do not. The Democrats have been pushing for greatly reduced sentences as well as judicial discretion to assign an offender to treatment--which they would like to have far more generously funded--rather than prison. (Nearly everyone, even prosecutors, agree that treatment programs are underfunded. Some upstate counties have no drug treatment clinics whatever.) Under the current sentencing system judges are bound by the weight of the drugs seized and the defendant's felony record. Any treatment option (called "diversion") lies with the prosecutors, which is where many Republicans in the Senate intend to keep it. Republicans tend to oppose most decreases in prosecutorial discretion as well as any increases in judicial discretion.

In an attempt to end a stalemate with the Assembly in early May, Governor Pataki softened some key elements of his proposals. While prosecutors would have still determined which defendants deserved treatment, defendants turned down for treatment would be able to appeal to specially trained judges who could overrule the prosecutor (who could then appeal, however). Pataki also proposed substantially lighter sentences--and eliminated the possibility of life imprisonment--for non-violent drug offenders. But in the old-time Rockefeller spirit, Pataki also urged a mandatory five-year sentence for anyone carrying a gun while committing a drug offense.

The Assembly Democrats weren't buying. They said the benign-looking proposals were in fact coercive and counter-productive. Very few drug felons, they argued, would be able to appeal to a judge for treatment rather than prison because only those with either no criminal record or only one prior felony conviction were eligible. Most addicted felons, say Democrats, have more than one conviction- -- a status that Republicans regard unsympathetically. Roughly 1,600 people imprisoned on drug convictions in 2000 were first-time offenders who would have benefited under the governor's proposal. Another 1,750 had more than one conviction on their records and would not have qualified.

Over 94 percent of imprisoned drug offenders are African-American (about 9,700) or Latino (7,800). Most are from New York City, making this look like a classic upstate-downstate issue with New Yorkers pitted against the rest of the state. Yet not everyone in New York City wants the drug laws abolished. While a 1999 Zogby poll concluded that Rockefeller reform was popular among all ethnic groups, nearly half (49 percent) of Latinos called reduced prison sentences for drug offenders "soft on drugs." This compared with 32 percent of blacks and 29 percent of whites. So while Governor Pataki has been targeting his drug proposals to minorities, he has been treading carefully.

Quiet opposition to softening the drug laws also comes from small businesses in neighborhoods affected by drug use. A West Side flower dealer, for example, recently complained to the police about being repeatedly robbed by recently released addicts. "They plagued me ten years ago," he said. "And now they're back. Do I want more of them out? No!"

Much of the public (and media) discussion of the drug laws has focused on sympathetic youngsters--young mothers, for examples--with plausible stories for how mistaken judgment landed them an unfairly harsh sentence. Republicans (and prosecutors) say that three-fourths of first-time drug offenders do not serve any time in prison. They are either given probation or sent to special drug courts, where judges nearly always divert them to treatment. The other one-fourth of first-time offenders who actually do time do far less time than is commonly thought, say Republicans. First-time offenders released from prison last year had served an average of 27 months. Repeat offenders had served an average of 39 months.

The real political debate has been over the most serious felons, who constitute about 28 percent of those incarcerated for drug felonies. The most serious felons were the stumbling block that caused reform to fail last June as well as this June. The Democrats want judges to have the discretion to send such felons to treatment instead of prison. The Republicans, including the governor, want the assent of prosecutors, who argue that at least two-thirds of those imprisoned on drug charges are dealers with two or more prior convictions--in other words, bad guys, not just misguided youngsters.

The district attorneys say they should be in charge of diversion decisions because they know the defendants far better than the judges do. What's more, they say they have been generous with treatment, sending some 2,400 people indicted on drug charges last year into treatment programs. About half had prior convictions. Yes, say the Democrats, but another 11,600 people were sent to prison, and at least some of these should have been candidates for treatment.

To the chagrin of many New Yorkers the legislature has adjourned without touching the drug laws. But there are some who say privately that this is for the best. New York's major crime continues to plummet at least in part because the state has taken so many drug dealers, couriers, and users off the streets. Those on both sides of the debate agree on one time bomb: thousands of felons sentenced harshly are now being released to inadequate treatment and social services.

MAJOR CRIME CONTINUES TO PLUMMET

Last June Mayor Rudolph Giuliani made a triumphant announcement: The city's murder rate had fallen 13 percent over the first six months of the year. The police department had logged 289 murders through June 24 -- or 46 fewer than in the first six months of 2000. Were this rate to continue, the city would experience 581 murders by year end, far fewer than the previous year's 673. When Police Commissioner Bernard Kerik predicted that the city would have fewer than 600 murders, he was harshly reprimanded by Giuliani, who called the goal "very highly unrealistic."

This June Mayor Bloomberg quietly announced that murder had plummeted 12.6 percent in the first six months of the year (the duration of his administration so far). With 256 murders through June 26, 2002 (as opposed to 293 through June 30, 2000) the city may well experience the lowest number of murders for any year since 1965, which had 549.

Robbery was down 8.6 percent, felonious assault down 12.7 percent, and grand larceny down 4.3 percent. Rape, however, was up five percent--a very troubling statistic. Rape data vary substantially by borough. While rape was down 5.6 percent in Staten Island and 1.2 percent in Queens, it was up over eight percent in both Brooklyn and the Bronx--and a tiny, though perhaps ominous, .07 percent in Manhattan.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Operation Spotlight, etc.


Last fall's post-September 11 headline in the satirical newspaper the Onion read: "Rest of country temporarily feels deep affection for New York." But it is still holding on. Despite forbidding statements from federal officials about the vulnerability of the city and its landmarks--particularly the Statue of Liberty and the Brooklyn Bridge--Americans are still coming to New York in large numbers as tourists. The city's hotel room occupancy--nearly 79 percent in April, about the same as last year--showed no sudden drop-off after the new federal alerts, according to the Daily News.

Nonetheless, not all New Yorkers were standing tough, and certainly not Brooklyn Borough President Marty Markowitz, who cancelled the June 2 birthday celebration of the 119-year-old Brooklyn Bridge. Police Commissioner Raymond Kelly said the Police Department had not asked for the cancellation. "That's a decision we did not recommend one way or the other," said Kelly at a City Hall news conference. "He made that decision on his own."

NEW YORK POLICE TRAIN IN ISRAEL

Meanwhile the Daily News revealed on May 19 that the NYPD had sent five investigators from its counterterrorism and intelligence bureaus to attend a symposium on suicide bombers in Israel. The next day, the director of the Federal Bureau of Investigation warned that suicide bombings like those in Israel would be "inevitable" in the United States.

The NYPD's five investigators represented the first time any American police department had received training from Israeli experts--and also the first time that the NYPD had sent officers to any foreign country for instruction. Kelly denied that the training was tied to specific expectations of suicide bombers in New York.

Nonetheless, New Yorkers with memories reflected on the near-miss in 1977 when a Palestinian living in Brooklyn was arrested within hours of exploding a nail-studded bomb in the subway. This is the first and only known instance of an attempted suicide bombing in New York. Was it an isolated incident? or a portent of things to come? The NYPD is judiciously preparing for the worst.

POLICE ARE STILL TAKING CARE OF BUSINESS AT HOME

There are a few bad signs in the city's routine life. Drug dealers are popping up again on the West Side. Prostitutes are visibly back in Times Square. Ugly etched graffiti mar retail windows in Midtown and up and down both East and West Sides. And somehow seven arrested suspects, including an alleged serial rapist, escaped police custody this year--two in one week.

Yet overall crime in the city declined by seven percent during the first four months of this year compared with last year. With the exception of rapes, up six percent, and shootings, up 22 percent, every major category of crime was down. The police are containing crime, even as New Yorkers are getting jittery.

And Mayor Bloomberg is showing he's no wuss. He has announced a new program, Operation Spotlight, which beginning July 1 will target the worst of the nearly 10,000 low-level criminals who repeatedly commit quality-of-life crimes--and get off with a few days in jail or community service. Calling them career misdemeanor offenders at a City Hall press conference, Mayor Bloomberg said: "These are the people who deal drugs, deface storefronts and steal from our retail establishments. They drive away tourists. They discourage shoppers. They devalue our neighborhoods. The time has come for us to cast a spotlight on them."

This has long been a sore spot with police, who were pressured by Mayor Giuliani to make quality-of-life arrests only to see most suspects walk even in cases of proper evidence and paperwork. At least part of the problem was the judicial system, full of unsympathetic judges. Designed with the cooperation of Chief Administrative Judge Jonathan Lippman, Operation Spotlight authorizes judges at special courts in each borough to sentence convicted repeat offenders to up to a year at Rikers. Offenders can also be sent to drug treatment.

CAREER MISDEMEANOR OFFENDERS AS ARTISTS

Columbia University Press chose April as the right time to publish Taking the Train: How Graffiti Art Became an Urban Crisis in New York City, by Joe Austin, an assistant professor of popular culture at Bowling Green State University. Austin argues that graffiti artists, called "writers," have never been given a fair hearing on their cultural contributions. He seeks to rectify this injustice while lecturing New Yorkers on the provincialism that led them to destroy what he regards as "perhaps the most important art movement of the late 20th century."

It's wise to skip over his political analysis, which is full of errors, including the "four-term Democratic incumbent Richard Wagner" (instead of three-term incumbent Robert Wagner) not to mention the anti-graffiti parks commissioner "Hubert Stern." (by which he surely meant Henry Stern). But the full-color photographs of the trains painted with "masterpieces" by Kase, Dondi, Vulcan and other writers are a reminder of just how talented some of them were--and just how out of control sections of New York had become. A detail of the 200-foot long Halloween Wall in a Brooklyn schoolyard is undoubtedly magnificent--and it was painted by Loomit, a German writer. New York not only had its homegrown writers, it had become a magnet for foreigners whose local municipal authorities had the good sense, unlike ours, to fence their own train yards and patrol vulnerable public spaces.

Let's hope that the days of career misdemeanor offenders, artists or not, will soon be over.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Back To The Bad Old Days?


Nobody wants to go back to the bad old days when the very name New York City was associated with crimes so brutal they entered the American lexicon. The Central Park Jogger. The Diana Ross concert. The March of Dimes Walkathon. Yet the past month saw shootings, assaults, and rapes shocking enough to provoke nine different articles in newspapers and magazines citing New York City's bad old days. A grandmother was shot on her way home from church, a young girl was raped in the elevator of her apartment building, a five-year old child was shot in the cheek while standing with her mother. After noting the reminiscent ugliness, most of the articles argued that we were not back in the bad old days yet.

All the papers covered the story of the young engineer, Kirill Nekrasov, who was walking on April 13 with his girlfriend on West Houston Street, when he was accosted by muggers. They demanded his money; he refused and pushed one of them; they shot him in the face. He is in critical condition in intensive care, and has not awakened from a coma. The young men since arrested are said by the police to be members of the Bloods street gang.

Nekrasov's carefree attitude, noted the New York Daily News, had been "shared by a growing legion of New Yorkers and tourists" and "reflected how far the city had come from the early 1990s, when there were an average of six murders per day."

HOLDING CITY HALL RESPONSIBLE

During last November's mayoral election, many New Yorkers listened apprehensively for any unguarded phrase or gesture that might indicate a candidate wasn't that serious about keeping crime down. Michael Bloomberg was elected in part because he made no mis-step on crime. But if violent crime goes up--or if the random violent assaults New Yorkers most fear continue--he will be held accountable, fair or not. Answering a press conference question about rising violence, Police Commissioner Ray Kelly said, "When you get eight million people together you're going to have crimes of violence and robberies--these sorts of tragedies--no question about it."

Pointing out the overall seven percent decline in crime and the steep 25 percent drop in the murder rate from last year, he added, "So things are certainly moving in the right direction. It doesn't mean we're not going to have crime and it doesn't mean we're not going to have instances of violence like this." Kelly has a point. After all, savage crimes have always been a part of big city life, even during the crime-fighting heyday of the Giuliani administration. Two sets of murder that will long be remembered for their depravity occurred in Giuliani's second term--the May 2000 murder of a Chinese deliveryman by teenagers who wanted free food, and the May 2001 Carnegie Deli slayings of three friends by a disgruntled small-time dealer.

Nonetheless, after listening to Commissioner Kelly one New Yorker muttered, "You know, I'd feel better if the police commissioner talked tough like one of those old sheriffs in the West. I want to hear him say that this is my town, and that nobody gets away with bad stuff in my town."

CRIME MAY BE DOWN, BUT SHOOTINGS ARE UP

The fact is, for whatever reason--and some blame the dismantling of the Street Crime Unit--people are getting away with more shootings than before. Murders through mid-April were a record low at 128, but shootings are way up. Since January the city has seen a 27 percent jump to 463 shooting victims or 405 incidents. The same period last year, which may have been a record low, saw 366 shooting victims and 341 incidents. The first week of April this year was particularly bad, with 41 people wounded by gunfire, up from 12 during the same period in 2001. The most troubled areas are Manhattan North, Brooklyn South, and the Bronx.

City Hall and Commissioner Kelly announced a doubling in the reward--to $1,000--that Operation Gun-Stop gives to tipsters turning in anyone who is successfully arrested for carrying an illegal gun. Kelly also said the police are making record numbers of gun arrests--some 1,200 arrests this year, up about 25 percent from last year.

So why is Kelly dismantling the elite Street Crime Unit that had been widely credited with reducing crime, drugs, and guns in once violent neighborhoods? Some conservatives think he's giving into community agitators; it was Street Crime Unit cops that killed the unarmed Amadou Diallo in February 1999. But Kelly offered legitimate reasons for this reorganization. For one thing, the department is low on officers. Kelly has only 37,680 police officers, down from 40,710 in late 2000. The number of detectives in neighborhood squads is the lowest it has been since 1997.

Further, his redeployment of the unit's remaining 180 detectives to precinct-run plainclothes anticrime teams and to understaffed neighborhood detective squads throughout the five boroughs is part of his strategy to return authority to precinct commanders. Some two-thirds of the detectives will be doing the same intensive, anti-drug and anti-gun work, but they will be doing it under precinct command instead of the centralized Street Unit's command.

The police department always suffers from tension between the police commissioner's downtown vision and the implementation of-- or resistance to--that vision by the department's 76 precincts. As George Kelling pointed out in a recent report for the Manhattan Institute, Commissioner William Bratton invested enormous authority in precinct commanders, devolving both resources and decision-making to the precinct level. Bratton used mandated weekly planning meetings to force precinct commanders to identify problems and discuss their plans for dealing with them. Once occupied with traditional bureaucratic politics at central headquarters, precinct commanders were reoriented by Bratton to focus on their precincts. These changes also reoriented borough chiefs and top commanders. As Kelling wrote, "If precinct commanders looked bad, it reflected on the borough chiefs, and so on up the line."

But centralized departmental politics--and the clout of elite central units--were gradually regaining an upper hand over the precincts. Kelly is signaling that his administration will be one of precinct command. And that's good.

He is also moving 150 detectives from the department's warrant division and nearly 100 police officers (one from each of the 76 precincts and 20 from the housing and transit bureau commands) into neighborhood detective squads.

CIVIL LIBERTARIANS CHEER

Of course, for many civil libertarians, the bad old days were during the Giuliani administration, when the city refused to release records under the Freedom of Information Act, routinely strip-searched people arrested for misdemeanors, jailed protestors overnight instead of issuing desk appearance tickets, and set up check-points to stop all people entering certain neighborhood, even low-crime neighborhoods. The city has been sued on all of these policies.

So civil libertarians welcomed the recent news that the Bloomberg administration is quietly settling contentious suits with the citizenry. The New York Times reported that the settling of lawsuits over city policies fulfills a pledge Mayor Bloomberg made shortly after he was elected. Last year the city paid out a stunning $582 million in lawsuit settlements and court awards, mostly for civil cases, an unspecified chunk of which were for police brutality.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Alternative Juvenile Court


 

It was Tuesday afternoon at the Red Hook Community Justice Center and a teenage girl accused of robbing a classmate at school stood before judge Alex Calabrese. She had one arm around her mother's waist and the other dangling at her side. The youngster, whose purple hair hung straight down her back, intended to plead guilty, but first the judge had some questions. He wanted to know if her grades had improved, whether she was keeping her 8:15 p.m. curfew and how she was getting along with her mother these days.

These questions are not unusual in a juvenile delinquency case. But the mother's responses were. She beamed as she told the court her daughter recently received a grade of "100" in one class and now comes home on time.

In court, mother and daughter both thanked the probation officer, who arranged several programs for them, including parent-child mediation.

In Red Hook's juvenile court -- unlike family court in downtown Brooklyn -- parents and children can avail themselves of a vast array of services right in the courthouse. Counseling, mentoring and mediation programs take place at the center, making it convenient for families to use the services. An on-site social worker also meets with each youngster to help determine what services are needed.

The availability of programs also means Judge Calabrese can feel confident about sending a child home to his parents, instead of to juvenile jail.

The Red Hook court began for adults in June 2000 and started taking juvenile cases in April 2001. Now, any youngsters under age 16 who are arrested in Red Hook, Sunset Park, Park Slope, South Slope, Gowanus, Cobble Hill or Wyckoff and released to their parents by the police are sent to the community justice center. The probation department then decides whether to refer the case for prosecution or resolve it out of court. The out-of-court resolution can involve counseling or mediation between the parties, something that is frequently used with altercations that began as disputes between students at school and then escalated to the point of arrest. So far, approximately 45 percent of the cases in Red Hook have been successfully resolved out of court, compared to 10 percent citywide, according to Alfred Siegal of the Center for Court Innovation, a joint venture of the state court system and the non-profit agency, the Fund for the City of New York.

If the case is flagged for prosecution, the prosecutor's office can decide whether to file charges in Red Hook or a more conventional court downtown. Only 10 cases have been filed in Red Hook in the last year, which is fewer than authorities had expected. Arrest statistics for the neighborhood indicated the court would receive up to 50 cases per year.

Several people involved with the court said this was probably due to the reluctance of Peter Reinharz, the chief prosecutor for family court, to bring cases there. Reinharz, who was nationally known for his tough-on-crime approach, resigned effective Feb. 22.

The staff at the alternative court is hopeful that the Bloomberg administration will name a new prosecutor friendly to the court's goals. One sign that Bloomberg endorses the court's approach is that he tapped Center for Court Innovation director John Feinblatt to join the city administration as criminal justice coordinator.

The Center for Court Innovation, which started the nation's first community court in midtown Manhattan in 1993, has led the way in creating alternative courts nationwide. But, while alternative courts for adults have become accepted in the last decade, alternative courts for juveniles are still very much works in progress.

In addition to the court in Red Hook, the city is also experimenting with a juvenile court in Central Harlem that works on the same principle as drug-treatment court: a system of frequent court appearances, monitoring and graduated sanctions for non-compliance. "In Harlem, there was a specific grant from the federal government to create a juvenile intake court based on a drug court model" said Alfred Siegal of the Center for Court Innovation.

The youngsters who go through the Harlem court will receive "intensive contact and monitoring," said program director Jimena Martinez. In addition, drug-treatment provider Phoenix House will run on-site programs geared towards adolescent marijuana users.

The juvenile court in Harlem opened this January and has so far arraigned just one youngster, with seven more cases "in the pipeline," according to Martinez. As with the court in Red Hook, those numbers might increase with a personnel change in the prosecutor's office.

In the last year, Calabrese has sent to juvenile jail only one child out of the 10 youngsters who have come before him. By contrast, judges in regular family court sent more than 5,000 adolescents to detention out of some 9,000 cases -- although some of that difference comes from the fact that Red Hook doesn't handle the most serious cases.

The juvenile court in Red Hook only accepts cases where the police have released the child to a guardian after arrest, which happens roughly 80 percent of the time. In the other 20 percent of the cases, police take the youngsters directly to a juvenile jail, either because of the seriousness of the charges or because the parents don't come to the precinct to pick up their children.

Still, many juveniles eligible for the court in Red Hook are not prosecuted there as of yet -- a situation the court's acting director Robert Feldstein is hoping will soon change. Red Hook offers juveniles and the judge, "better information, better options, better accountability," said Feldstein. "We can do things better."

 

Aiming High-Tech, Ivy Recruitment


The police department has become famous worldwide for its successful, computer-driven assault on crime, but when detectives file their investigative reports, they do so in triplicate, using carbon paper. In its daily work, as Police Commissioner Ray Kelly sums it up, his department has no internal email, no computer network, no access to sophisticated outside data bases. It is like a Porsche with the engine of a Volkswagen.

The whole system is inadequate, said Kelly, speaking at a lunch sponsored by the Manhattan Institute at the Yale Club. Those triplicate files that detectives create, DD5 forms, are sent to three separate offices--precinct, command, and borough--where they are stored in standard file cabinets to be retrieved manually when needed. Kelly paused for a moment to let it sink in that the data contained in those cabinets is essentially inaccessible.

The drive of analytic policing today, particularly in combating terrorists, is to connect the dotted lines, to pick up the relationships among seemingly disparate occurrences. Terrorist cells, noted Kelly, often finance crimes through petty crime, such as breaking into cars, identity theft, burglary. Since September 11 the details of certain petty crimes have developed an importance out of all proportion to the individual crime itself.

Kelly knows what technology can do for routine productivity because he had it in his last few jobs, including as head of the U.S. Customs Service. The New York Police Department needs a computer system, he argues, that allows "all case information to be entered in one data base for cross checking." Customs uses the Treasury Department's Treasury Enforcement Communication System (TECS), which links all the Treasury enforcement bureaus with one another, including Customs, the Secret Service, and the Bureau of Alcohol, Tobacco, and Firearms. TECS may still be 1980s technology, says Kelly, but it is leagues ahead of the New York Police Department. Customs is now exploring an Internet-driven investigative database that would permit the storage of surveillance footage, wiretaps, and interviews together in a digital file.

The other half of the technology problem is, as always, personnel: "We need our senior people to have the basic tools and technologies needed to lead any organization today."

There's no easy fix for this, but one route is more sophisticated recruitment.

RECRUITING AT THE IVIES

Interest in police work is at an all-time high, and the NYPD is at the top of the food chain. Mayor Bloomberg's 2003 budget calls for a reduction of 1600 police officers, though Kelly seems to regard that as something of a phantom number. He says that 40,110 officers is the "preferred head count," and that the NYPD is now down to 38,000 through attrition. Its target is to have 39,000 officers on July 1 of this year.

The department is trying to make it easy to apply. The application form is online and it's free. Kelly thinks New York is the only major metropolitan police force in the nation to do this.

They are also sending recruiters to schools that have never seen NYPD recruiters before, such as Harvard, Yale, and Columbia. According to the New York Times, the effort was not very successful ("Police Recruiters Draw Little Interest, Good or Bad") at Columbia. Himself a graduate of the JFK School of Government at Harvard, Commissioner Kelly says the recruitment campaign is as much symbolic as substantive. Which is a judicious position to take since, as the Times points out, the NYPD's starting salary of $31,305 is less than the annual cost of attending Columbia. Rather like trying to buy a Porsche at a Volkswagen price.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Cutbacks and Checkpoints


CUTBACKS

In the post-September 11 world, the New York Police Department has already lost hundreds of experienced officers to death, retirement, and private sector jobs. Now Mayor Bloomberg comes along and, facing a $4.7 billion budget gap, proposes reducing the force by 1,600 officers to save money. He intends to do this by not replacing the officers who have left the department in the last few months. There are, of course, many objections to using attrition alone to reduce a labor force, not the least of which is that attrition deprives management of discretion. As Bloomberg himself has noted repeatedly, the private sector's demand for good New York cops is likely to go up, not down. Meanwhile, the department's low starting salary of $31,305 impedes recruitment.

This would not be a bad time for Commissioner Raymond Kelly to bring back zero-based budgeting--the budgeting theory from the 1970s that urged policy makers to return to zero each year, building up their budgets and management structures completely fresh. Many expenditures should now be reconsidered. For example, how many former city officials have police protection? Former Police Commissioner Howard Safir had round-the-clock protection from two detectives until he was quietly asked to relinquish this perk by the Bloomberg administration. Who else, no longer on a government payroll, is protected? Every such expenditure should be scrutinized.

Similarly, all deployment of police officers to caretaker jobs should be examined. Should police officers patrol street fairs, for example? Parades? Community events? And if they are on duty, should they simply stand around, as was the custom under previous administrations?

Should another push toward civilianization be undertaken? Are there NYPD jobs--receptionists, clerks, phone operators--now held by police officers that would be more suitably handled by civilians?

TALE OF TWO CHECKPOINTS

Former prosecutor that he was, Mayor Rudy Giuliani regularly used the courts as a second front in his war against crime. Even when he lost, his litigiousness bought him time.

Among his most controversial tactics were his traffic checkpoints, which he used for all sorts of purposes--stopping drug traffic, checking for seat-belt use, looking for unlicensed or drunk drivers. Now a state judge has ruled that police checkpoints set up to screen traffic on high-crime blocks are unlawful because cops are subjecting citizens to illegal searches and seizures. The decision specifically declares unconstitutional the NYPD's Model Block Program, by which the police barricaded the ends of target blocks and stopped vehicles, asking to see driver's license, registration, and proof of insurance. Only drivers who lived on the block, had business there, or who were visiting family were allowed to enter.

In People v. April Pope, Acting Bronx Supreme Court Justice Robert Cohen ruled unconstitutional an NYPD stop of a vehicle at the corner of West 174th Street and Grand Avenue, where a checkpoint had been set up to counter prostitution and drug dealing. When an officer was unable to find April Pope's licence number in computer records, she admitted that the license was fake and that her license had been suspended. She was arrested.

Citing a November 2000 U.S. Supreme Court decision, Indianapolis v. Edmond, Judge Cohen said the New York program was similar to the Indianapolis checkpoint program, whose primary purpose was to find illegal narcotics. This, said the Supreme Court, was an infringement of a motorist's Fourth Amendment rights because the vehicle stops were not based on individualized suspicion of criminal activity.

Judge Cohen wrote that, "Although laudable in purpose, the checkpoint program at issue is ultimately for the purpose of crime control." Crime control did not meet the limited exceptions set forth in by the Supreme Court.

Commissioner Kelly said the NYPD was still reviewing the decision, which would not "immediately affect" the program. He added that checkpoints are nearly always set up at the request of the community.

Judge Cohen apparently thinks he's speaking for the community in his decision since he wrote that, "The impact of this program upon all citizens in this neighborhood is egregious and violates the Fourth Amendment." Who's right, Kelly or Cohen, about what the neighborhood wants?

OTHER CHECKPOINTS OKAY

In a second U.S. Supreme Court case cited by Judge Cohen, Delaware v. Prouse (1979), the court virtually invited state and local governments to introduce another kind of checkpoint--one that questions "all oncoming traffic at roadblock-type stops." This case proved useful to the Giuliani administration when model block checkpoints were criticized by some neighborhood activists in 1999 just as issues of racial profiling by police were heating up. Deflecting criticism that checkpoints were only used in minority neighborhoods, Giuliani quietly instituted a new kind of checkpoint--one that blocked, stopped, and questioned all incoming traffic in neighborhoods without high-crime rates. The East Side's Third Avenue, for example, became a frequent checkpoint in which cops said they were looking for things like seat belt violations. This in effect had been pre-approved by the Supreme Court.

Drivers caught in such checkpoints--which caused massive traffic jams and hour-long delays--were often furious by the time they reached the front of the lines and were casually waved on by the cops. Doubtless such New Yorkers would enjoy the Delaware v. Prouse dissent written by Chief Justice Rehnquist: "Because motorists, apparently like sheep, are much less likely to be 'frightened' or 'annoyed' when stopped en masse, a highway patrolman needs neither probable cause nor articulable suspicion to stop all motorists on a particular thoroughfare, but he cannot without articulable suspicion stop less than all motorists. The Court thus elevates the adage 'misery loves company' to a novel role in Fourth Amendment jurisprudence."

The New York Police Department now faces the odd situation of having had its crime-related checkpoint--the Model Block Program--declared unconstitutional, while the checkpoint concerned with trivial matters like seat belt violations is just fine with the courts.

What Kelly will do with this is anyone's guess. It was never clear that the general checkpoints, like the ones on Third Avenue, served any legitimate police purpose. Such checkpoints should be relegated to the past. The checkpoints in high-crime areas are more difficult. The city will surely appeal Judge Cohen's decision, but the question is ultimately as much a policy issue as a legal one. Were these checkpoints effective in reducing drug traffic and violent crime? Were they supported in their neighborhoods? Did residents feel their rights were infringed? Is this intense use of police personnel efficient?

Since the legal distinction drawn by the court is one of universality--you can set up a checkpoint and stop absolutely everybody constitutionally--the city can keep the Model Block Program if it chooses. It just has to make sure that absolutely everyone coming into the neighborhood is stopped--and inconvenienced.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Crown Heights


When Ray Kelly was sworn in as police commissioner the first time on Nov. 10, 1992, his new job was darkened by the horror of Crown Heights. Barely two weeks before, a Brooklyn jury had handed down a verdict acquitting Lemrick Nelson, a young black man, of the murder of Yankel Rosenbaum, a young Hasidic student. The jury concluded that Nelson had been framed by a racist police force.

The terrible story still shocks. A car in an unofficial motorcade to a rabbi's gravesite ran a red light on Aug. 19, 1999, went out of control, and struck two black children, killing one and seriously injuring the other. A black mob formed and rampaged through the streets, assaulting people, burning cars, and looting stores. During the riot, a visiting Hasidic scholar, Yankel Rosenbaum, was pulled from his car, beaten, and stabbed. He identified his attacker, and died at the hospital.

Despite the victim's identification and his own confession, Lemrick Nelson was acquitted of murder by a jury of six blacks, four Latinos, and two whites in a New York State Supreme Court trial in Brooklyn. (The jury held no Jews.) Nelson's lawyer had hammered away at small discrepancies in the stories of the nine cops, eight of whom were white. He put the justice system on trial, and the jury went with his theory that a racist police force had framed the nice-looking young man. The identification was disregarded as prompted, and the confession as coerced--the defense theory.

At the urging of New York officials, including Brooklyn prosecutor Charles Hynes, the federal government brought charges of civil rights violations against Nelson and another man, Charles Price, who was accused of inciting the mob to violence. The federal trial after the state acquittal raised some hackles about double jeopardy, but was not controversial for long. Under the Reconstruction-era Civil Rights Act of 1870, the federal government can on its own try cases in which a federal interest--such as a civil rights violation--has not been vindicated in court due to a nonexistent, cursory, or bungled state prosecution.

In 1996 both Nelson and Price were convicted by a racially mixed jury in federal court of violating Rosenbaum's civil rights by singling him out for his religion.

CROWN HEIGHTS ONCE AGAIN

On Jan. 7, 2002, a week after Ray Kelly was sworn in as police commissioner a second time, the U.S. Court of Appeals (2nd Circuit) vacated the Lemrick and Price convictions. At first glance, this looks like one of those nightmare American legal situations in which a procedural error has undermined a just verdict. Two violent men, convicted of heinous crimes, may be released from prison because a judge made a mistake during trial.

Pretty much everyone seems to agree that the defendants were guilty of the crimes charged, and that the verdict was substantively correct. The Court of Appeals itself said "The evidence was sufficient" and "overwhelming" that Nelson stabbed Rosenbaum, and that Price "transformed" the mob "into an explosive mass" to hunt down Jewish victims. (Price was seen on videotape yelling, "Let's get the Jews" and "Eye for an eye. No justice, no peace.")

And everyone also agrees that a serious procedural error occurred during the trial. The error was that federal Judge David Trager "jurymandered," that is that he deliberately and systematically empanelled a jury according to his standards of the proper racial and religious composition. He was straightforward about his goals. "I have an agenda here," he said, "which I have made clear from the very beginning, to end up with a jury that represents the community [and] that will have moral validity." He went so far as to warn that if there were a hung jury, "that itself will be a statement to both sides about both what is the process and [what] the problems are with our society."

But in the words of the Court of Appeals, Judge Trager manipulated jury selection "to prevent the final jury from containing too many African Americans and too few Jews." He did this for the best of reasons--to ensure, in his words, "a moral jury that renders a verdict that has moral integrity." This high motive is consistent with the Constitution, whose framers saw the jury as both a protector of individual rights and a means of ensuring communal support for judicial procedures. The jury trial is the nation's chief means of ensuring that the morals and standards of the community will be heeded in criminal proceedings.

So Judge Trager was not wrong in seeking a moral jury that would render a moral verdict and satisfy community standards. Where he went wrong was in choosing jurors by race and religion, including a Jewish juror who warned repeatedly that he wasn't sure he could be fair. This, said the Court of Appeals, was evidence of "actual bias," that simply could not be permitted to stand.

What is to be done? Two men were convicted by a jury selected for race and religion, improper under constitutional principles. As remedy, the Court of Appeals has remanded the case to the district court for a new trial before a "properly selected, impartial jury." Lawyers for Nelson and Price are now preparing legal arguments that their clients should be released from prison while awaiting new trial.

But Justice Charles Straubb, who dissented, has a better idea: affirm the convictions both because they were correct and because the defendants and their lawyers repeatedly acquiesced in the composition of the jury, trading black jurors for Jewish jurors. "The Constitution does not require," says Justice Straubb, "that we reward defendants for constitutional violations in which they themselves participated."

He points out that the courts do not permit defendants to challenge evidence which they themselves introduced, or challenge the admissibility of hearsay statements of a non-appearing witness when the defendants themselves prevented the witness from appearing. These defendants, argues Straubb, do not deserve a second trial given their own conduct.

What will the Justice Department do? It can appeal to the U.S. Supreme Court. It can prepare for a new trial, 11 years later. The practical problems of witnesses and evidence would be enormous.

Or it can return to the Court of Appeals, asking that all 12 justices hear the case, and arguing that Justice Straubb's dissent was right. The prosecutors will be reluctant to do this because it is bound to annoy the court. Though seldom taken, this route is the right one.

Meanwhile, Commissioner Kelly faces the same problem in 2002 he faced ten years ago: building a racially and ethnically diverse police force to serve and protect his racially diverse city.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Crime Still Declines, But Why, And Will It Continue?


In 1993 Mayor Giuliani's first police commissioner, William Bratton, announced their determination to take back the city: "We will fight for every street. We will fight for every borough." They fought and they won. Having last month hammered down temporary crime spikes one final time, Mayor Giuliani left office triumphantly on January 1, saluting his people like an exiting Roman general.

His parting gifts included yet another record decrease in violent crime--down 12.4 percent through mid-December 2001 from last year. All categories (murder, rape, robbery, felony assault, burglary, grand larceny, and auto theft) declined, ranging from fie percent for murder to 16 percent for auto theft. In mid-December, the city had recorded 617 murders, compared with 651 through mid-December last year, and 672 for all of 2000. And despite several notorious killings, 2001 is expected to set yet another record low in police shootings of civilians.

MAYOR GLOATS

In his farewell speech, Mayor Giuliani took a moment to refute the conclusions of a March 4, 2000, New York Times story that heralded Boston's and San Diego's police strategies as "national models" for combining the crime reductions of New York with the community involvement that was lacking here. Many police chiefs and criminologists, said the Times, felt "a sense of sadness that a great opportunity has been squandered" here.

Over the last six months, said Giuliani, crime jumped 3.9 percent in San Diego while declining 7.6 percent in New York; the murder rate increased 67 percent in Boston while dropping 12 percent here. Overall Boston has 82 percent more crime and San Diego 16 percent than New York, the mayor calculated. "Which policing policy would you want to follow?" he asked. Or as the New York Post said, "It would be a crime not to gloat a little."

DO POLICE MATTER?

Exactly why so many people have stopped committing crimes remains a matter of contentious dispute, say George L. Kelling, Senior Fellow at The Manhattan Institute for Policy Research and William H. Sousa, Jr., Director of Evaluation, Police Institute, Rutgers University. In a recently released report, "Do Police Matter? An Analysis of the Impact of New York City's Police Reforms," Kelling and Sousa argue that there has been no systematic attempt to statistically parse out the relative contributions of police actions, the economy, demographics, and changing drug use patterns on crime. This they set out to do.

By measuring crime trends in individual precincts, they conclude that the decline in violent crime correlates with arrests for misdemeanors--and that for every 28 misdemeanor arrests, the city had a decline of one violent crime. In other words, they conclude that what's called "broken windows" policing--the strategy of policing minor disorderly behavior like graffiti or fare beating in the subways--is strongly associated with the decline in violent crime. They also argue that at least on a precinct-by-precinct basis there is no association with the major competing explanations for crime reduction, such as the improved economy and labor market that created opportunities for youths previously tempted by drug dealing, the declining use of crack cocaine, the changing values of at-risk youth, and the increased legitimacy of social institutions such as the family.

While commending broken windows policing, Kelling and Sousa argue that an overlooked key to New York's crime reduction rests in a specific problem-solving strategy: accurate and timely intelligence, rapid deployment, effective tactics, and relentless follow-up and assessment. Precinct commanding officers are able to address and correct current crime problems immediately by combining timely analysis with proven and innovative crime-reduction techniques, including the ability to deploy patrol, detective, and specialized precinct units for crime control, rather than having to rely on centralized special units.

BUT PROBLEMS REMAIN

Still, the new police commissioner, Ray Kelly, has his work cut out for him. As George Kelling says, "The big drops--15 percent and more--have taken place. Now we're working on the margins."

And that's not all. Despite its many achievements, the Giuliani administration has left minefields for the Bloomberg administration.

Right before Christmas Commissioner Bernard Kerik announced 227 last-minute and generous promotions in the police department. Not only do the promotions entail immediate budgetary implications, they increase the likelihood of expensive retirements since police pensions are based on the last year's salary.

Meanwhile, an organization called 100 Blacks in Law Enforcement Who Care, representing black police officers, announced it was suing the city, saying the Police Department had secretly and illegally monitored its political activities by reviewing telephone records and following members in order to intimidate officers who had been critical of the department.

A Giuliani-appointed commission, the Commission to Combat Police Corruption, found that increasing numbers of rookie cops have faced disciplinary problems. Disproportionate numbers have also been flunking out of the Police Academy--the failure rate of the September 2000 class was twice that of the 1997 class. The cause of both problems may be lower recruiting standards.

Kelling, for one, is hopeful, however. He makes three points about the future. First, if Giuliani is right--and Kelling thinks he is--he has shown that crime reduction doesn't have to be held hostage to economic change or, indeed, any holistic societal reform.

Second, in his first term as police commissioner Ray Kelly devised the plan for dealing with squeegee men that subsequently became the cornerstone of the Giuliani-Bratton assault on quality-of-life offenses. "There's every reason to assume," says Kelling, "that we're going to be fortunate in having Kelly. He will maintain, even intensify, the quality-of-life campaign."

Third, the critical policing problem is going to be balancing vigilance against terrorism with the needs of street policing. But even here Kelling is hopeful, arguing that under Commissioner Kerik the police department had started developing good relationships with neighborhoods and communities. "The same vigilance we're going to need in the frontline battle against terrorism," says Kelling, "is the vigilance that helps the police become aware of bad things happening in neighborhoods." In other words, the collaboration with neighborhoods will be crucial both to the war on crime and the war against terrorism.

And since Ray Kelly made his reputation the first time round by working well with neighborhoods, Bloomberg probably has the right man for the job.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury. 



Print Friendly and PDF

Editor's Choice


Gotham Gazette: Cuomo Heads Into State of the State After Big Announcements, With More to Say Cuomo Heads Into State of the State After Big Announcements, With More to Say Gotham Gazette: What To Do When The L Train Closes What To Do When The L Train Closes Gotham Gazette: To Eradicate Sex Trafficking, Prosecute the Pimps and Buyers To Eradicate Sex Trafficking, Prosecute the Pimps and Buyers Gotham Gazette: Concerns of ‘Voter Fatigue’ as New York Schedules Four 2016 Election Days Concerns of ‘Voter Fatigue’ as New York Schedules Four 2016 Election Days


Comments
Comment(s)

The comments section is provided as a free service to our readers. Gotham Gazette's editors reserve the right to delete any comments. Some reasons why comments might get deleted: inappropriate or offensive content, off-topic remarks or spam.