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.
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.
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.
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."
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.
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.Â
"Crime spikes," headlined the New York Post in late November. "Crime spurt," said the New York Times. Spike or spurt, crime is suddenly up. The four weeks ending Nov. 25 saw a 36.7 percent jump in shootings and a 25 percent increase in murders compared with the same period a year ago.
So even though the Giuliani administration is about to exit with yet another record yearly decline in violent crime, the last few weeks have not been good. It's clear that we're going to need a great police commissioner. Do we have him?
By just about any criterion, Ray Kelly is almost surely the best-qualified police commissioner in New York City history. He had the job once before--from October 1992 until January 1994 under Mayor David Dinkins--and he was well qualified then. A former Marine colonel who had served in Vietnam, he graduated first in his class in the Police Academy in 1960, and then worked his way through 25 different commands over the next 31 years.
He went on from the NYPD commissionership to important jobs in the federal government and the private sector. He served as director of the International Police Monitors struggling to modernize the police force in the Republic of Haiti from 1994 to 1995. From 1996 to 1998 he was undersecretary for enforcement at the U.S. Treasury Department, and from 1998 to 2001 he was commissioner of the U.S. Customs Service.
Today he oversees the New York State commission that regulates boxing, and is global head of corporate security at Bear Stearns, the investment banking firm. (In accepting the police commissionership he gives up $450,000 a year in salary and generous benefits, for a job that pays a little more than a third of that.)
He has strong educational credentials--a bachelor's degree from Manhattan College, a law degree from St. John's University School of Law, a Masters in Law from New York University, and a Masters in Public Administration from Harvard.
He even looks like a cop.
So with the exception of a few churlish talk radio hosts who called him "Jelly Kelly," saying he was weak on crime--which nobody else really believes--most commentators were quick with lavish praise. Newsday's Robert Reno, for example, wrote that the choice of Kelly "was a Periclean act because there are people who regard Ray Kelly as someone as close as we come to a secular saint in this city, the man responsible for the decline in crime that has made it a more livable place, a figure who never confused histrionics with good police work and who served loyally in the Clinton administration." Pericles and sainthood in one sentence. The guy looks good.
Still, most New Yorkers want an answer to a simple question: How did he do the last time?
The answer is pretty well. For one thing he had a bit of luck. The national decline in both violent crime and property crime began in 1993 in the early months of his commissionership. He helped spur the decline in New York by instituting the Safe Streets, Safe City program and putting thousands more cops on the streets. (In 1990, after the shocking murder of a tourist in the subway, Mayor Dinkins got funding for an additional 6000 cops with an income tax surcharge.) Kelly believed in Broken Windows policing--taking care of minor signs of disorder so they don't become major. He initiated the campaign against the squeegee men, according to former commissioner William Bratton's biography, which subsequently became the linchpin of Giuliani's crime-fighting strategy.
Chris Stone, executive director of the Vera Institute of Justice, says every police commissioner faces a double bind. To succeed, a commissioner has to be both accountable for crime and accountable for the conduct of his officers.
Kelly staved off failure on both without fully succeeding on either the first time. In his first term, Kelly demonstrated his interest in the details of crime prevention, in particular getting the murder rate down from its 1990 mid-Dinkins administration historic high of 2,254. When Kelly left in 1994, the crime data showed 1,927 murders for the previous year. This pales before subsequent Giuliani administration achievements--including Commissioner Kerik's correct prediction last year that the city's murder rate would dip below 500--but it was a ray of hope at the time.
Kelly also staved off failure on police conduct. After a corruption scandal erupted in the Internal Affairs Bureau he successfully restructured it--or at least restructured it enough to hold critics at bay.
But this is a decade later. How is he likely to do now?
Kelly knows the NYPD well. Chris Stone recalls that Lee Brown (Kelly's predecessor as police commissioner) once said that you can't learn the department on the job. The cocoon of the commissionership is so complete that anyone who doesn't know the department already will have a very hard time getting a hold on it.
And New Yorkers want a commissioner who has hold of the department. Kelly's history has been to take charge while maintaining the loyalty of those who work for him. Paul Browne, an assistant police commissioner under Kelly who went on to work with him in Washington and Haiti, told the New York Times about his many hairy experiences alongside his chief: "You just knew he was there. He didn't, like, wait in the jeep, you know."
Kelly was a Marine before he was a cop, and Marine officers don't wait in the jeep. Marine officers stay with their men, says J. Robert Moskin, author of The U.S. Marine Corps Story. "The Marine officer," notes Moskin, "says 'follow me,' not 'go there.'" While this is the ethic of the New York Fire Department, it hasn't been the ethic of the NYPD, whose officers tend to be more of the go-there school of management. Kelly's ethic should be helpful.
There is no mystery about what New Yorkers want. They want a safe city without ugly police-civilian incidents -- a safe city in which citizens are treated well. Will Kelly be able to deliver?
Certainly he knows how to say the right things. At the announcement of his appointment he promised: "There'll be no letup in the Police Department's aggressive suppression of crime and disorder. That means we will use proactive policing policies and practices to ensure that the law-abiding people of this city are not robbed of their sense of security by panhandlers and minor quality-of-life offenses."
But what about race?
As commissioner, Kelly demonstrated substantial sensitivity on racial issues, and was well-known for spending Sunday mornings travelling to black churches to recruit black NYPD candidates. Since only 10 percent of police officers today are black in a city that is 28 percent black, he is going to need that sensitivity over the next few years.
Race, however, is also the source of the one persistent criticism of Kelly--his handling, as deputy commissioner under Lee Brown, of the 1991 Crown Heights riots. A 1993 state commission investigating the riots gently criticized Kelly for not seeking "an active role" until three days after the trouble started. Cops stood by, and the higher-ups did nothing. Eventually Kelly ordered cops to take control of the Brooklyn streets, but well after enormous damage had been done. In a 1993 television interview, Kelly blamed Brown, saying the "buck stops at the top of the department." Brown should have given specific orders to commanders, he said.
Now the buck will stop with Kelly.
Ray Kelly has federal credentials in spades, far more than has any other commissioner in history. He is going to need them as the NYPD jockeys with the FBI and the federal Department of Justice over jurisdiction. Terrorism is uppermost in everyone's mind even as low-level crime is making its way back to local streets. Cooper Union historian Fred Siegel argues, "In a time in which the distinction between war and crime has narrowed, Kelly has already worked in positions in which he had to deal with this reality. Given that we're a target in New York, it's a huge asset that he's in a good position to make a difference."
Still, says Siegel, the real test of Kelly's commissionership is likely to be local: how will he react when the first ugly racial confrontation between police officer and citizen occurs?
If he is really lucky and really good, that may not happen for a very long time.
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.