The aftermath of the fatal police shooting of Sean Bell in November both mirrors and contrasts with the case of Amadou Diallo, an unarmed African immigrant killed in the Bronx in 1999.
New York City was quickly gripped by the Diallo case, in which police officers shot at an unarmed man 41 times. A racially charged atmosphere led to protests that resulted in over 1,000 arrests, including those of several high-profile politicians. Lawyers for the police officers asked a state appeals court to move the trial to Albany. The court agreed. There, a jury in which eight of the twelve members were white acquitted the four white police officers of wrongdoing.
Bell's case is similar: 50 shots were fired at Bell and two friends, all unarmed. Protesters have raised questions of racial profiling and police brutality. And talk has turned to whether there will be a change of venue. Defense lawyers have not yet asked for a change of venue in this case, although they may still do so. They owe their clients the best defense possible, and if a change of venue would help the defense, they should make a case for it.
But many, including Mayor Michael Bloomberg, say that this trial should be held in New York City. I agree that moving the trial was a bad decision in the Diallo case, and it would be a bad decision in this case. Instead, there are obvious steps that can be taken to ensure a fair trial in Queens.
Changes of venue are rare. A lawyer who makes the application has to submit compelling reasons for it. Among the factors are convenience for witnesses or overheated publicity or religious or racial prejudice in an area that would convince a judge that a fair trial could not happen in the county where the crime has occurred.
Sometimes this is appropriate. Let's say you have a large rural county with a population of 10,000, and a case came up involving the local high school principal who had been there 40 years. Everybody might know that person, or even have a relationship with him or her. In that situation, a change of venue may be appropriate.
In most cases, though, the American justice system is based on the idea that if a crime occurs in a certain jurisdiction, the jury should come from the same area. A jury trial is supposed to be a trial by one's peers, such as their neighbors. Local juries are also preferable because, in theory, people in the same physical area form a community, and they have a particular interest in making sure that justice is served.
In New York, changing venue becomes an issue not because everyone personally knows the people involved, but because everyone knows about the case. Media attention does not preclude the possibility for a fair trial, however. New York City has always had high profile cases, from the 1930s when Tom Dewey was prosecuting Lucky Luciano to the big drug cases, to the organized crime in federal court, to the trial of the police in the Abner Louima case. All of those cases were tried in New York City without difficulty.
In the Diallo case, defense lawyers were of the opinion that given the publicity, circumstances, and emotions in the Bronx, their clients could not get a fair trial. Based on a poll of prospective jurors, the Supreme Court Appellate Division in New York agreed. The court never even made an attempt to seat an acceptable jury, even though they would have had to find only 12 jurors and six alternates out of the 1.3 million people living in the Bronx.
In addition to being unnecessary, the change of venue probably raised racial tensions even higher. The overwhelming majority of the judges who made the decision to move the trial were white, in an area where the majority of the population is black and Latino. As a result, a lot of minorities felt that the decision stunk to high heaven.
The Bell case raises many of the same issues.
One argument that has been made is that the jury pool was poisoned by Mayor Michael Bloomberg's early statement that the shooting seemed unacceptable. Public officials should give such opinions; that is just good leadership. To suggest that a jury will not be able to make up their own minds because of that is insulting to the intelligence of New Yorkers.
The other argument is that the general publicity and the politics around the case have made it too heated. But consider the alternatives. In Queens, you have a population of 2.2 million people from which to choose a jury. Yes, many people have been exposed to media coverage of the Bell case. But given the far reach of the news media, who hasn't heard of it? If the trial were moved out of Queens, it would likely take place in a jurisdiction where the jurors knew just as much about the case, and where there is smaller jury pool than Queens.
Short of changing the venue, there are things that can be done to safeguard a high-profile trial. State courts have sequestered juries during deliberations or throughout trials in the past, although for budgetary reasons that is rarely done today. The court could also bring in more potential jurors, and spend more time in jury selection.
In short, there is no reason that a fair and impartial jury cannot be selected in Queens. It might take a bit longer. But to administer justice, you take the time.
Kenneth Ramseur is an attorney in New York City who often works on police cases. He represented the family of Timothy Stansbury, who was killed by a police officer in 2004.Â
The tragic shootings of Auxiliary Police Officers Nicholas Pekearo and Yevgeniy Marshalik have raised questions about a lesser known part of the New York City Police Department, a 4,500-member, all-volunteer force that conducts foot patrols, inspects subway platforms for suspicious packages and helps with crowd control at major public events such as the New York City Marathon.
The auxiliary officers wear uniforms almost identical to those worn by regular police officers and are assigned nightsticks and police radios. However, they are not issued bulletproof vests and are not allowed to carry weapons, unlike the Los Angeles County Sheriff’s Department, which issues a gun to its 700 Reserve Deputies (who are also unpaid volunteers). The auxiliary police also do not have the power to arrest anyone. Instead, they are trained to report crimes in progress on their police radio and wait for reinforcements to arrive.
After the shootings, New York City Police Department Commissioner Raymond Kelly announced the creation of an in-house committee to study ways of improving the auxiliary police force. City Councilmember Hiram Monserrate announced that he would introduce legislation requiring the city to purchase bulletproof vests for auxiliary police officers. Councilmember David Weprin proposed a "10-point Auxiliary Officers Assistance Plan" which calls, among other things, for increased penalties for attacking Auxiliary Officers. In testimony before the City Council, Commissioner Kelly said the police committee on auxiliary police will seriously consider Monserrate’s proposal.
This is just one of a number of issues the committee will explore, involving how auxiliary police officers are trained, deployed, supervised...and protected.
The auxiliary police force grew out of Cold War fears about nuclear war and was created in 1951 in response to the federal government’s call for a cadre of civil defense volunteers who would usher citizens into fallout shelters and help calm public panic.
In 1967, full responsibility for the auxiliary police was given to the New York City Police Department. The force’s mission shifted to crime control during a time of historic crime highs for the city.
Today, auxiliary police officers, who must be between the ages of 17 and 60 (older volunteers are still eligible to perform light office duties), complete more than 50 hours of training and are required to work at least 10 hours a month. For the most part, they patrol in squad cars, on foot and on bicycle, serving as a visible police presence.
In some police precincts, the auxiliary police serve a critical role as a liaison between the police and the community. For example, the Fifth Precinct in Chinatown has a thriving auxiliary police unit with 143 officers, more than any precinct, led by longtime volunteer Shuck Seid, who started the unit in 1969 because of his concerns that Chinatown residents were afraid to report crimes to the police. “When I started the auxiliary unit, there was only one Chinese police officer in the precinct,” Seid explained in an interview with the Downtown Express in 2004. “In Chinatown, there were robberies, rapes, all kinds of crimes happening to immigrants, and the Chinese didn’t want to be witnesses or to report things to the police.”
The New York City Police Department also turns to the auxiliary police when it needs help with large public events or training events. At Shea Stadium in 2004, about 1,000 auxiliary police officers and Fire Department cadets served as fake victims during a mock terrorist attack. Fears of a terrorist attack have also re-focused the mission of the auxiliary police: two weeks after the London subway bombings, a new transit auxiliary police program was created to assist the police in periodic inspections of subway platforms.
On the night of the shooting, Officers Pekearo and Marshalik were fulfilling the bread and butter mission of the auxiliary police, walking along Sullivan Street in Greenwich Village when their police radios crackled with reports that a gunman had just exited DeMarco’s Pizza on Houston Street, only a few blocks away.
Nineteen year-old Marshalik, a sophomore at New York University who enthusiastically worked several weekly six-hour shifts at the Sixth Precinct, and 28-year old Pekearo, an aspiring novelist, spotted David Garvin coming toward them and ordered him to stop. Garvin responded by punching one of the auxiliary officers in the face and then crossed to the other side of Sullivan Street, running north and reloading his gun. Marshalik and Pekearo gave chase from across the street, with Pekearo in the lead and Marshalik behind him. Blocked at West Third Street by three regular police officers, Garvin turned and shot both Pekearo and Marshalik and then engaged in a running gun fight with officers before he was killed.
The obvious policy issue that Commissioner Kelly will confront is safety. Including Officers Pekearo and Yevgeniy, eight auxiliary police officers have been killed since the program’s creation.
Some auxiliary police officers, like Officer Pekearo have used their own money to purchase bulletproof vests, which cost between $600 and $700. (After a year of service, auxiliary police officers receive a uniform allowance of around $300, according to the New York Times.) In Pekearo’s case, the vest stopped one of the six bullets fired at him, but could not save his life. Commissioner Kelly indicated they he would consider purchasing bulletproof vests for auxiliary police officers, at an estimated cost of $3 million.
Clearly, the visibility of auxiliary police officers, whose uniforms and badges make them virtually indistinguishable from regular police officers, poses a safety risk. “The average street criminal on the run has no idea if an officer is auxiliary or not,” Steven Weiss, director of research for the Officer Down Memorial Page, told the New York Times. Yet high visibility, and the deterrent effect that goes along with it, is one of the main benefits of the program.
Outfitting the auxiliary police in vests, and even providing them with guns or mace as has been suggested, may seem like a solution to the safety problem, but it poses its own risks. With such equipment, auxiliary police officers, contrary to their training, could feel encouraged to engage in high-risk activities, such as pursuing suspected criminals.
There are practical considerations to consider as well. In Los Angeles, reserve deputies are fingerprinted and given an extensive background check, including a psychological exam, before being invited to join. Los Angeles Reserve Deputies are also given the authority to make arrests, further blurring the lines between a “volunteer” and “regular” police officer and eroding the justification for the program, which is to provide a low-cost boost to the New York City police force.
An alternative approach might involve making clearer distinctions between the appearance and duties of auxiliary police officers and regular police officers. For example, auxiliary police officers could be outfitted in a differently colored uniform, which might reduce the chance that they would be placed in harm’s way. A more radical solution would be to remove auxiliary police officers from foot patrol duties entirely or require that they be paired with regular police officers at all times. Of course, this might not only reduce the effectiveness of the auxiliary police, but also discourage volunteers from joining in the first place. Regular police officers might also resist the idea of being paired with auxiliary police officers, particularly if the auxiliary police are unarmed and unable to provide support in a dangerous situation.
As Commissioner Kelly weighs the tradeoffs between visibility and safety, effectiveness and limiting the program’s scope, the mourning for Officers Pekearo and Yevgeniy goes on. Both received an inspector’s funeral reserved for officers who have died in the line of duty, with hundreds of uniformed police officers in attendance.
A friend of Nicholas Pekearo remarked: “He would have gotten a kick out of getting full police honors.”
Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system’s approach to low-level crime. Â
In his annual State of the City address last month, Mayor Michael Bloomberg announced that the city will begin to equip 911 call centers “to receive digital images and videos from cell phones… If you see a crime in progress or a dangerous building condition you'll be able to transmit images to 911, or online to NYC.GOV,” making it easier for police to identify the criminal (or the landlord) later. The mayor envisions similar technology for non-emergency calls to 311, which would allow New Yorkers to document visually the quality of life concerns in their neighborhoods.
The mayor introduced this proposal as a way to “build stronger cooperation between the public and the police,” through “empower[ing] more New Yorkers to step forward and join the fight against crime.”
Following the speech, criminal justice coordinator John Feinblattt said this will be a “multi-year effort to bring law enforcement into cyberspace,” but there was no mention of a specific timeline, specific budget allocation, or a vendor.
Mayor Bloomberg claimed that “no other city in the world” offers residents the capability to transmit digital files to 911 centers. This is untrue. Small cities in states from Connecticut to Alaska are already working with a Connecticut- based company, PowerPhone, to provide such an enhancement to 911 service. State governments in Indiana, Tennessee and Vermont are also exploring this technology.
A more accurate formulation than the mayor’s might have been that no other big city is contemplating such digital improvements to 911 and 311 – except that Philadelphia’s City Council proposed such a system six days after Mayor Bloomberg’s speech. And the most famous use to date of cell phone images to aid the police is probably in London, where such images helped police in July 2005 identify the attackers in the bombings there.
One significant concern for New York is that, if this crime-reporting method proves popular, the volume of photos and videos could overwhelm the 911 or 311 systems. Feinblatt is not worried; he says that 911 operators are “managing information all the time,” implying that how operators receive information does not matter.
Assuming that Feinblatt is correct, and that the technical infrastructure proves capable of handling the volume of photos and videos, other questions remain. For example, how exactly will people transmit them? The current assumption is that callers will dial 911 as normal, and then receive instructions from an operator about how to send the photo or video. This would allow operators to manage the flow of digital images, but force callers to go through another step. Alternatively, people could transmit digital files to 911 operators directly, without needing to call first.
Even if the technical and logistical concerns were resolved promptly, the legal status of cell phone photos and videos is not clear. Civil rights attorney Norman Siegel believes that the digital files would be legal, because “private persons -- not the state -- [are] taking pictures of criminal behavior and forwarding it”. But Adina Schwartz, professor of law at the John Jay College of Criminal Justice, cautions that such photos or videos may not be admissible in court unless their creators are willing to “authenticate” the material on the witness stand. In New York City and elsewhere, governments seeking to enhance the technological capabilities of their emergency response systems are forging new legal ground.
Well before Mayor Bloomberg announced this initiative, New Yorkers had begun to use their cell phone cameras to bring criminals to justice. In 2005, Thao Nguyen took a picture of restaurant owner Dan Hoyt exposing himself on the R train, and posted it online. Hoyt, who had been convicted of public lewdness previously, surrendered to police .
Holla Back NYC offers another flavor of cell phone justice. The site allows women to post the pictures of people who harass them in public online. Their goal is shame, not jail. Holla Back NYC has companion sites in cities throughout the United States.
John Feinblatt seems to see these grassroots approaches as a model for the law enforcement community, which has not kept up.
Others are not so sure.
“You have to wonder what kinds of hoaxes or vendettas a 'creative' individual armed with Photoshop might be able to put over on the city,” remarks Digital Smarts blogger. “Only time will tell.” “Jamais Cascio” of Open The Future writes: “As much as it has the potential for frivolous or malicious use -- just as regular 911 calls do -- it has the potential to give first responders a better idea of an emergency situation, allowing the professionals and the civilians to work together to evaluate conditions” but then suggests it also “raises uncomfortable questions.”
“I do not subscribe to conspiracy theories but there certainly seems to be a trend for increasing state surveillance,” writes “I-eclectica” in a blog post entitled Crime Fight Or Big Brother. Citizens “seem to be more frequently enlisted as informers, from... sharing their security footage with relevant authorities to now using mobile phones and computers. One would think that our long collective experiences with authoritarian and suppressive regimes would make us more sensitive to and critical about measures that, on the surface, look harmless and sensible.”
But writing in the Daily News, digital security expert Bruce Schneider pronounced the ability to send photographs and videos to 911 “a great idea that can make us all safer. Often the biggest problem a 911 operator has is getting enough good information from the caller. Sometimes the caller is emotionally distraught. Sometimes there's confusion and background noise. Sometimes there's a language barrier. Giving callers the opportunity to use all the communications tools at their disposal will help operators dispatch the right help faster.
“Still images and videos can also help identify and prosecute criminals. Memories are notoriously inaccurate. Photos aren't perfect, but they provide a different sort of evidence - one that, with the right safeguards, can be used in court.
“The worry is that New York will become a city of amateur sleuths and snitches, turning each other in to settle personal scores or because of cultural misunderstandings. But the 911 service has long avoided such hazards. Falsely reporting a crime is itself a serious crime, which discourages people from using 911 for anything other than a true emergency.”
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