PROP’s Prosecutor’s Forum a Success

Panelists and volunteers representing all five New York City boroughs made PROP’s May 8th panel, Prosecutors: Serving the Police or Serving the Public? a success. Professors, attorneys and activists gathered at the LGBT community center to discuss the important issue of the use and misuse of prosecutorial discretion in New York City.

Harry Levine, Sociology Professor at CUNY Queens College and Director of the Marijuana Arrest Research Project, reiterated a theme prevalent in much of his work by calling the prosecutors’ misuse of discretion a scandal. “I think the prosecutors, like the police department, are a scandal,” Mr. Levine said. “On top of all the other things we do, the public, reporters, editorial boards, civic groups, and politicians need to be educated about prosecutorial power.” When the panel was asked about the use of condoms as evidence of prostitution in criminal court, Mr. Levine repeated this sentiment. “The solution to these things is exposure. These are scandalous. The use of condoms as evidence in criminal cases is scandalous, and it’s revolting. It will revolt people but you have to talk about it and it has to be known, and it has to be put under (The New York Times columnist) Jim Dwyer’s nose and it has to be brought to NBC news and it has to be put on TV and people have to click on their news and see about condoms and prostitutes and arrests and so on and think, ‘Gracie, I think that’s a terrible thing,’ and there has to be public outreach. The good news is we are reaching people.”

Shayna Kessler, an attorney with the Bronx Defenders’ Criminal Defense Practice spoke about how policies handed down by the leadership in District Attorneys offices prevent low-level Assistant District Attorneys from practicing proper discretion, regardless of the facts of the case or the ADA’s belief as to the just outcome. Ms. Kessler informed the crowd about “Operation Spotlight,” a policy in the Bronx DA’s office that prevents the DA from making plea offers to defendants who were convicted of any three misdemeanors in the prior year. “These are often individuals who have very serious drug problems, untreated mental health problems. They struggle with poverty and other related issues. They come into the criminal justice system and they frequently face a much greater likelihood of jail time and the inability to resolve a case where other people might be able to.” Ms. Kessler illustrated the program with an anecdote of a client of hers who had three prior drug convictions. Her client had entered a drug rehabilitation program and was proud of his success. However, he could not afford a MetroCard and was arrested for jumping a turnstile on the way to his rehabilitation program. Due to Operation Spotlight, the DA did not make an offer and bail was set. “It’s just a senseless use of the state’s resources and I think we can all agree it would have made more sense for this gentleman to be going to his treatment program than to spend a week in jail, which is what he did.”

Nicole Smith, Clinical Law Professor and Supervising Attorney in the Criminal Defense Clinic at CUNY School of Law, spoke about how the culture of DA’s offices contribute to the problem. “Even if it’s not an explicit policy or practice there is an understanding that if you want to advance in the DA’s office, if you want to create a career for yourself as a prosecutor you’re not going to get very far by dismissing cases. Many DAs have talked to us and told us about circumstances where they were called into a supervisor’s office to explain why it is they dismissed a particular case, and those conversations never happen when it comes to a conviction. You are never called into a supervisor’s office to explain why you convicted somebody on a case. So there is a very clear understanding that if you want to survive in that office, if you want to advance, part of what that means is getting convictions. And it’s getting convictions even on cases that you know may not be the strongest case and that may actually have very significant problems.”
Jennifer Blasser, recently a Clinical Associate Professor of Law for the Benjamin N. Cardozo Law School’s Criminal Defense Clinic and soon-to-be supervising attorney at Bronx Legal Aid, spoke about “cognitive dissonance” prevalent in DA’s offices. Ms. Blasser described about a recent Clinic client who was charged with possession of a gravity knife. The arresting officers had, under penalty of perjury, sworn on the accusatory documents that the client had been blocking the entranceway to a building, thus making their search legal. Luckily, the clinic was able to obtain security camera footage of the arrest and the events leading up to it, which were decidedly different from the officer’s description. The video showed three young men calmly sitting and chatting on a stoop. When a woman came by to enter the building, “the three men not only get up from the stoop, but they literally get up and move out of the way,” she said. “It is such chivalry you see in this video. Everything but three men blocking the entrance to the building is what you see.”Ms. Smith spoke about the DAs’ strategy of continually adjourning the few cases where clients are willing to fight the charges. “What prosecutors are well aware of and is just a part of the whole process is people get worn down by it. You’re coming back to court time after time after time. You’re losing time at your job, with your family, whatever your responsibilities are and they count on that because they know that fighting it means you have to hang in there a year or longer sometimes. And people just don’t have the ability to be able to do that and sometimes the collateral consequences are such that the make decisions to jump out before fighting it because it’s too much of a risk.”

Ms. Blasser and her students showed the video to the ADA, who then agreed the search was unconstitutional and dismissed the charges. Ms. Blasser said she asked the ADA, “’So what would you have done if there were no video, because that’s most of our cases?’ and the district attorney says, ‘To be frank with you I would have to believe the police officers.’ And that’s precisely what the District Attorney’s office does constantly, is believe the police officers. Now, ‘believe’ is, I think, a word we can stretch because I’m not sure every district attorney really believes the police officer, but they rely on the police officers, these are their witnesses.”

Ms. Blasser said that the DA has the least information about a case at its outset, and the most information about a case immediately before trial. When charges are initially brought, Ms. Blasser said, ADAs take police statements as “passive listeners,” not in a “critical capacity,” because to challenge even dubious police statements would cost time and require more dismissals. “Among the things we need to do is reverse that funnel so the District Attorney’s office is confronted with that information at a much earlier stage. The problem I’ll highlight is that even with that information District Attorneys tend to engage in willful blindness. ‘I don’t see it and therefore I’m not going to actually be involved in it.’”

Babe Howell, Associate Professor at CUNY School of Law and author of  the paper “Broken Lives from Broken Windows: The Hidden Costs of Aggressive Order-Maintenance Policing,” spoke about how misuse of prosecutorial discretion has led to a system in which certain communities are charged with minor crimes that virtually all people commit. “When it came to prosecutors it did not occur to me that they could be a part of the solution. It did not occur to me because those people stand there every last day and try to take that $50 out of your pocket, and try to take that day of community service from you for, say, smoking marijuana, when all of their college buddies smoke marijuana every day, their families in the suburbs, the people that they live with hire illegal housekeepers, they do all sorts of minor crimes, as does everyone. But only certain populations are policed, and furthermore they know it. They know that many of those police officers are not telling the truth.” Ms. Howell said that when her students say they want to be come prosecutors “I tell them you are going to do horrible things. Go to 100 Centre street, go to the Bronx, go to Brooklyn, go to Queens, you will see all day long, people, black people, brown people, homeless people, LGBT – take a vulnerable population – and you will see those people, and no others, being brought through the system. After 24 hours, no toothbrush, no phones, it’s disgusting in there, and the prosecutor is saying, ‘I want that community service or that ACD or that disorderly conduct. I want something more from this person who has been policed in this way.’”

Ms. Howell said that she believes prosecutors don’t all set out to become abusive authoritarians. “Some of these people before they go to the prosecutor’s office could never imagine that they’d take this position. It turns good people into people who are just looking to win their case and use whatever power they can which is why you need a new prosecutor at the head with real ethics.” Despite Ms. Howell’s pessimism about the state of prosecutors’ offices, she remained hopeful that, due to the discretionary power inherent in the position, a good prosecutor could be found. “A prosecutor could take the position, and I think they should, that if there is racial disparity they will not prosecute the cases, period. I will not take black people, I will not take brown people, I will not take white people if I see people prosecuted for open alcoholic container. Go to Central Park, you’ll see lots of those. Go to the summons part, you’ll see lots of those. The difference? The color of their skin and the neighborhood where your park is.”

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