When Cops Take Their Beefs to Work

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Robin Barton

If you live in the New York metropolitan region, you’re aware that officers in the New York Police Department (NYPD) were recently engaged in an unofficial slowdown, writing fewer tickets, handing out fewer citations for so-called “quality of life” crimes, such as jumping a turnstile or drinking alcohol in public, and making fewer misdemeanor arrests.

The unofficial slowdown was a response to the perception that Mayor Bill de Blasio has been disrespectful to and unsupportive of the NYPD in the face of protests over the controversial Eric Garner and Michael Brown cases.

Police Commissioner William L. Bratton called for the end of the unofficial slowdown, and recent statistics suggest that the rank and file have listened.

However, it’s not unreasonable to assume that officers could resort to a similar tactic again the next time they take issue with another government official. And if the targeted official was a district attorney, the next slowdown could have a profound impact on the court system.

The New York Times, which was especially critical of the slowdown, discussed its impact on the court system, focusing on the fact that fewer arrests meant fewer defendants to be arraigned.

The criminal courts responsible for arraigning those recently arrested are typically madhouses that rarely stop long enough for those working in them to catch a breath.

But during the slowdown, court officers, lawyers, judges and others were essentially twiddling their thumbs, waiting for defendants to come through the door.

Let’s consider the possible impact a future police slowdown could have on the criminal justice system beyond just the number of new cases added to the system.

Suppose the Staten Island grand jury had voted to indict an NYPD officer in the death of Eric Garner based on evidence presented by Daniel Donovan, the Richmond County District Attorney.

Given the current tensions in New York City and the attitude of the police union, it’s not hard to imagine officers refusing to cooperate with the assistant district attorneys in that office on other cases as a form of protest against what they regard as the unwarranted prosecution of their colleague.

What are the implication of such a refusal to cooperate? To answer that question, you must understand that the role of police officers doesn’t end once they’ve made an arrest.

For example, if a defendant has been charged with felony-level offences, the district attorney’s office must present evidence to a grand jury on those charges and get an indictment for the case to proceed. Such evidence will nearly always require the testimony of at least one police officer.

As to both misdemeanor and felony cases, assistant district attorneys may need officers to locate witnesses, execute search warrants or find defendants who’ve failed to appear in court. And officers are typically needed to testify in evidentiary hearings and ultimately at trial.

In addition, many aspects of the criminal prosecution process in New York are governed by strict deadlines. Most notably, under New York’s criminal procedure law, the prosecution must be ready for trial on a serious misdemeanor case within 90 days and a felony case within six months (not counting certain excluded time periods).

A prosecutor can’t answer ready for trial if the police officers on her case refuse to appear to prepare for their testimony or to actually testify. And if the government doesn’t meet this deadline, the charges are dismissed—and can’t be reinstated.

I’m unaware of any instances in which the members of a police force refused as a whole to cooperate with a prosecutor’s office. However, there have been situations in which officers have refused to cooperate with inquests or inquiries into their actions or those of other officers.

For example, members of the Atlanta Police Department refused to cooperate with a citizen review board, which was trying to investigate public complaints involving encounters with law enforcement.

But under the right conditions, police officers could stage such a protest. And if it went on long enough, it could result in the dismissal of cases.

Staging a refusal to work with prosecutors would be harder for officers to execute than an unofficial slowdown of arrests. On the street, officers must by necessity exercise some discretion as to when to make an arrest or issue a summons.

But it would be more difficult to avoid cooperating with a prosecutor or testifying when you’ve been officially summoned by the district attorney’s office. Such a slowdown would likely require the tacit consent of NYPD officials or at least their willful blindness to officers’ failures to appear.

However, if it occurred and went on long enough, it could result in the dismissal of cases.

Risking the successful prosecution of criminal cases would be an immature and irresponsible response by officers sworn to uphold the law and protect the public.

We can only hope that in future disagreements with other government officials, NYPD officers will find ways to demonstrate or protest that don’t negatively impact or undermine the system as a whole.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes comments from readers.


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