Why Do 'Bad Cops' Escape Punishment?


In the spring of 2013, David Ranta, who had served 23 years of a 37-year sentence for the murder of a prominent Hasidic rabbi, was released from prison after a yearlong investigation by the Brooklyn District Attorney's Conviction Integrity Unit determined that he had been wrongfully convicted.

The conduct of now-retired Brooklyn homicide detective Louis Scarcella appeared to play a key role in the DA's decision, though it was not cited specifically as the reason for vacating his conviction. Scarcella's investigative tactics were apparently so questionable that even the judge on the Ranta case expressed serious concerns about them to the prosecutors during the trial. Neither he nor the prosecutors took any action, however.

Indeed, while a group of incarcerated men, as well as individual defense attorneys, had for years been gathering evidence strongly suggesting that Scarcella had coerced false witness testimony and fabricated confessions, it was not until Ranta's release—and the press attention it generated—that Scarcella's conduct came under official scrutiny by the same criminal justice system that once relied on him to help prosecute crimes.

In June of 2013, then Brooklyn District Attorney Charles Hynes appointed a panel of former prosecutors, professors and retired judges to review what would total 57 trial convictions involving Scarcella's work (Hynes drew criticism for stacking the panel with a number of his closest friends).

At the time Hynes left office at the end of 2013 after suffering a devastating election defeat by Ken Thompson, no additional convictions involving Scarcella had been vacated. However, Thompson—under the auspices of a revamped and expanded Conviction Review Unit (CRU)—has continued to investigate wrongful conviction claims in general and those involving Scarcella in particular (as of January 2015, 71 Scarcella cases were reportedly under review by Thompson),

To date, Thompson has asked judges to vacate an additional four convictions involving Scarcella; he has also upheld 11 convictions in cases on which Scarcella worked.

Scarcella has staunchly and repeatedly denied the allegations against him, telling GQ Magazine last August that “I have the truth on my side,” And both his attorneys and Thompson's office have been quick to point out that Scarcella has not been officially cited for, or charged with, any wrongdoing.

Experts say that is unlikely to happen.

Why? For one, police have broad powers to carry out their duties. For example, while fabricating evidence is a crime, detectives are permitted to use deception and psychological pressure to obtain confessions. But even where there is strong evidence that a detective engaged in criminal activity in order to obtain evidence against a suspect, the statute of limitations can shield him or her from prosecution. (Scarcella retired from the NYPD in 1999).

Indeed, according to veteran New York defense and civil rights attorney Ron Kuby, who represents five people claiming they were wrongfully convicted in cases that involved misconduct by Scarcella, “Most police misconduct does not come to light for years, even decades, after it sends innocent people to prison. By then, statutes of limitations for criminal prosecutions of the police have long passed.”

Chicago Case

This was precisely what happened in the case of Jon Burge, a retired Chicago police commander who was the subject of a 4-year investigation by special Cook County prosecutors.

The investigation, which concluded in 2006, found evidence that Burge used torture to obtain false confessions from criminal suspects between 1972 and 1991; but prosecutors nonetheless determined he could not be prosecuted because the statute of limitations on his crimes had run out. Critics of the investigation argued that prosecutors did in fact have evidence of numerous provable offenses against other members of the Chicago Police Department that were within the statute of limitations, whom they nonetheless failed to prosecute.

In theory, a detective could be subject to civil liability for the commission of civil rights violations. But, like other public officials, police officers enjoy what is known as qualified immunity.

According to Joel Rudin, a criminal defense attorney who specializes in representing people who have been harmed by police and prosecutor misconduct, in order to overcome this immunity “a plaintiff would have to show both that the right he claims was violated by the police officer was one that was clearly established at the time it was violated, and that no reasonable police officer could have believed that the particular conduct was consistent with such clearly established right.”

And this can be a high standard to meet.

For example, says Rudin, “even though coercing an involuntary confession through psychological pressure is clearly established to violate the Fifth and Fourteenth Amendments, a detective still might have qualified immunity if he used pressure that a reasonable police officer could have believed was reasonably justified to overcome a suspect's reluctance to incriminate himself.”

In other words, Rudin explained, the fact that a confession turns out to be false does not automatically mean that a detective's interrogation techniques were illegal.

“Particularly in the 1980s and 1990s, and even today, detectives [were] taught to use various psychological manipulations to elicit statements, and sometimes it's a question of degree whether the technique went so far over the line with a particular suspect that it was obviously likely to produce a false confession,” he said.

Individuals who have been wrongfully convicted do have the option of suing the city. David Ranta did just that, though his suit was settled by the city comptroller's office before any litigation got underway.

The New York City comptroller's office also settled three other cases where convictions involving Scarcella were vacated before any lawsuits were actually filed. (A fifth man, Derrick Hamilton, was released earlier this month and last week filed a notice of claim that he intends to sue the city, the NYPD and Scarcella for $100 million.)

Settlements Total $23 million

Of course, these settlements—totaling over $23 million—were funded by the taxpayer and not Scarcella personally. And while they most certainly saved the city large sums in legal costs, and brought relief to the victims much faster than would have been the case if their claims had been successfully litigated, some observers note that such pre-litigation settlements also have a downside.

For example, they deprive defendants of discovery, which can uncover more evidence of misconduct, not only by the plaintiff, but those who may have cooperated in, encouraged or enabled it.

Some of this evidence could become the basis for additional civil actions and even criminal charges, argues Lonnie Soury, a New York-based public relations expert who has worked to overturn numerous wrongful convictions throughout the country. Indeed, Soury notes that the ability to put witnesses under oath can be a critical tool in forcing accountability.

This is what happened with Jon Burge. While it was no doubt very small comfort to his possibly hundreds of victims, Jon Burge was ultimately arrested in 2008 by federal prosecutors not for engaging in torture, but for lying about it in a civil trial. He was convicted in 2011 and sentenced to 4 ½ years in prison, He was released in October, after serving 3 ½ years, his reportedly $4,000 a month pension intact.

But ultimately, many legal experts argue, focusing on punishing individual police officers for their roles in wrongful convictions misses the forest for the trees.

“You can't have someone like Scarcella without prosecutors and judges egging him on or agreeing to look the other way,” says Soury.

“Scarcella worked with the DA, so he has dirt on them,” Soury continues.”What went on in [former DA Charles Hynes'] office in the 80s and 90s, and with the cops and their informants—it was a dirty, dirty place. The ethics rules were just thrown out the window, and there are probably 20 Scarcellas out there, or more.”

Kuby agrees.

“‘Bad cops' are merely the reflection of a broken criminal justice system; bad cops give the system what it wants—convictions,” he argues.

“Cops do not wake up in the morning planning to falsify a case against innocent people; they falsify cases against people they believe to be guilty, but will otherwise get off due to fancy lawyering unless a thumb is put on the scales,” Kuby continued.

“They are merely the first link in a long chain of misconduct that includes prosecutors, judges, appeals courts and, ultimately, the public. We get the policing that we want.”

Hella Winston is a freelance journalist based in New York City. She is a Senior Fellow at the Schuster Institute for Investigative Journalism at Brandeis University and a postdoctoral fellow in sociology at the University of Masschusetts, Amherst. She welcomes comments from readers.

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