Morgenthau's Mess

The D.A. Fires a Blank at the Cops Who Killed Dorismond

When Manhattan District Attorney Robert Morgenthau announced a few weeks ago that no charges would be brought against the cop who killed Patrick Dorismond, a controversy that had convulsed the city for months came to a quick and quiet end. Rudy Giuliani praised the decision of the 81-year-old dean of New York law enforcement, a media icon after 25 years in office, and hardly anyone questioned it.

Al Sharpton and the family of the 26-year-old Haitian, shot by an undercover detective after he angrily rejected drug solicitation, wailed in underplayed news stories. But not a word of official complaint was heard from an elected official or an editorial board. Recent Voice calls to Mark Green, Fernando Ferrer, Peter Vallone, and Alan Hevesi—the Big Four of the 2001 mayoral race—did not evoke a single disparaging comment about Morgenthau's handling of the case.

What was strange about the silence was that Morgenthau went well beyond announcing that his grand jury had failed to return an indictment—an understandable outcome in a difficult case. He refused to assess the propriety of the disturbing police tactics that led to Dorismond's death. He instead released an uncritical 33-page letter he'd sent to the NYPD detailing the buy-and-bust incident, which began when the undercover asked Dorismond for crack without any basis for suspecting he was a drug dealer; included cops rushing to the scene rather than disengaging when Dorismond, unaware that they were cops, got abusive; and ended with one cop pulling his gun with his finger apparently on the trigger.

Morgenthau: He's out of step with the public's rejection of Giuliani's police tactics.
photo: Fred W. McDarrah
Morgenthau: He's out of step with the public's rejection of Giuliani's police tactics.

Morgenthau chose to go public with a letter whose description of the evidence he could completely control, rather than a grand jury report, which a multiracial group of 23 Manhattan residents would have had to review and approve. He did not make any suggestions for reform or administrative discipline of the officers involved.

In fact, his letter appeared to go out of its way to justify the midnight approach to Dorismond, who was simply smoking a cigarette with a friend outside a bar on 37th Street near Eighth Avenue. Morgenthau suggested that "the hour, the character of the neighborhood, their location near a bar, the lack of any obvious reason to linger there, and the eye contact with Dorismond" explained the undercover's guess, after a "few seconds" of observation, that "the men might have drugs to sell."

"Over the course of his two and a half decades in office, Morgenthau has never indicted a New York City cop for an on-duty killing, even though his office has reviewed literally hundreds of these cases."

Though one of the three undercovers who wound up confronting Dorismond called him a "dog" and began barking at him, Morgenthau's letter dismissed these provocative acts as an attempt to turn "the situation into a joke," claiming that "dog" is "street slang for 'guy' or 'man.' " Neither did Morgenthau criticize the use of a predetermined code to warn other nearby cops of trouble—namely, "What are you trying to do, rob me?"—though it, too, angered an innocent man like Dorismond, who took it as another insult.

The D.A. also recounted how one undercover "responded" to a punch thrown by Dorismond by "throwing several of his own"—amid numerous other indications that the cops did nothing to get out of there when Dorismond rebuffed them. But the letter seemed to accept this mano a mano exchange, suggesting that the cop's initial attempt to "back away" when Dorismond moved toward him was sufficient disengagement.

The letter argues that undercovers "try to avoid revealing their identities unless a situation is life-threatening," which, of course, this one proved to be. Had the cops simply identified themselves when Dorismond went after one—or had they abruptly left the scene before he did—a life would likely have been saved.

Morgenthau's unwillingness to draw any conclusions about police practices from this tale is in sharp contrast, for example, to Brooklyn District Attorney Joe Hynes, who issued a grand jury report in 1997 following the fatal police killing of an unarmed black man. While the grand jury did not indict anyone, it "voted to issue this report to provide a safer environment for all our citizens," faulting the NYPD's Street Crimes Unit, which was involved in the shooting, for its supervision, selection, and training, as well as its "procedures for felony car stops."

Dennis Hawkins, a top aide to Hynes, told the Voice that his office presented additional expert testimony to the grand jury because "there seemed to be a lot of concern" about how the police had conducted themselves in the 24-shot barrage at a man sitting in a stolen car.

The Dorismond decision even differs from Morgenthau's response to an earlier police killing—the 1987 shooting of Nicholas Bartlett, a black street vendor who was shot by cops after he beat one with a solid steel pipe and advanced on another with the same pipe. The D.A. released a letter to the NYPD then as well, prompted primarily by the fact that six cops had surrounded Bartlett and shot at him 10 times.

Morgenthau wrote:

The Department will have to decide whether its regulations concerning the use of deadly physical force were violated in Bartlett's arrest. These regulations impose a higher standard on NYC police officers than does the Penal Law's justification statute. In particular, the Police Department will have to determine whether the officers who shot Nicholas Bartlett violated the following guidelines:

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