Morgenthau's Mess

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

In all cases, only the minimum amount of force will be used which is consistent with the accomplishment of a mission.

The firearm shall be viewed as a defensive weapon, not a tool of apprehension.

Every other reasonable alternative means will be utilized before a police officer resorts to the use of his firearm.

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.

Where feasible, and consistent with personal safety, some warning must be given. DEADLY PHYSICAL FORCE SHOULD ONLY BE USED AS A LAST RESORT.

In fact, while Morgenthau has never issued a grand jury report on a police killing, he has released a half dozen on other issues, using them to sharply assail a variety of public agencies and urge legislative or administrative changes. One report, issued in 1988, blasted the fire department's "seriously deficient communication" in combating a fire at Schomburg Plaza in which seven people died, even assailing the line firemen for not being "as alert as they should have been."

Another report, prompted by the hospital death of the 18-year-old daughter of journalist Sid Zion, confirmed the "systemic nature" of "the medically deficient care in this case" and sought "executive action concerning the supervision of inexperienced doctors" in emergency rooms. Like the Hynes grand jury, the jury in the Zion case heard expert testimony unrelated to a possible prosecution and made sweeping findings and recommendations that changed hospital policies.

Morgenthau grand juries have also issued two reports urging disciplinary action against cops they could not indict—recommending dismissals and suspensions for misconduct ranging from the theft of cash evidence to instigating an assault on another police officer. In one case, the grand jury report said it "examined the actions of these officers to determine whether they met their obligations to the community as public officials" and concluded that they did not.

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. Nor has he ever issued a grand jury report seeking administrative action against the cops or changes in procedure on any such case.

He has written letters like his Dorismond memo in four other high-profile incidents, releasing them publicly to explain his decision not to indict but never allowing a grand jury to address any questions of police practice or discipline. He has indicted drunk city cops who killed people in off-duty incidents, as well as one who ran down a psychiatrist in a police vehicle on Park Avenue far away from where he was supposed to be on duty.

Morgenthau has also indicted six transit bureau cops for the 1983 subway beating of Michael Stewart, and a black Housing Authority cop for the 1992 shooting of a white motorist. But he has yet to press a homicide charge against anyone from the NYPD—which his office, like any D.A.'s, relies on every day—for killing someone while engaged in a police activity.

This record suggests that even the acknowledged pillar of New York law enforcement may embody the conflict black and other leaders have long suggested is at the heart of the handling of deadly force cases: D.A.'s cannot bite the hand that feeds them. Indeed, it is by now a legitimate question whether Morgenthau believes that an on-duty city cop who kills someone can be wrong, criminally or otherwise. There isn't a scintilla of evidence in his record—including grand jury reports—to demonstrate that he does.

He was the only district attorney to join Giuliani last year in a lawsuit to prevent the creation of an Independent Police Board, an oversight body created by the City Council and so overwhelmingly supported by Morgenthau's fellow Democrats on the council that they overrode Giuliani's veto of the bill. Morgenthau's arguments in the case—suggesting that the board's power to investigate police misconduct would interfere with his own—have been derisively dismissed by the Manhattan State Supreme Court judge who heard the case.

"None of the constitutional and statutory provisions" cited by the D.A. and mayor, said Judge Richard Braun, "supports this position," concluding that Morgenthau's "powers will not be unlawfully infringed upon." In fact, Braun accused Giuliani and Morgenthau of "attempting to violate the separation of powers doctrine by infringing upon the powers of the council as the legislative body of the City of New York duly chosen by the people of the City."

Council Speaker Peter Vallone wrote Morgenthau a letter in the middle of the Dorismond uproar asking him to withdraw as a plaintiff in the suit, but Morgenthau joined the Giuliani appeal anyway. His counterpart in the U.S. Attorney's office, Mary Jo White, has supported the legislation, seeing it as no apparent threat to her ability to prosecute.

"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.' "

In the mid '90s, Amnesty International claimed Morgenthau refused to cooperate with their probe of police brutality. He has also recently assailed the U.S. Civil Rights Commission for its critique of police profiling and other practices, even though its report echoed the findings of State Attorney General Eliot Spitzer, a Morgenthau protégé. While legitimate questions have been raised about the commission and its report, Morgenthau again wound up merely echoing Giuliani's denunciations, rather than balancing the pluses and minuses of the commission's analysis.

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