Morgenthau’s Mess


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 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:

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.

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.

He was elected in a special election in 1974, running against incumbent Richard Kuh, who had been appointed earlier that year by a Republican governor, Malcolm Wilson, to fill a vacancy created by the death of longtime D.A. Frank Hogan. He defeated Kuh in a Democratic primary with the strong support of Harlem leaders Percy Sutton and Charlie Rangel and has long enjoyed the support of the county’s black, Latino, and liberal white leadership—reelected in recent years virtually without opposition. Roy Goodman, the GOP boss of Manhattan, and Liberal Party honcho Ray Harding have made sure he has tri-party support.

The D.A.-for-life’s campaign committee has $579,545 in the bank, ready for another run in 2001, when he will be 82 years old. He has been the consummate D.A. and the consummate politician, surviving in Manhattan despite its very liberal Democratic primary electorate. He has been a resolute opponent of the death penalty, brandishing old-fashioned liberal principles even in the face of political pressure when cops are killed. He has surrounded himself with skillful assistants.

But he appears out of step with a constituency that believes that cops, especially in the Giuliani era, need external, monitoring restraint, and that deadly force requires, as Morgenthau himself put it over a decade ago, extraordinary justification.

Research: Kim Brown, Matthew Leising