This is how toothless New York’s civilian panel overseeing complaints against the city’s police officers has become: In its April meeting, the 13-member panel couldn’t muster a majority to approve sending a letter to Police Commissioner Ray Kelly asking him where he stood on a point about the panel’s independence.
The letter would just be “futile,” said one panel member, who was actually for sending it.
It’s not unusual for big-city police-review boards to struggle in their efforts to see complaints against police investigated and prosecuted. But New York’s Civilian Complaint Review Board is experiencing record levels of frustration and irrelevance.
In 2004, 88 cases against police officers actually made it to trial. Last year, that number was eight. And yet, the police department claims that it’s actually doing a better job of prosecuting bad cops. How? By employing a complex manipulation of statistics.
Complaints are prosecuted not by the CCRB itself but by the NYPD’s Department Advocate’s Office, which, since Julie Schwartz took over in 2004, has increasingly used a light hand with police officers who are found to deserve discipline. After Schwartz took over, the percentage of officers receiving “instructions” (what amounts to a talking-to, the lightest possible penalty) jumped from 29 percent of those disciplined in 2004 to 57 percent in 2005. In her second year, the number increased to 73 percent.
That’s a lot of stern lectures.
Last year, the percentage of disciplined officers receiving instructions actually came down—to 54 percent. But by then, the Advocate’s Office had come up with another way of dealing with CCRB cases—getting rid of them altogether by labeling them “DUP,” which stands for “Department unable to prosecute.”
Some members of the CCRB have another name for it: “Department unwilling to prosecute.”
Last year, more than a third (34 percent) of the 296 CCRB cases closed by the Advocate’s Office were labeled DUP. In contrast, between 2002 and 2006, the Advocate’s Office labeled as DUP a total of 49 cases, or 2.6 percent, of the 1,918 complaints referred by the CCRB.
In the first two months of 2008, 16 of the 57 CCRB cases closed by the Advocate’s Office, or about 28 percent, were DUP’ed. And of those disciplined, 70 percent of the officers received “instructions.”
CCRB chairwoman Franklin Stone has renewed the call for Kelly to allow the civilian board to prosecute its own cases.
“Some of these cases they’re DUP’ing are terrible cases that cry out to be tried,” she tells the Voice.
Calling it a “seismic shift” in policy, Christopher Dunn, the NYCLU’s associate legal director, asserts: “Between the dramatic increase in the number of CCRB cases the department is dismissing, and the large number of cases where officers get only a slap on the wrist in the form of instructions, the department has essentially given officers a free pass to engage in misconduct.”
Schwartz says the higher number of cases dismissed is simply the result of evaluating them more carefully. Under her stewardship, the Advocate’s Office “has engaged in a more up-front analysis of the cases received by the CCRB. This analysis includes both a determination of whether the appropriate legal standards were applied and the success of prosecution. Many times, the CCRB will substantiate allegations based solely on the civilian’s version, without any corroboration. . . . Since we have initiated this type of analysis, we are seeing a severe decline in the number of cases that need to be dismissed later or result in not-guilty findings after trial.”
NYPD spokesman Paul Browne points out that in 2007, the number of case dismissals decreased by 84 percent, and the number of officers acquitted in trial went down by 83 percent.
But CCRB officials argue that Browne’s statistics ignore the large number of cases ditched as DUP. If you include DUPs as dismissals, then the total percentage of cases dismissed has almost doubled, from 21 percent in 2006 to 38 percent in 2007.
It is true that the Advocate’s Office is having better luck getting convictions in trials—but that doesn’t mean much when hardly any cases get that far. In 2004, the year before Schwartz took over, the Advocate’s Office tried 88 officers accused in CCRB complaints, winning 26 cases—a 29.5 percent success rate. Last year, the percentage of successful cases did increase (to 37.5 percent), but the number of cases that actually went to trial was far smaller (eight, resulting in three guilty verdicts and five acquittals).
CCRB chair Stone, a former federal prosecutor, maintains that the quality of the review board’s investigations hasn’t changed over the past three years: “In fact, I think we’ve gotten better,” she says. For instance, last year, the CCRB added a panel of four lawyers—all former prosecutors—to vet investigations before passing them on to the board for final substantiation. And at a time when complaints have skyrocketed, the CCRB is substantiating fewer cases than it has in recent years. In 2007—a year when the CCRB received a total of 7,559 complaints—the panel only substantiated 217, or 8 percent, of the cases they fully investigated.
“It’s not like we’re out to get police officers,” Stone says. “It’s a really small percentage of the cases that we find the complainants are credible. What we’re saying is, try the cases . . . or let us.”
On April 15, the good-government group Citizens Union seconded Stone’s demand, calling for a “more independent Civilian Complaint Review Board that is given the power to try the cases it substantiates.”
But, not in so many words, Kelly has indicated that’s not happening.
In a March 11 letter to the board, Kelly explained that the reason for the increase in DUPs is “largely due to a change in the nature” of the CCRB complaints, and an increase in harder-to-prove abuse-of-authority complaints. (The commissioner didn’t mention that the increase in abuse-of-authority complaints might have something to do with his aggressive “stop-and-frisk” policy, which has resulted in 865,557 New Yorkers being stopped over the past two years without being charged with anything.) In the letter, Kelly indicated that the Advocate’s Office lawyers “are best suited” to analyze those cases.
Kelly didn’t, however, specifically say that he was against letting the CCRB prosecute its own cases—so, at the review board’s monthly meeting on April 9, CCRB member Dennis deLeon proposed sending Kelly a letter to get him on record. The vote? Two for; four against, including two of the police commissioner’s designees (the third was absent); and four abstentions, including Stone, who said she was for it but believes that it was “a futile act” given Kelly’s past statements.
Afterward, one naysayer—board member Tosano “Tony” Simonetti, a seventysomething retired NYPD first deputy commissioner—had this to say about the CCRB’s chances of ever gaining prosecutorial powers: “Not in my lifetime.”
Simonetti, one of the police commissioner’s designees, didn’t make clear if this was a prediction or a promise.
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