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Sunday, October 08, 2017

Police as prosecutors

A lawsuit in Manhattan civil court is challenging a program in which NYPD lawyers prosecute summons cases, pursuant to a delegation by the Manhattan DA. The apparent impetus for the move was that the DA generally does not send attorneys to summons court, resulting in many cases being dismissed, in turn forming the basis for constitutional claims arguing that officers lacked probable cause to issue the summons. The police department requested the delegation so it could litigate summons cases or offer a resolution would require the defendants to admit liability, barring a subsequent lawsuit. Plaintiffs claim this is a conflict of interest for the police, which violates due process, undermines the adversary system, and raises a hint of selective prosecution. Plaintiffs allege that the police are pursuing only claims against those cited while engaged in expressive activity (the plaintiffs were cited for actions during a police-reform march, and the charges against one of them were dismissed when the judge found the arresting officers' testimony contradicted by video of the events).

For you crim/crim pro/PR scholars in the audience: What is the problem here, as a legal or ethical matter? Because I do not see it. A lot seems to be about the intent of the delegation and the police lawyers' strategy--to protect officers from subsequent civil suits. But that seems like one, valid influence on prosecutorial discretion, whether the DA or its delegee is exercising that discretion. As for the focus on people cited for expressive conduct, that sounds in selective prosecution, a defense that is hard to prove and as much of a problem (or non-problem) with or without the delegation. What am I missing? 

Posted by Howard Wasserman on October 8, 2017 at 11:49 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


And I think I need to be more precise in my question. I think it's important to disaggregate both the selective-prosecution and probable-cause issues from the delegation issue. Of course, a criminal defendant can challenge both on constitutional grounds. But those problems could arise if these cases were being handled by the DA. The state claim seems to be to the delegation itself or to the delegation as making the selective-pros and no-PC risks worse. My question is more about the delegation, which seems more of a "this is a bad idea because it may enable more constitutional problems" than a "this is constitutionally defective" issue.

Posted by: Howard Wasserman | Oct 10, 2017 11:47:13 AM

Hi Howard:

Thanks for forcing me to be more precise.

Assuming the defendants could prove their selective prosecution claim, it would be a First Amendment claim, not a due process claim (at least that's how I read Wren).

The incentives question is a political one. But if the NYPD is pursuing cases w/o probable cause, then that would be a due process claim (I think DP--no other constitutional right comes to mind).

As for the structural question, I imagine it would be a question of state or municipal law. There is federal precedent that allows a defendant to bring structure-based constitutional rights claims in criminal prosecutions. (The Supreme Court recognized criminal defendant standing to raise 10th Amendment claims a few years ago.) But I don't know enough NY law to be able to say if it would rise to the level of a state constitutional claim.

Good questions!

Posted by: CBHessick | Oct 10, 2017 11:43:18 AM

Carissa: Thank you for this. I see your point about different units making the decisions. But are you making political/policy arguments or constitutional arguments--that is, does due process prohibit this arrangement or is it just a bad idea that should be avoided? I think you are right as a political matter--I'm less sure about due process.

Posted by: Howard Wasserman | Oct 9, 2017 9:02:11 PM

As I read your question, it rests on the assumption that it would be an acceptable practice for a DA to protect police officers from civil suits by extracting from defendants a promise not to sue those officers in exchange for a favorable plea. Such release-dismissal agreements, though, are not valid without a legitimate reasons related to prosecutorial function. Here, the court found (in my view rightly) that no such independent or legitimate reason existed. It would seem even harder to find legitimacy or independence in a prosecution delegated to the police, the very dept seeking to be released from liability.

Posted by: Betsy Ginsberg | Oct 9, 2017 1:20:39 PM

You raise important questions, Howard. Let me try to articulate my concerns (with the caveat that others may have different concerns).

First, I have selective prosecution concerns. As you noted, this arrangement appears to be resulting in different treatment of those who are arrested for protesting. Selective prosecution cases are difficult to prove, not because the legal standard is too demanding, but rather because the facts to support such a claim are difficult to gather and because the courts will not allow discovery without a significant showing. Here, much (if not all) of the information that defendants will need for a selective prosecution claim will be public record. And just as singling s/o out for different treatment based on race or religion is forbidden, so too is singling them out for exercising other rights.

Second, I have concern that this is resulting in prosecution of cases where there is no probable cause. As this news story (http://www.nydailynews.com/new-york/judge-acquits-blm-activist-nypd-prosecution-case-article-1.3537057) reports:
"Protesters who get picked up by the Legal Bureau are asked to admit that there was probable cause for the arrest in order to get what used to be a standard dismissal deal." Now, I don't know what a "standard dismissal deal" is/was. But it is both unconstitutional and professional misconduct to prosecute a case in the absence of probable cause.
To be clear, because plea bargaining is essentially unregulated, the government is permitted to obtain waivers of other rights (in addition to the right to a jury trial) in return for a favorable disposition, such as a dismissal. But my concern here is that the police appear to have requested control over these prosecutions precisely in order to ensure that they don't later get sued for arrest w/o probable cause. Because that is their overriding motivation, I am deeply uncomfortable with the same unit making the decision whether to prosecute, seek a plea, or dismiss out of hand. That is because this unit has an incentive not to dismiss the charges out of hand even if they are not supported by probable cause--in fact, those are the cases in which they have the biggest incentive *not* to dismiss out of hand.

Finally, I have a structural concern with this arrangement. Unlike the federal system--in which we have one elected executive to whom both police and prosecutors are responsible--NYC has a different electoral arrangement. The DA is independently elected, while the police chief is appointed (I think by the mayor). This system (at least in theory) increases liberty by requiring different units (police and prosecutors) to agree in order for a prosecution to move forward. The delegation not only defeats this separation of powers, but it also raises accountability questions. Cy Vance can claim that he is not responsible for the outcomes in these cases b/c his office isn't handling them. And the mayor can say that the decision to give these cases to the police lies with Vance (not with him and his appointed chief).

Posted by: CBHessick | Oct 9, 2017 8:44:57 AM

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