Prosecutors in all five boroughs of New York City are quietly building internal databases to track police officers who may have credibility problems as witnesses at trial.
They are already in use in Brooklyn, Manhattan, Queens and the Bronx, and the Staten Island DA’s office is also developing one, according to an investigation by WNYC. The databases can include civil lawsuits, past criminal records, substantiated misconduct allegations and determinations by judges that an officer’s testimony was not credible.
District attorney’s offices use these lists to alert their prosecutors to potential problems with police witnesses. Sometimes, they’ll turn over information on individual officers to the defense, based on the defendant’s right to know.
Our findings prompted defense attorneys and civil-liberties advocates to call on city prosecutors to unveil the databases. Their release would allow for a review of past convictions based on testimony by potentially tainted officers.
In Philadelphia, where the DA’s office released their list last year, public defenders have petitioned the DA’s office to re-examine over six thousand past convictions.
“The notion that district attorneys in New York are aware of police officers who have perjured themselves in criminal prosecutions, have put them on a list of people not to be called in cases as witness, is a public scandal,” said Chris Dunn, Legal Director of the New York Civil Liberties Union. “We cannot have a criminal justice system that allows for police officers to perjure themselves, and then for that to be a secret.”
The Brooklyn District Attorney’s Office developed a police credibility list roughly around the time former DA Ken Thompson came into office in 2014, according to two former Brooklyn prosecutors interviewed by Gothamist/WNYC. Lawrence Mottola, a former assistant district attorney who worked in the office from 2009 to 2017, said the database included CCRB complaints and civil lawsuits. Brooklyn DA Eric Gonzalez said in a statement that when his staff identifies officers who “raise concerns about credibility,” they “screen cases accordingly.”
In Manhattan, prosecutors have also maintained an internal police credibility list for several years, according to two former prosecutors who worked in the office in the last decade. Last October, The Appeal reported on a Freedom of Information Law battle suggesting the office collected judicial findings against officers. Former prosecutors say the lists have more information than that.
Nuala O’Doherty, an assistant DA from 1995 to 2018, said the list, known internally as “the bad cop list,” includes officers’ criminal convictions, past false statements and information on pending investigations.
“You can get everything,” said O’Doherty. “I mean, you can get, ‘An officer was arrested for a DWI, driving while intoxicated.’ You could get, ‘The officer signed a statement that proved to be false,’ you can get that the officer swore to a complaint, a written statement, and that was then later found on video not to be true.”
The Manhattan DA did not respond to our inquiries about the list, but cited a 2018 letter it issued to several New York state assembly members last year, in which it called it “wrong” to think of the list as “a secret ‘list’ of lying police officers.’”
Queens prosecutors created their own database last year, which “may or may not be deemed to bear upon a police officer's credibility,” according to a statement from Executive Assistant District Attorney Robert J. Masters. Masters noted that the database is “centrally maintained” and contains “substantiated misconduct allegations, criminal matters, adverse credibility findings and civil lawsuits.”
On Staten Island, prosecutors are currently developing an “information” system on officers with possible credibility issues, according to a Richmond County DA spokesperson.
The Bronx DA’s office would not comment on the existence of such a list. But it was identified as the Notified Officers List in training documents obtained through the state Freedom of Information Law.
The training documents, court records and interviews with former Bronx prosecutors indicate the list includes information on lawsuits, investigations from the Civilian Complaint Review Board and the NYPD’s Internal Affairs Bureau.
In a statement, the NYPD said the department works closely with DA’s offices to share information about officers with credibility issues. The city’s largest police union says the information compiled on officers is often flawed and inaccurate.
The lists are similar to records compiled by the Legal Aid Society and circulated among public defenders in recent years. But those lists are mostly based on public records and are not comprehensive.
From left: Manhattan District Attorney Cy Vance Jr., Brooklyn DA Eric Gonzalez, Bronx DA Darcel Clark, Staten Island DA Michael McMahon (via @BronxDAClark)
In response to our findings, Manhattan assemblyman Dan Quart called on DAs across the city to release their lists. Quart, an outspoken proponent of criminal justice reform, said the lists would help defense attorneys better represent their clients, and would provide better information on officers who have changed boroughs.
“Whether it’s a gang database list or these lists of documents challenging police officers’ credibility, it is simply wrong for district attorneys to withhold this information from the public,” said Quart.
New York’s new discovery reforms will speed up the time by which prosecutors must turn over such information on police witnesses, but Quart says the lists would provide defense with better information on officers who have changed boroughs.
Historically, courts have not forced prosecutors to turn over such credibility information before plea negotiations, the method by which the majority of felony cases have been resolved. New York’s new Discovery law, going into effect in 2020, is supposed to speed up such disclosures.
Most DAs did not respond to our inquiries about whether they would release the lists publicly. But in a statement, Masters, of the Queens DA’s office, said that much of the information contained in this database is protected from disclosure by Section 50-a of the Civil Rights Law, a controversial provision that protects personnel records used to evaluate officers’ job performance. Masters also said the information is “subject to protective orders issued by courts, limiting the use of the information to particular proceedings.”
But Dunn, of the NYCLU, says a DA’s office could choose to release its database, especially since much of the information in these lists are not from personnel records.
“A fair reading of 50-a would provide that a document created in a district attorney’s office, talking about misconduct or even perjury by a police officer, would not be a personnel record within the meaning of section 50-a,” he said. “If a district attorney chose to release these lists, they could go ahead and do so.”
O’Doherty, the former Manhattan assistant district attorney, says transparency will help the public develop a more nuanced understanding of the officers with credibility records.
“Defense attorneys think that there are so many of them, of these officers on the list, but what it is, is the same officers are making all the arrests,” she said. “There’s this very old-fashioned idea that officers are somehow perfect, which is not true. They’re human like everybody else. They’ve got issues in their past.”
Other former prosecutors echo this point, noting that most of the officers with documented credibility issues are from the aggressive street-crime units, because their work tends to generate more arrests, confrontations and complaints over the years.
“The plainclothes officers are doing guns and drugs usually,” said Mottola. ”Those are the cases, in particular, where you’d look for stuff where the officers have either a history of excessive force or some kind of credibility issue.”
Mottola estimated that roughly five percent of plainclothes officers had some credibility issues that landed them on the list in Brooklyn.
New York City Mayor Bill de Blasio visited the office of District Attorney Brown at the Queens Criminal Court on Thursday, July 20th, 2017. (Edwin J. Torres/Mayoral Photography Office)
But even if the number of officers in these databases is quite small, their release could affect thousands of past cases. Last year, the Philadelphia Inquirer reported on the existence of an officer credibility list, known locally as the “Do Not Call” list. Philadelphia prosecutors released it under court order. Though the list was roughly a year old and included only 66 officers, after its disclosure, the public defender’s office filed a petition for a review of 6,400 cases involving officers on the list.
Bradley Bridge, from the Philadelphia public defender’s office, said officers in high-intensity units such as specialized narcotics squads can taint large numbers of cases.
“Although it’s a small number of officers, the impact is substantial because they are aggressive units that make multiple arrests a day,” he said.
Similar disclosures could spark similar disruption in New York, says Dunn.
“And it should lead to that, because police perjury cannot be the basis for criminal convictions,” he said.
Andrew Stengel, a former Manhattan prosecutor, has filed a legal petition asking the Manhattan DA to release its records on police credibility. Stengel says prosecutors should not fear such disclosure.
“It shouldn’t matter how big the effort would be,” he said. “Where there was impeachment material that existed, and a defense attorney didn’t receive it, it’s possible, and very likely, that a conviction is rotten. So justice should be done, no matter how much work disclosing such a list would create.”
George Joseph can be emailed securely with a protonmail email account at [email protected]. You can also text him, via the encrypted phone app Signal or otherwise, at 929-486-4865.
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