Thank you for sharing!

Your article was successfully shared with the contacts you provided.
New York City police officials on Wednesday dropped a request to submit secret evidence in their fight to loosen federal limits on police surveillance of political groups. Assistant Corporation Counsel Gail Donoghue notified Southern District of New York Judge Charles S. Haight Jr. of the decision in a letter that was also sent to attorneys for political groups that support the surveillance restrictions. In a separate statement, Donoghue said: “We are standing on our public papers which support a modification of the decree.” The political groups’ attorneys, who would not have been allowed to see the evidence, have adamantly opposed the department’s request, saying it was unprecedented for a local police force. The department had contended that the secret evidence — testimony from David Cohen, deputy commissioner of intelligence — would help prove that officers investigating terrorism can no longer afford to wait for signs of criminal activity before monitoring political groups. Since a federal consent decree was signed in 1985 to settle a suit by various political groups, officers have had to prove criminal activity to a three-member panel, known as the Handschu Authority, before they could investigate such groups. But this September the department asked Judge Haight, who presides over the decree, to modify the restrictions so officers would only have to show that such investigations had a law enforcement purpose, a more relaxed legal standard. Franklin Siegel, a professor at City University of New York School of Law and an attorney for the plaintiffs, said the request to submit secret evidence to help decide the merits of a case was unparalleled in the context of local, rather than federal, law enforcement in the United States. “There are no state precedents,” he said. Donoghue’s letter also requested a conference with the judge to address whether the city could block a deposition of Cohen, which was requested earlier this week by attorneys for the political groups. In a second letter sent Wednesday to Judge Haight, Jethro M. Eisenstein of New York’s Profeta & Eisenstein, an attorney for the plaintiffs, said he and his fellow attorneys would question Cohen only about statements he had made in previous declarations. “They’re saying, ‘Handschu handcuffs us,’ and they have the burden of proving that,” Eisenstein said in an interview. “The best way to prove it is through cross examination.” The plaintiffs’ attorneys have claimed that Cohen has exaggerated claims made in his declarations, and they contend that the past investigations he cites, such as one uncovering a plot to blow up New York bridges and tunnels, would not have been compromised by Handschu because suspicion of criminal activity was clear. Cohen has denied making exaggerations and allegations that he was essentially supporting racial profiling. He has said that police officers have tested the Handschu guidelines in the field and found that they “were not workable in the context of terrorism,” though he has not cited specific instances of stalled investigations. EARLIER HEARING At a hearing last week, Judge Haight called the department’s request “unusual,” and suggested that city attorneys had a difficult burden to meet before he would accept secret evidence. Haight said such a request could not be tendered by Donoghue, but only by Police Commissioner Raymond W. Kelly or perhaps Cohen. Donoghue first asked the judge to consider secret testimony in a letter dated Sept. 25. Donoghue said the testimony could not be divulged to the public or even the opposing lawyers “without compromising both the viability of an ongoing investigation and the lives and safety of confidential informants.” Haight noted last week that no one other than Donoghue had mentioned the request to submit secret evidence in court papers, including two lengthy declarations from Cohen. Cohen’s second submission to the court, the judge pointed out, came after attorneys for the Handschu plaintiffs protested the request, and yet still made no mention of it. What’s more, the judge said, “The city thus far has cited no cases whatsoever in support of what must be acknowledged as an unusual request and on which the city clearly bears the burden of persuasion.” At the hearing, Donoghue conceded that asking a judge to hear secret evidence to decide a case was “a not favored procedure,” and said she would feel “not good” if she were to trade places with her opposing counsel. But, she said, the secret testimony was not the only evidence and would merely supplement previous papers submitted to the court. Late Wednesday, Eisenstein said Judge Haight had called for a hearing this afternoon on Cohen’s deposition.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.