The New York City Police Department has backed out of a two-year arrangement with the Manhattan District Attorney’s Office in which department legal staff appeared as the prosecution in certain low-level cases.
The practice of using police staffers as prosecutors in Summons Court had drawn criticism from activists, elected officials and members of the legal community, but Lawrence Byrne, the NYPD’s deputy commissioner for legal matters, said that preparing for trials and appeals was taxing the NYPD Legal Bureau’s resources.
“I don’t have the lawyer time, frankly, to do that,” Byrne said.
In the two years since the memorandum was signed, NYPD legal staff appeared in 38 cases, of which 13 were in Criminal Court and 25 were summons cases on appeal.
The NYPD Legal Bureau employs some 100 lawyers, Byrne said, who are tasked with assisting the department in various legal matters, including handling the roughly 2,000 lawsuits the department receives each year.
With respect to the Legal Bureau’s work in the Summons Courts, Byrne said NYPD legal staffers will focus on getting police officers prepared to appear in court.
The NYPD and the Manhattan DA Cyrus Vance Jr.’s office signed a memorandum of understanding in February 2016 in which the DA delegated the authority to prosecute cases in the summons part of Manhattan Criminal Court to the department.
It is generally rare for Vance’s office to send prosecutors to Summons Court, but there have been exceptions, such as cases involving hundreds of protesters arrested in 2011 during Occupy Wall Street demonstrations.
Prior to the signing of the memorandum of understanding, Byrne told the New York Daily News that using NYPD legal staff in summons cases could help the department avoid civil liability in some cases.
“We’re not going to settle frivolous lawsuits any more. We’re going to fight lawsuits. We’re going to take them to trial. We’re going to defend them,” Byrne told the Daily News.
Among the first defendants that the NYPD prosecuted after the memorandum was signed were Arminta Jeffryes and Cristina Winsor, who were taking part in Black Lives Matter protests in March 2016 in Manhattan.
Jeffryes was cited for crossing a street against a “don’t walk” signal and Winsor was among a group of protesters who police say stepped off of a usable sidewalk and walked in a roadway despite orders from police officers not to do so.
In September 2016, while Jeffryes and Winsor were fighting their summons cases, Manhattan Criminal Court Judge Guy Mitchell found that the memorandum did not create a conflict of interest.
Jeffryes and Winsor also filed a civil suit against Vance’s office and, in September 2017, Manhattan Supreme Court Justice Lucy Billings denied motions to dismiss by the NYPD and the Manhattan DA’s Office, finding that the arrangement could create a conflict of interest that violates the protesters’ due process rights and undermines the reliability of the adversarial process.
In December, the New York City Bar Association’s criminal justice operations committee issued a report stating that the practice raises ethical and legal issues and called for it to end.
The committee said that, while there appears to be few legal restrictions on district attorneys delegating their powers, past rulings by the Court of Appeals call into question the legality of delegating that authority for the purpose of avoiding civil liability.
In 1989, the state’s high court found in Cowles v. Brownell, 73 N.Y.2d 382, that an arrangement between a plaintiff suing a municipality and two police officers for false arrest in which the plaintiff would agree to drop his civil claims in exchange for a criminal harassment charge getting thrown out was not enforceable.
But Byrne said that at least one court has found in favor of the NYPD and the Manhattan DA on the issue.
“I think their arguments have no basis,” Byrne said.
On March 6, a group of eight local and state elected officials from Manhattan sent a letter to Vance’s office arguing that, while state law does allow district attorneys to delegate their prosecutorial powers, they are not allowed to choose their replacements.
“A district attorney ought to consider the merits of each case, in particular, the actions of law enforcement officers, and only prosecute cases in the public interest,” the letter stated. “By delegating responsibility for prosecutions to the NYPD, you have also removed this check on their power.”
Byrne sent a letter to the Manhattan DA’s Office dated March 7 stating that the department is rescinding the memorandum of understanding.
On March 9, Joan Vollero, the Manhattan DA’s senior adviser for intergovernmental affairs and public policy, responded in a letter to the elected officials that it’s the DA’s position that summons cases “are best handled by a judge or judicial hearing officer, so that limited prosecutorial resources are not expended on minor offenses.”
A spokesman for the Manhattan DA’s Office declined to comment further.
National Lawyers Guild attorneys Gideon Oliver, Martin Stolar, Jonathan Wallace, Elena Cohen and Michael Decker appeared for Jeffryes and Winsor in their criminal and civil proceedings. Oliver said in an email that the rescission of the policy is a “complete victory” for Jeffryes and Winsor, and that their cases would have ended years ago with adjournments in contemplation of dismissal had the NYPD not used legal staff to prosecute the cases.