Suggesting that the New York City Police Department is risking sanctions in a Freedom of Information Law dispute, a judge in Manhattan has denied the agency an opportunity to reargue her order to turn over records related to a homicide investigation.
Supreme Court Justice Doris Ling-Cohan’s (See Profile) latest decision in Loevy & Loevy v. New York City Police Department, 2013 NY Slip Op 61706, stemmed from the agency’s request to reargue a prior directive to disclose records in an unsolved, 26-year-old murder and rape case in Long Island City. The cold case, which the department insists remains an open investigation, is similar to the one that put Lebrow Jones away for 22 years.
The contested records are sought by a Chicago civil rights law firm seeking to exonerate Jones, who claims he was wrongly convicted.
Jones, the son of a famous jazz musician, Rufus “Speedy” Jones, was sentenced in 1989 to a 22-year-to-life term for the gruesome murder of a prostitute, Michaelanne Hall. Jones was released in 2009 at his first appearance before the Board of Parole after an investigative series of articles by the Middletown Times Herald-Record raised doubts about his guilt.
Loevy & Loevy, a Chicago law firm, is attempting to exonerate Jones, and in 2011 requested police records related to a rape-murder in Long Island City that occurred around the same time and in similar fashion to the Hall homicide.
But the NYPD rejected the firm’s Freedom of Information Law (FOIL) request, contending that disclosure of the records would compromise an ongoing investigation and violate the privacy of the victim of a sex crime.
The department argued that under a 2011 opinion of the Appellate Division, Second Department, Lesher v. Hynes, 80 AD3d 611, it was not required to explain in detail how disclosure of a document would interfere with an investigation, and relied on a broad assertion that providing the information would compromise the case.
In January, Ling-Cohan rejected the NYPD’s argument, noting that the Lesher decision was appealed and the Court of Appeals made clear that “not…every document in a law enforcement agency’s criminal case file is automatically exempt from disclosure simply because kept there. The agency must identify the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents” (Lesher v. Hynes, 19 NY3d 57).
The NYPD then moved for reargument, elaborating slightly on an affidavit submitted by Detective Daniel Autera that says disclosure would undermine the investigation. Ling-Cohan, who found the rationale weak the first time around, found it no more persuasive the second time.
“Based on Detective Autera’s affidavit, respondent has again failed to bring forward such facts as would indicate anything more than that the homicide is still unsolved, will remain open for however long it takes to solve, and that the file is updated every so often to check its status,” Ling-Cohan wrote. “These facts are no different from every other unsolved homicide investigation, and, if sufficient to bar a FOIL request, would effectively make all homicide investigation files off limits to FOIL requests.”
The judge took exception to an affirmation submitted by a police department attorney, Yvette Cheng, which the court said “provided an inaccurate procedural history of this proceeding,” likely because Cheng “was, in fact, not present” during several conferences.
Ling-Cohan also said in a footnote that she is bothered by the department’s suggestion that she is biased and “caused [a] procedural quagmire” that is prejudicial to the NYPD.
“The court is indeed troubled by the incendiary and sanctionable language used by respondent,” Ling-Cohan wrote. “Any ‘procedural quagmire,’ if one existed, was caused by respondent’s own actions.”
Anand Swaminathan of Loevy & Loevy argued for the firm. The NYPD was represented by Lt. Lori Hernandez and Katie Flaherty.
Swaminathan said the records he has been trying to obtain for more than two years could be instrumental in proving Jones’ innocence. He said the rape/murder of a prostitute in Long Island City occurred only hours before the Hill homicide and in a fashion so similar that it suggests the two crimes were committed by the same person.
“We are very interested in the information contained in the police file in the Long Island City murder because there may be any number of things in there that would help us exonerate our client, and that is our goal,” Swaminathan said. “All we are doing is asking for the information in the file, and they have fought us vigorously.”
Swaminathan said evidence shows that Jones, “an individual with an extremely low IQ who was essentially coerced into confessing,” was working at the time of the Hall murder and could not have committed the crime.
Robert Freeman, executive director of the state Committee on Open Government, said it is “exceeding rare” for a judge to impose sanctions in a FOIL case. But he said the NYPD “appeared to be perilously close” in this matter.
“The court clearly recognized the unjustifiable series of roadblocks that the department created as a means of delaying disclosure,” Freeman said.
John McCarthy, the NYPD’s deputy commissioner for public information, said “we are reviewing the decision and evaluating our options.”
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