On Monday, August 12, 2013, Judge Shira A. Scheindlin held that the NYPD’s stop and frisk practice was unconstitutional. Citing the large percentage of stops that resulted in no further legal action, Judge Scheindlin stated that police officers diluted the legal standard necessary to conduct a stop and frisk and, therefore, detained individuals illegally.
On two separate occasions last month it was suggested that a court-appointed entity monitor the actions of the New York Police Department. In the first instance, the U.S. Justice Department suggested a monitor to address the racial implementation of stop and frisk procedures by select NYPD officers. The U.S. Justice Department announced that
it would support a decision by the judge to appoint a monitor to ensure compliance with any reform of police practices ordered by [the judge].
In the second instance, Civil Rights Groups suggested a monitor of the NYPD’s Muslim Surveillance Program, an intelligence program designed to foil terrorist plots. Members of the Muslim community argue that the Surveillance Program hinders their constitutional right to worship.
The New York City Council responded to the call for an NYPD monitor by
approv[ing] some of the most sweeping plans in years to impose new oversight over the NYPD.
The two bills passed recently
expand the definition of racial profiling and… establish an inspector general with subpoena power to recommend changes to the NYPD’s policies and practices.
Those in favor of the NYPD monitor contend that the monitor will regulate police procedures to prevent, or at the very least diminish, racial and religious discrimination by the NYPD. Those against the NYPD monitor, most notably Mayor Bloomberg and Police Commission Ray Kelly, argue that a monitor would prevent police officers from doing their jobs effectively because it would cause hesitation among police officers in carrying out procedures vital to fighting crime.
Whether monitoring the NYPD is the right approach remains to be seen. However, the mere suggestion of an NYPD monitor indicates that society is moving toward a solution to a problem that has hindered the NYPD and society for decades.
On June 6, 2013, the New York Court of Appeals affirmed the Appellate Division, First Department order vacating George Oliveras’s murder conviction. In 1999, Mr. Oliveras voluntarily went to a police station when he heard police were looking for him in connection with a murder. Even though Mr. Oliveras’s mother informed police prior to the interrogation that he suffered from mental illness, detectives interrogated Oliveras for six and a half hours – eliciting statements that were the only direct evidence connecting him to the crime. The description provided by a 911 caller did not match Oliveras and bullets found at the scene did not connect him to the crime.
Defense counsel moved to suppress Oliveras’ in-custody statements as false and coerced. But, counsel failed to conduct the investigation and analysis necessary to succeed in his strategy. Trial counsel failed to subpoena his client’s mental health records, and did not hire an expert. Oliveras was convicted.
Post-conviction, the Office of the Appellate Defender brought a C.P.L. 440.10 motion to vacate, arguing trial counsel was ineffective. After a hearing, the trial court dismissed the motion, but the Appellate Division First Department reversed and ordered a new trial. The Court of Appeals affirmed, explaining that counsel failed to pursue the minimal investigation required under the circumstances.
The strategy to present defendant’s mental capacity and susceptibility to police interrogation could only be fully developed after counsel’s investigation of the fact and law, which required review of the records.
New York Courts are finally looking beyond the record on appeal and requiring counsel to undertake investigation demanded by the facts of the case.
To read the decision, click here.
Another unfortunate fatality resulted last week in New Rochelle, when the police attempted to deal with a man who was clearly mentally disturbed. These complicated and dangerous situations continue to generate controversy, particularly in these economic times when police departments may not have the resources to secure the immediate help of mental health professionals.
Pace Professor Bennett Gershman addresses the issues raised by these incidents in a recent editorial.
Professor Bennett Gershman has posted a provocative essay on the adaptation of military weapons by domestic police for home searches. What we use abroad will eventually return home. Do you agree with Professor Gershman’s analysis? Read it here at the Huffington Post. http://www.huffingtonpost.com/bennett-l-gershman/flashbang-searches_b_3313408.html