Section: CAPITAL REGION Page: D1 Date: Sunday, March 25, 2001
LAWYERS: POLICE ACCUSERS PRESSUREDBRENDAN LYONS Staff writer
Prosecutors often use the leverage of criminal charges in an effort to get people to drop police brutality or other civil rights claims, legal experts say. The tactic -- where prosecutors agree to drop often minor criminal charges in return for people dropping civil rights claims -- was once common. But it was banned by a state Court of Appeals ruling in the early 1990s. However, defense lawyers allege some prosecutors still do it. In some instances, prosecutors will protect officers' interests simply by taking a more strict posture in criminal cases where defendants have initiated lawsuits that allege wrongdoing by authorities. ``Things get worse for a defendant once the district attorney's office has any knowledge or inkling that a defendant might want to sue,'' said Mark Mishler, an Albany lawyer. ``I've certainly had a number of experiences where it has been clear to me that the district attorney's office is taking a position in a criminal case that is guided less by the facts and the circumstances of the criminal case and more by their desire to try to provide some protections to police officers.''
Randall Kehoe, an Albany lawyer with clients who have civil rights claims pending against police, said he encountered the strategy last year just before the start of a criminal trial in Albany City Court. In a hallway outside City Court last year, an assistant district attorney cornered Kehoe and allegedly made one last offer: If his client dropped a federal lawsuit claiming that he was wrongly arrested and roughed up by police, prosecutors would drop a disorderly conduct charge. Kehoe said he was livid and turned down the offer. ``(Prosecutors) have an unbelievable hammer. No one wants to risk jail,'' Kehoe said. Kehoe said a similar offer was made to him once by an assistant prosecutor in Schenectady County when he was representing a man wrongly arrested for raping a woman. The offer in that case was that the charges would be dropped against Kehoe's client if he promised not to sue. ``They (prosecutors) get so caught up they're blinded by their loyalty to law enforcement,'' Kehoe said. Area district attorneys vehemently deny that they would allow their prosecutors to make such offers -- even off the record. ``That's against public policy and you can't do that,'' said Albany County District Attorney Paul Clyne. Schenectady County District Attorney Robert Carney echoed Clyne's position, saying the practice is unacceptable. ``I think it's not so much a question of protecting police,'' Carney said. ``If there is a view of the evidence that is supported by what we believe to be truthful testimony (by a defendant), then we have an obligation to seek some level of accountability.'' Even defense lawyers concede that allegations of police brutality and false arrest claims are often fabricated. Several attorneys said they believe most police officers follow the rules. But rooting out those few officers who are bad is important enough that prosecutors should never step outside the criminal justice arena to meddle in civil lawsuits or internal affairs complaints, they added. Many defense lawyers said they believe that prosecutors routinely compare notes with municipal attorneys and internal affairs investigators to discuss complaints lodged by suspects.
In cases where someone is a victim of excessive force, the officers involved will usually protect their actions by charging a person with resisting arrest -- and prosecutors often back them up, defense lawyers say. The one-two punch can be devastating to civil rights abuse cases because a conviction scuttles, or seriously weakens, any claims that may be asserted in a civil lawsuit stemming from the case, lawyers say. ``I think it's systemic,'' said Anne Pope, president of the Albany NAACP branch. ``We keep seeing these mundane charges like resisting arrest and disorderly conduct. I believe once they (police) have the criminal charges lodged against them, and if there's an effort being made for a civil lawsuit, they just make those charges stick.'' The upshot, defense attorneys say, is that alleged civil rights abuses, and even outright police brutality, may be brushed away in some cases because defendants, even those maintaining their innocence, are too afraid of a criminal prosecution. The argument against using criminal charges as leverage to quash lawsuits in which excessive force by police has been alleged began to build in the late 1980s. In 1989, a controversial 5-4 decision by the U.S. Supreme Court upheld the practice as long as defendants knew they were giving up their right to sue. But two years later, New York's Court of Appeals ruled the widely used practice was unethical and a violation of the state constitution, attorneys said. Despite the state high court's ruling, numerous area defense attorneys said that while prosecutors may not make the offers in public settings, the practice still continues. ``I think we've all become more careful,'' said a local criminal court judge who spoke on condition of anonymity. ``But it doesn't mean it doesn't happen in the hallway.''
Some lawyers said they often hear from people who want to file a lawsuit alleging malicious prosecution, false arrest or excessive force by police. But they usually approach the private practice attorneys after they have pleaded guilty under the guidance of a public defender. Without an outright dismissal of the charges or an acquittal, though, the footing for a lawsuit is suspect, according to attorneys. ``There's no doubt that happens because many of the criminal defendants are street-level people who are not sophisticated and they won't want to go to jail,'' said Kevin Luibrand, a criminal lawyer who has successfully filed civil rights lawsuits against the Schenectady Police Department. ``They'd rather take a licking and walk away and drop a (civil) claim than risk going to jail.'' With prosecutors in some cases effectively serving as private attorneys for police officers, defense lawyers say a victim of police abuse has the scales of justice tilted against them. Luibrand said his first experience with the issue took place several years ago in Schenectady. He was representing a city man who was dragged naked from his home and beaten unconscious by police officers. The officers believed he was wanted for murder in Florida, but the warrant turned out to be a mistake. The man, a construction company owner named John C. Rodick, was left naked and bleeding in a holding cell for hours, laughed at by officers and later charged with resisting arrest when police realized their mistake, according to court records. ``Almost every case involving excessive force has a resisting arrest charge slapped on the front of it because the police officers have to justify somebody's bloodied wounds,'' Luibrand said. As Rodick's cases -- civil and criminal -- wended through the process, an assistant district attorney in Schenectady offered to drop the criminal charges in exchange for Rodick dropping his federal lawsuit, according to Luibrand. Rodick declined, was acquitted of the criminal charges and later won a $1.7 million verdict against the city and the officers who beat him. So why would prosecutors want to protect bad cops? ``Because they work so closely with them and because of the bond that all law enforcement people have with one another,'' Luibrand said. ``They always need to be counting on each other in the future and that's what happens when they make these plea bargains.'' Monroe Freedman, a professor of legal ethics at Hofstra University Law School who has studied the issue, said he knows of no way to gauge how common it is for prosecutors to use criminal charges to protect municipalities from civil claims. But Freedman said he believes the practice continues because there is no recourse for those who do it. ``There's very little to discourage prosecutors from doing what as law enforcement officials they ought to know is unlawful,'' Freedman said. ``One of the scandals is that prosecutors typically are not disciplined.''
Sol Greenberg, who retired last year following a 25-year reign as Albany County district attorney, said there were instances where his office would take into account the credibility of an entire police department when investigating crimes against an officer. ``You want to protect the reputation of the department and the city, or a combination of both,'' Greenberg said. ``If you get one rotten apple, what's going to happen is it's going to affect a good number of other apples -- and very unfairly. You're trying to maintain an integrity. Sometimes we've had situations involving cases where we'd decide to pursue (a criminal case) because they were going to bring a civil action anyway.''