Mimesis Law
18 September 2019

Cops As Prosecutors: Bad Idea

October 5, 2016 (Fault Lines) — If you ever fought a traffic ticket in court, you are aware that your adversary will be the police officer who wrote you the ticket. The officer becomes the de-facto prosecutor in the case against you. In these cases, you and the officer are both in front of a judge.

The case is generally an infraction; there’s no jail-time at risk. In New York City, the cops want to prosecute certain cases themselves, without the prosecutor’s office involved. A judge says they can do it. Imagine that not only is the cop who issued your summons there, but a police department lawyer is prosecuting you. Does that seem right to you?

The cases at issue seem to be jaywalking summonses issued to people involved in exercising their First Amendment rights during protests; particularly Black Lives Matter protests. Two women arrested for jaywalking in Manhattan during a protest are facing just that situation.

The Village Voice talked to Gideon Oliver one of the women’s lawyers:

In many protest situations, NYPD Legal Bureau lawyers are actually out with the police officers at the scene, helping to figure out what crimes to charge people with so you have police lawyers prosecuting cases that police lawyers have had a direct hand in bringing.” In cases like this, then, the police lawyers acting as prosecutors may not just be protecting their client from a civil suit, they could be protecting themselves.

Why is this worth getting all worked up about?
The women challenged the arrangement under which they were prosecuted by police lawyers, arguing that giving the NYPD control over prosecutions is illegal. For one thing, they say, where the district attorney’s only job is to seek justice, NYPD lawyers have a conflict of interest: They are both acting as prosecutors and representing their client, the police department.

It might come as no surprise that the Manhattan DA’s office says there is no problem with this, pointing to a “memorandum of understanding” between the DA and the cops. This amounts to saying:

Hey, it’s perfectly okay because we gave ourselves permission to do this; nothing to see here.

The DA claims they don’t have the staff to handle the cases arising in summons court. You might think this means they have bigger fish to fry and these minnows shouldn’t be in the pan at all. But not in Manhattan, where they don’t let a lack of resources get in the way of screwing people as hard as they can.  Assistant DA Benjamin Rosenberg wrote in a court filing:

The cases may not be presented thoroughly to the Court, and injustice may result, it’s far better to have a responsible public office — the NYPD — stand up on these cases, than to have no one at all.

Attorneys for the two women argue that the law the DA is relying on is dated and meant for use in rural areas where there are no district attorneys to handle minor cases. To top it off, the lawyers say that they believe the NYPD is targeting people for First Amendment activity since they don’t appear to select any other summons cases for prosecution.

The conflict of interest is further exposed when you realize that the NYPD is offering to dismiss their charges if they agree to the condition that the NYPD did nothing wrong. If you are going to do that, why arrest them in the first place?

To harass, intimidate and discourage people from exercising a constitutional right and to protect yourself from suit so later you can reopen their cases without exposure to risk of being sued. That’s why.

It almost seems as if the NYPD and Manhattan DA are engaged in a premeditated attack on the First Amendment rights of American citizens. Hopefully, the way this law is being applied here will not withstand scrutiny further up the judicial food chain, as this would set a dangerous speech chilling precedent.

3 Comments on this post.

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  • TheHawk296
    6 October 2016 at 11:05 am - Reply

    This is such an insanely bad idea; it could only come from the head of a police union.

    It is so completely stoooooooopid that words alone cannot describe it.

    It is also fraught with ethical problems:

    1. Prosecutor as a witness. Ethics rules for attorney bar attorneys from being witnesses in their own cases. AN NYPD lawyer witness a crime then prosecuting it is a violation of that rule

    2. Selective Prosecution – It appears that NYPD lawyers are only witnessing and prosecuting First Amendment cases to intimidate protesters into not suing NYPD or the City, thus giving the prosecution a financial interest in the outcome

    3. Judges condoning item 1&2 may put themselves in their own quandary with the judicial canon of ethics. It is reasonable to believe that Judge Guy Mitchell has already done this

    If the Manhattan DA’s office (you know Jack McCoy’s office) cannot prosecute minor cases with the resources they have, then those cases need to be dismissed. All attorneys have an ethical obligation to take no more cases that they can effectively handle, and that applies to the prosecution also. It appears what while municipalities do not have resources for prosecutor our public defenders, they do have resources for plenty of police overtime, which I believe obis the driver of this insanity.

    This ruling needs to be appealed to a higher court that does not have a financial interest tin the outcome.

    The local bar association, the ABA, NYCLU, the New York State Bar, and the New York Commission on Judicial Conduct need to get involved in this travesty as well.

  • Daniel
    6 October 2016 at 3:09 pm - Reply

    My arguments at trial:

    It’s practicing law without a license (if the cop is not a lawyer or hired by the DAs office).

    Cops, even if they are lawyers, can’t act pro se on behalf of the state.

    It is unethical for a cop to act as a prosecutor in a case where that very cop will be testifying.

    • Greg Prickett
      6 October 2016 at 11:48 pm - Reply

      It’s not cops, it is the police department’s own lawyers.