By Benjamin Weiser
Published: June 30, 2013
The tip to the police was solid: An African-American man, in a striped shirt and a Yankees cap, was carrying a gun in a building in Upper Manhattan. Officers responded and made an arrest.
But where that information came from, and the lengths to which the police and law enforcement agents may have gone to conceal the source, turned a seemingly ordinary gun possession case into a flash point over legal ethics and a sharp dispute between a judge and federal prosecutors.
The judge found that the arresting officers had created a “story to justify” the stop of the man, and that federal agents endorsed falsehoods that were “contrived to protect” the identity of a supposedly anonymous source, who was actually a valuable confidential informant. “A decision was made to coordinate among all the witnesses not to tell the full truth,” the judge said.
Sgt. Robert Nicholson testified at a suppression hearing that he received the informant’s call and after hearing his information, told him to dial a police hot line that offers callers anonymity.
Two days later, when the complaint was sworn before a magistrate judge, it omitted any mention of the informant and said merely “an anonymous individual had placed a 911 call.” But before the suppression hearing began, a prosecutor told the judge that he had uncovered the truth. He said that the original caller had not been anonymous but was a known informant. Also the complaint stated falsely that the defendant, when he saw the police, immediately began to run. But, he added, that an officer who had seized the gun and arrested the defendant, now recalls that he saw “a bulge” in the defendant’s waistband — a detail that had not been in the complaint.
After the hearing, the judge said: “The idea that [the defendant] turned and began to run is nonsense.” And, “I give no credibility to [the officer’s] statement that he saw a bulge.” And “A decision was made to tell perhaps the truth but not the whole truth.” And “Special agents were taken in with the story and implemented it knowing that it was less than truthful,” And the observations of the three officers were “not credible, not worthy of belief.”
The judge even questioned whether the grand jury that indicted the defendant had received “accurate information,” and scolded the government telling it that if a confidential informant “is to be protected, there are ways to do it which do not require misstatements to a federal grand jury or a judge.”
The U.S. Attorney’s Office sent letters to the judge, asking him to withdraw his findings, citing the potential damage to the officers’ careers. The judge refused.
Comment
A couple of things. First, it may come as a shock to some, that the prosecutor acted honorably. That is no surprise. 99.9 percent of prosecutors I know would have acted the same way. The majority of prosecutors are not “lifers” who are going to dedicate their lives to being prosecutors. They are just young men and women on their way to other careers: private law practice, journalism, politics, business, or even criminal defense. They do not have a personal stake in convicting people. Sometimes prosecutors get carried away but rarely. They are not on a crusade. They are just doing their jobs to get some good training for their future. Period.
On the day of writing this article, The New York Times had an article about a former prosecutor who prosecuted a well-known hedge fund manger just months ago is now representing a bookkeeper involved in the Ponzi scheme of Bernard Madoff in the very same court where he formerly prosecuted the hedge fund manager, and complaining all the way about his former office actions! Prosecutors are nothing more or less than young men and women who anyone, including defendants, would be proud to have as their sons and daughters. So this prosecutor revealing information that could potentially undermine his case does not surprise me at all.
And the judge’s actions do not surprise me. At least in New York, judges are very independent. Defense lawyers in New York can always go to a federal judge with their arguments when they feel prosecutors are being unreasonable. A federal judge’s questioning the credibility of law enforcement witnesses and characterizing their testimony, as “nonsense” does not surprise me. The judge’s refusal to “withdraw his findings,” after being requested to do so by the United States Attorney’s Office also does not surprise me whether or not it could hurt the officers’ careers.
It should be noted, however, that this concealing of informants by “shading” the truth is an on-going problem and it’s high time someone called attention to it. It is why an attorney should always ask an officer-witness whether he or his colleagues have received other information leading to the stop, search, or arrest of his client and make the same request of the prosecutor. No sense in just relying on the integrity of prosecutors or agents.
In one case I had I asked a state prosecutor for the “street” surveillance tapes of the scene of a car search based on a “traffic violation,” and advised him that I was also going to be asking a nearby bank branch for their surveillance tapes. Within days I received a “notice of dismissal.” Coincidence? Maybe, but there are few coincidences in criminal law.
– David Zapp, Esq.