A Blog About Current Issues in White Collar Defense
Officer Misconduct Reform Issues Highlighted in Brooklyn District Attorney’s Dismissal of Nearly 400 Convictions
On September 7, 2022, the Brooklyn district attorney’s office announced its request to vacate nearly 400 convictions, dating back to 1999, that were founded on testimony provided by officers who were later found guilty of crimes committed while on duty. Among the 13 officers’ crimes are murder, planting drugs, taking sex bribes, civil liberties violations, and perjury—crimes that called “into question the integrity of every arrest the officers made,” according to Brooklyn District Attorney Eric Gonzalez. 
The Conviction Review Unit (“CRU”) in Gonzalez’s office spent 10 months reviewing every Brooklyn conviction in which the 13 former officers were involved. The Unit flagged for dismissal every case in which one of the officers served as the primary witness, although it declined to flag around 100 convictions that stemmed from other corroborating evidence in support of the officer’s testimony. The 378 convictions at issue in the DA’s request include 47 felonies and 331 misdemeanors, most of which were low-level drug and traffic violations. The dismissal would be the sixth-largest mass exoneration in U.S. history, according to data collected by the National Registry of Exonerations.
Mass dismissals of this sort illustrate an important point concerning prosecution and criminal justice reform: in some circumstances, basing a case solely on police testimony may be insufficient for a prosecutor’s office to ensure that a conviction is proper. And further, that a small number of corrupt officers can have a dramatic impact on both the number of innocent persons convicted or jailed as well as the general appearances of justice within a local criminal justice system.
As such, prosecutors need to ensure that witness testimony is properly corroborated by other evidence in order to minimize the risk of wrongful conviction, whether it be as a result of police misconduct, mistaken identification, etc. Indeed, as much as is reasonably possible given the circumstances surrounding the allegation, the evidence should be of a quality other than that which could also be the result of misconduct by the witness. Otherwise, such testimony is the fulcrum on which the entirety of a case, and therefore a life, rests. Too much is at stake to decide the course of a person’s life (as well as many others’) on a mere “he said, she said,” even if that witness is a trusted police officer. This is so because the issue is not a matter of trust per se but the truth and being able to prove and verify the truth as such.
This prosecutorial imperative looms especially large considering the extent to which prosecutors are often unable to access police personnel files, which contain instances of officer misconduct. In some jurisdictions, personnel files are freely available to prosecutors, defendants, and even the public, but in others, state laws and local policies make them so confidential that prosecutors cannot access them, which means that Brady material is routinely suppressed.  Even specific institutional dynamics between and within prosecutors’ offices and police departments can affect the availability of Brady material, too.  The Supreme Court’s Brady doctrine—named after Brady v. Maryland, 373 U.S. 83 (1963)—requires prosecutors to disclose materially exculpatory evidence to the defense. Because of the complex factors preventing prosecutors from accessing, much less disclosing, evidence of police misconduct that the defense could use to attack an officer’s credibility as a witness, which could make the difference between acquittal and conviction, Brady’s application varies widely depending on where the defendant is tried.  Despite various attempts at reforming the issue, many prosecutors still maintain that the system poses too many obstacles in obtaining evidence of police misconduct, which in turn prevents them from handing over such evidence as Brady material to the defense.
Accordingly, due diligence requires prosecutors to corroborate police officer testimony with other evidence prior to basing an entire case on said testimony—and defendants’ lives depend on prosecutors meeting that standard of diligence.
In any case, the officers’ crimes responsible for the Brooklyn dismissals highlight the vast implications of police misconduct, including the necessity for police and police departments to engage in some form of internal monitoring. Just as CRUs conduct extrajudicial, fact-based review of secured convictions to investigate plausible allegations of actual innocence—in essence, prosecutors re-investigating their colleagues’ cases—so, too, do police departments need to conduct good faith and impartial reviews of any officer mistakes or misconduct allegations in order to eradicate injustice and corruption whenever possible.  Without adequate police self-regulation, prosecutors may find themselves unable to rely on officer testimony with the same confidence that they have in the past, thereby limiting the role officers play in the criminal justice system.
Otherwise, the potential costs to many innocent individuals’ lives may be too great, especially for those who are not lucky enough to receive an exoneration despite a plausible claim of innocence. In total, the National Registry of Exonerations records only 30 group dismissals across the country, and two groups from Massachusetts account for around 32,000 defendants out of the 35,000 whose cases have been dismissed via mass exoneration.  Defendant-level data further underscores the rarity of exonerations in the United States: Since 1989, only around 3,200 convicted defendants have obtained exonerations—and those defendants wrongfully served a total of approximately 27,000 years in prison.
When uncovered, wrongful convictions can take years, if not decades, to correct. And even after an exoneration, it can be extremely difficult for individuals (and their loved-ones) to recover the lives they had beforehand. Years spent imprisoned are lost in easily imaginable ways because life does not pause for the wrongfully incarcerated. Instead, they merely lose the opportunity to live it well as it passes. The roles and accompanying responsibilities an individual holds in the lives of others’—parent, child, friend, mentor, and so on—go unsatisfied, an absence which is undoubtedly felt by the wrongfully imprisoned and loved-one alike. And without meaningful criminal justice reform to account for police misconduct, especially with the handling of Brady material, many individuals will continue to wrongfully serve years of their life in prison.
 For information on CRUs: https://www.law.upenn.edu/live/files/5522-cru-final
 The National Registry of Exonerations’s Groups Registry was launched in October 2020, and existing cases are still being added. See: https://exonerations.newkirkcenter.uci.edu/groups/group-exonerations