BDS ATTORNEYS FEATURED IN VILLAGE VOICE COVER STORY ON POLICE ACCOUNTABILITY IN COURT
Today’s Village Voice features a cover story on “The Incredibles” – Brooklyn police officers who judges have found to be not credible yet continue to be utilized by the District Attorney to prosecute cases. The story centers on officers whose misdeeds only came to light through investigations by BDS attorneys Deborah Silberman, Renee Seman and Scott Hechinger. You can read the entire article here or below.
The Incredibles: Judges Said These Cops Can’t Be Trusted, So Why Does the D.A. Rely on Them?
When Sarah Siegel, a public defender with the Legal Aid Society, picked up the case this spring, it seemed ordinary enough. Her client, a thirty-year-old black man, was charged with possession of marijuana and handgun ammunition, which police said they had found at his East Flatbush apartment. But deep in the case’s paperwork, something caught Siegel’s attention: an affidavit from a confidential informant — used by police to secure a warrant to search her client’s apartment — and the names of three police officers from Brooklyn’s 67th Precinct: Lieutenant Edward Babington, Sergeant Vassilios Aidiniou, and Officer Jean Galliard.
Those names were a clue that this case wasn’t as straightforward as it seemed. Looking them up, Siegel found a New York Timesstory from more than a year earlier documenting allegations of a pattern of perjury and evidence-tampering among a small group of police officers in the 67th. The officers would arrest someone, claiming they had noticed them carrying a handgun in public, out in the open, in a plastic bag, or in a bandana. As the cases progressed, the police would add another detail: The arrests weren’t only based on chance observation, but were backed up by tips from an informant.
Actual proof of this confidential informant was often scant; paperwork was missing, and when called to present the informant at trial, prosecutors wouldn’t be able to. Then there was the lack of forensic evidence. The cops repeatedly failed to test for fingerprints and DNA evidence or to retrieve available security camera footage, so the cases hinged on the cops’ testimony alone. And time and again, that testimony was so unlikely and so inconsistent that judges said these officers couldn’t be believed.
In December of 2014, when public defenders in Brooklyn first went public with their suspicions about the gun arrests in the 67th, New York was convulsed with protests sparked by the twin announcements that the police officers who killed Eric Garner on Staten Island and Michael Brown in Ferguson, Missouri, would not be charged. With demonstrations in the streets and reporters demanding to know what they were going to do about the allegations against the officers from the 67th, the Brooklyn district attorney and the NYPD announced they were both launching investigations into Babington, Aidiniou, Galliard, and a fourth officer, Detective Gregory Jean-Baptiste (since retired), who collaborated on many of the problematic cases.
Nearly two years later, the Voice has learned that both organizations quietly concluded their investigations months ago. The NYPD and the Brooklyn district attorney’s office have agreed that there’s nothing to see here, and prosecutors are back to making gun cases on the police work of Babington, Aidiniou, and Galliard, who continue to work in the 67th Precinct, an area that encompasses East Flatbush. Which raises a question: If judges say a cop is a repeat liar, but police and prosecutors disagree in a secret report, who are we supposed to trust?
Judges have been throwing out testimony from the police officers in question for nearly a decade, but it wasn’t until 2013 that anyone connected the cases. On June 4 of that year Jeffrey Herring was standing outside his apartment building in East Flatbush. As Herring remembers it, it was one of the nicest days of summer so far, and he’d been enjoying it. He’d taken Snowy, his collie, to play in Lincoln Terrace Park, gotten a flat on his bicycle fixed, and run some errands at the local C-Town and dollar store, then returned home, pausing outside his apartment to talk on the phone with a friend.
That’s when the cops rolled up on him, handcuffed him, took him to the 67th Precinct station, strip-searched him, and took turns interrogating him over three or four hours. They wanted to know about guns and drugs in the neighborhood, and if Herring didn’t tell them something useful, he says they told him, they would find a way to put him away for years. Herring, then 51, had struggled with drug addiction as a young man and been arrested a few times as a result back in the 1990s, but had gone through treatment, turned his life around, and hadn’t gotten so much as a parking ticket in seventeen years. He had nothing to give the police.
At his arraignment, Herring found out he was being charged with weapons possession and got his first glimpse at the police version of his arrest. According to the cops, Officer Galliard was walking down the street when he noticed Herring standing outside his building with a bike and some grocery bags. At the very moment Galliard was walking by, Herring had pulled a handgun out of a translucent white shopping bag and transferred it into another, darker, shopping bag.
There were some puzzling elements to the official version of events. The police never looked for fingerprints on the gun, nor did any DNA testing. Despite four surveillance cameras in the area, the police never collected any video evidence. In short, there was no physical evidence linking Herring to the gun: only the word of Galliard.
More than seven months after his arrest, Herring learned that the police were adding a new wrinkle: They had arrested him based on a tip from a confidential informant. There had been no mention of the C.I. in any of the reports or paperwork surrounding Herring’s arrest, and the only documentation the police could provide now was some strangely contradictory paperwork for a $1,000 payout to the informant for helping get a gun off the streets. One letter from two months after the arrest requested the cash payment, to pass on to the informant. Another, from the day before, inexplicably stated that Sergeant Aidiniou and Detective Jean-Baptiste, who along with Lieutenant Babington made up the team Officer Galliard was working with, had alreadyreceived the payment.
Herring’s public defender, Deborah Silberman, a senior staff attorney at Brooklyn Defender Services, was suspicious, especially when she learned of a 2012 case involving Jean-Baptiste and Aidiniou that looked almost identical. As she kept digging, Silberman found more and more cases, stretching back to at least 2007, in which some combination of the same four officers — Aidiniou, Babington, Jean-Baptiste, and another team member, Victor Troiano — made arrests for weapons possession with little to no evidence linking the arrestees to the weapons except the officers’ word and the supposed tip-off from mysterious confidential informants. As she connected the dots, Silberman came to believe she was looking at a pattern that suggested people in East Flatbush were getting locked up on the basis of lies and fabrications, and no one — not the NYPD, not the Brooklyn district attorney — was doing anything about it.
Eugene Moore’s case was nearly identical to Herring’s. Moore was arrested in October of 2012 by a team including Jean-Baptiste and Aidiniou, after officers said they saw Moore with a handgun in a plastic bag hung from the handlebar of his bicycle. After a year in jail awaiting trial — he couldn’t afford bail — Moore learned that police were saying they were acting on an informant’s tip, even though the paperwork to support this claim was suspiciously thin. When the subject came up at trial, Jean-Baptiste first testified that he was sitting in his vehicle when he got a call on his department-issued phone from a confidential informant he’d worked with “well over thirty times” over the past three years, and that he recognized the call because he had the C.I.’s name and number stored on the phone. But when Moore’s lawyer asked if he still had his phone, the story changed. No, he longer had the phone, he testified, and besides, the call actually went to Aidiniou, and anyway he’d “never received a call on [his] phone from that person.”
The judge in Moore’s case, William Harrington, was unimpressed. Jean-Baptiste had been “extremely evasive to most of the questions,” he noted. “The only way I can determine whether the gun was visible is to accept the word of this witness, which I don’t find to be credible.” Harrington tossed the detective’s testimony and ruled the gun inadmissible. The case was ultimately dismissed and sealed.
There were other cases. After ten months in jail awaiting trial based on a similar police story, John Hooper and his lawyer were never told there was a C.I. involved in his arrest. It wasn’t until the day of a hearing to determine whether the physical evidence against Hooper had been obtained through an illegal search that Hooper was notified that police claimed an informant had told them when and where they could find Hooper with a gun. Hooper’s lawyer asked for a Darden hearing — a proceeding to establish, among other things, whether the informant was actually real — but the prosecution opposed it, and it never happened. Still, the judge in the case, Guy Mangano, didn’t buy Jean-Baptiste’s version of events.
“Supposedly this defendant doesn’t see the police coming but elects out of nowhere to take the object out of his pants pocket and dump it in a garbage can even though he didn’t see the police,” Mangano said. “And the police officer, based on the shape of the object, knew it was a gun. They then took him into custody before doing any further investigation.” It didn’t add up, the judge decided. “I find it incredible that they thought it was a gun,” he said. “It comes down to credibility whether I believe what this officer was able to see what he saw and reach the conclusions that he did.”
The judge held off on making his decision on the case until the next day. But before he could rule, prosecutors came to Hooper with a deal: Plead guilty to a lesser charge and get sentenced to the time he’d already served. Hooper took the deal.
Even when judges did insist that one of the officers’ informants present themselves in court, it didn’t happen. A 2008 case saw gun evidence dismissed after Babington announced his C.I. wouldn’t talk to the court, or even to prosecutors.
Possibly the strongest indictment of this group of officers on record is also one of the oldest. In 2008, Terry Cross was tried in federal court on charges of being a felon in possession of a firearm. The case against him relied on the testimony of Babington, Troiano, and another officer, but their story strained credulity. They claimed they’d arrested Cross after a C.I. fingered him in a photo lineup. But when asked to produce the array in court, what they came up with looked nothing like the output of the photo lineup program used by the NYPD. Judge Dora Irizarry didn’t buy it. “The evidence raises substantial doubt as to whether the photo-array identification [by the C.I.] ever occurred,” she said. “The bottom line here is that the testimony of the three police officers who testified here was just incredible, and I say ‘incredible’ as a matter of law,” she said. “Frankly, in my view I believe these officers perjured themselves. In my view there is a serious possibility that some of the evidence was fabricated by these officers. …It’s disturbing. It’s disturbing. …These officers are coming here before the court and committing perjury.”
In her written opinion, Irizarry went a step further, urging the U.S. attorney’s office to “look into this matter and make a determination as to whether or not charges should be brought against these officers for perjury. This is shameful conduct.”
There’s no evidence federal prosecutors ever took the judge up on her suggestion and investigated the cops. Cross would later sue the city over the episode, securing a settlement of $115,000 in 2010.
Having assembled this disturbing dossier, Silberman brought her evidence to the D.A., but it didn’t seem to be going anywhere. Finally, more than a year after Herring’s arrest, she took what she’d found to Stephanie Clifford, then a reporter at the New York Times. Landing as it did in the middle of a national crisis of confidence in our criminal justice system, Clifford’s story stoked a minor firestorm in its own right.
With media reports buzzing about a gang of Brooklyn cops suspected of inventing informants and lying on the stand, pressure was mounting on the Brooklyn district attorney’s office. On January 15 of 2015, prosecutors dropped the case against Herring, and then–Brooklyn District Attorney Ken Thompson made a statement to the press: “We will investigate the arrest of Mr. Herring and other arrests by these officers because of the serious questions raised by this case.” The NYPD announced it was launching its own Internal Affairs investigation into the officers.
The D.A. was looking into it; the furor died down. In the months that followed, spokespeople for the D.A. would confirm that the investigation was still under way, but would decline to provide any details on its progress, citing its ongoing status. The police department’s own Internal Affairs investigation of the officers was similarly opaque. In July of last year, the Timesreported that “at least one of those investigations was close to its conclusion,” according to an anonymous “person in law enforcement familiar with the case.” It would be the last anyone outside the district attorney’s office heard of the investigation — until Sarah Siegel’s case this spring.
Siegel was in a good position to find out the results of the investigations. She knew from her own research that the officers whose search warrant led to her client’s arrest had been called incredible by multiple judges, and were under investigation. And so she asked for what is known as Brady material — any information the prosecution may have that might help the defendant assert their innocence. This includes anything that might cast doubt on the credibility of any witnesses or law enforcement officers the prosecution is relying on to build its case.
But when Siegel asked the assistant district attorney handling the case, Laura Green, to turn over the relevant Brady material, Green responded that there was nothing to turn over. As Green would later tell the judge, at a July 11 hearing, “Nothing was turned over because after conferencing the case with the A.D.A. that’s in charge of our disclosures, as well as Appeals, there was no Brady turn over.” The reason, Green told Siegel on the phone, was simple: The officers’ personnel files were clean, and the D.A. had concluded its investigation having found no misconduct.
Siegel wasn’t satisfied: She didn’t have to content herself with the conclusions the D.A. drew behind closed doors, she argued before Judge Marguerite Dougherty in a July hearing. Case law entitled her to see all the materials used to come to those conclusions — and that meant all of the material of the investigation into the officers. The prosecution balked. “I don’t think that would be appropriate, for defense counsel to be able to send the People on a fishing expedition after no wrongdoing has been found,” the prosecutor argued.
A compromise was reached: The D.A. would turn over the personnel files and the materials of its own investigation to the judge, for her to review in her chambers, to determine if it contained anything useful to Siegel and her client. Green said she would get the material to the judge the next day. “I imagine it will be fairly voluminous,” she said.
The next day came and went. The prosecutor didn’t turn anything over. Instead, later that week, she came back to Siegel with an offer. Her client could walk, and as long as he didn’t get in trouble in the next six months the case would be dismissed. A few days later, Siegel’s client took the deal. With the case effectively closed, the D.A.’s office no longer had to show anyone what its investigation actually looked like.
In one sense, it’s hardly unusual that there’s been no public announcement from the NYPD about the outcome of an Internal Affairs investigation. Under a controversial New York statute perversely lodged within the state’s civil rights code, it’s actually illegal for the department to disclose the personnel records of a police officer. If a public school teacher is found to be abusing children, if a sanitation worker is disciplined for harassing passersby, if a bureaucrat is written up for sloppy paperwork, New Yorkers have a right to know about the job performance of the public servants in their employ. But if a police officer chokes a man to death, or plants weapons on people, or is a career perjurer, we are not entitled to know what professional consequences they encounter. In September Mayor de Blasio called on the state legislature to change this law, but it’s not at all clear that the political will exists in Albany to do so. The NYPD did not respond to requests for comment for this story.
The Brooklyn D.A.’s investigation is another matter. Thompson, who died of cancer last month, has been widely eulogized as a progressive reformer in criminal justice, in part because he talked with passion about rolling back the machinery of mass incarceration, but also because he did concrete things like increase the resources devoted to his office’s Conviction Review Unit, which has exonerated twenty-one people in recent years, six of them set up by disgraced former NYPD detective Louis Scarcella, who’s been widely accused of coaching witnesses and messing with evidence on cases from the 1980s and ’90s. It may have taken some pressure for Thompson to announce his inquiry into the officers in the 67th, but, once announced, it’s hard to see why the D.A. wouldn’t want to be equally public in announcing the conclusion of its investigation. After all, the last the public heard, there were serious questions about the honesty of a group of NYPD officers. If they were in the clear, why not make that news public, both to rehabilitate the officers’ names and to reassure New Yorkers that the system was working?
When the Voice asked the D.A.’s office about the news that it was admitting in court it had cleared the police officers, a spokesman confirmed that the investigation was concluded in November of 2015, a year ago: “The investigation involved an extensive review of documents, multiple witness interviews, and reviews of surveillance video,” the statement read, adding that the investigation “concluded that there was no wrongdoing by any of the police officers involved in the gun arrests in question, and that the allegations that the officers planted guns were categorically false. D.A. Thompson reviewed the report and agreed with the conclusion.” Asked just what sort of “wrongdoing” the D.A.’s investigation was concerned with, a spokesman declined to answer on the record, but a source familiar with the inquiry confirmed that its scope was limited to looking for criminal misconduct.
The D.A.’s statement answered some of the questions the Voicehad asked, but it left many more hanging. If the D.A. was really able to prove that the officers were acting on tips from informants, why was so little evidence of those communications presented in court, and why didn’t the informants present themselves when ordered to by a judge? Even if the C.I. tips were real, how did the D.A. ascertain that the guns in these cases really did belong to the defendants, since in each case the only evidence linking them was the testimony of the police? What did the D.A. discover that overcame the conclusion of three separate judges that these officers were not to be believed?
It remains unclear why — if the investigation into the officers of the 67th was thorough and complete — the D.A. was willing to drop a prosecution rather than let a judge see the content of its investigation. Sarah Siegel’s case indicates that the D.A. is now back to prosecuting based on these officers’ word. Yet if these cops are clean, why drop the case against her client and the one against Herring? Why agree to vacate Hooper’s conviction after the fact? If the police are telling the truth, the D.A. let gun criminals go free.
In fairness, prosecutors generally aren’t in the habit of alerting the public when they look into someone’s conduct and find no wrongdoing. It might have been courteous to let the public defenders who first flagged this issue know that the investigation was concluded. It might have been thoughtful to alert Herring — who’s now suing the police and the city for what happened to him, but who agreed nearly a year ago to suspend his suit pending the outcome of the D.A.’s inquiry — that it was indeed concluded. But it’s not strictly the D.A.’s job. However, as recently as this spring, the Voice was told there was still an ongoing investigation. It’s entirely possible that that was the result of miscommunication within the D.A.’s office. It’s also possible that absent any real systems of accountability for police officers, the public’s right to know is an abstract notion.
Getting illegal guns off the street has been a longstanding goal for the City of New York. Even as the city’s homicide rate has continued to plunge from its peak in the 1990s, the flow of illegal handguns into the city from out of state has continued. Under Mayor Bloomberg, a vocal advocate against gun violence, the recovery of illegal guns was the primary justification for the controversial and ultimately unconstitutional program of stop-and-frisk. Speaking in Aspen last year, Bloomberg articulated his rationale once more, saying the “only way to get guns out of kids’ hands is to throw them up against the wall and frisk them.”
Mayor de Blasio won election campaigning against stop-and-frisk, though he too is making the recovery of illegal guns a priority. In 2014 the NYPD made more than ten thousand arrests in which the top charge involved a weapons offense. In January of this year, de Blasio announced Project Fast Track, a series of programs designed to further crack down on gun possession and speed gun cases through the courts. “New Yorkers in every neighborhood in this city are united in their desire for safe streets,” he said. “To the few individuals responsible for New York City’s remaining gun violence, our message is clear: You will be found, and you will be quickly prosecuted to the full extent of the law.”
The question facing the mayor, the police, and prosecutors is whether they can ramp up police enforcement and accelerate gun prosecutions without further undermining public trust in the criminal justice system. “The majority of the Bill of Rights has to do with protecting citizens from the power of the state,” says Scott Hechinger, a senior attorney with the Brooklyn Defenders who helped Silberman bring her concerns to the D.A. in 2014. “For every one stop-and-frisk or bad search that turns up a gun, there are a thousand more that turn up nothing. So if we’re thinking about public safety, you’ve got to be thinking about the relationship between police and policed. If the Fourth Amendment breaks down, then we become even more lawless.”
The fact that the Brooklyn D.A. is evidently back to prosecuting cases based on the word of police officers whom judges have repeatedly found to be giving unbelievable testimony in gun cases should give us all pause, says Silberman.
“If you look at any other field, a physician who lies to a patient, a principal who lies to a bunch of parents, you look at the nanny who a parent suspects hasn’t treated a child properly, any parent would say it’s not worth the risk,” she says. “If you begin to mistrust your doctor because you feel they haven’t been completely forthcoming or they haven’t followed all the rules they’re supposed to, you don’t want to go back to that because you don’t feel safe with that person. And yet when it comes to police officers engaging in questionable behavior, improper behavior, it seems like we’re willing to look the other way.”