Staten Island Prosecutors Are Creating A List of Cops They Don’t Trust To Testify

Prosecutors in Staten Island are building an internal list of NYPD officers who they will not allow to testify in court, Gothamist/WNYC has learned. In a November letter sent in response to a Freedom of Information Law request, the Staten Island District Attorney’s Office noted it was constructing a police witness exclusion list, making it only the second New York City DA known to do so.

For police officers, the consequences of being on one of these “Do Not Call” lists are far more severe than in one of the broader databases that DAs across New York City have quietly created to facilitate disclosures about potential honesty issues. While those broader databases collect records, such as court findings, to help prosecutors make disclosures to defense attorneys about alleged dishonesty, the “Do Not Call” lists block prosecutors from ever calling those officers to the stand in the first place.

In November, the Brooklyn DA admitted to having a similar list, which it released following a FOIL appeal by attorney Gideon Oliver on behalf of Gothamist/WNYC. The Manhattan DA has also said it will not call certain officers to testify, but declined to comment on whether it has a formal list of such officers.

In recent years, reform prosecutors across the country from Philadelphia to Orlando to St. Louis have adopted similar police witness exclusion programs, sparking clashes with police unions and conservative lawmakers.

Tyler Maulsby, chairperson of the New York City Bar Association’s Committee on Professional Ethics, praised the Staten Island District Attorney’s move.

“I think it’s a positive step forward because unless that list exists there is going to be a great deal of inconsistency in how cases are handled every time one of those officers’ names comes up in a case,” said Maulsby, who is also counsel at Frankfurt Kurnit Klein & Selz.

“Without being able to track that information it creates a big risk area for the Staten Island DA,” he continued, noting that prosecutors could be exposed to future sanctions if they unknowingly took on cases with officers known to be dishonest by their colleagues.

Paul DiGiacomo, president of the Detectives’ Endowment Association, countered that such a list could ruin officers’ careers over an innocent mistake or misunderstanding.

“Just because a particular DA makes a decision, [it] doesn't mean it's the right decision," he said. “And it's unfair to the members because there is no recourse or avenue of challenge.”

In Philadelphia, a police union sued District Attorney Larry Krasner over his office’s police witness exclusion list, though the union’s efforts have thus far proved unsuccessful.

In its November letter, the Staten Island District Attorney refused to release the emerging police witness exclusion list, which it said “remains under construction.”

“It’s only fair to the people that are being policed that they know who the good officers are and who the bad officers are,” said Mark Fonte, an attorney with the Staten Island Criminal Defenders Association. “If the District Attorney’s Office feels these officers are sufficiently and inherently unreliable, we should know it.”

Currently, the Staten Island DA is the only one in New York City which has not released any of its internal police credibility records to the public.

In April, Gothamist/WNYC broke news that all five borough prosecutors were building secret databases tracking alleged officer dishonesty. Over the last five months, District Attorneys in the Bronx, Brooklyn, Queens, Manhattan, and for the Special Narcotics Prosecutor have released some portions of those databases in response to FOIL appeals by Gothamist/WNYC.

The disclosures have made the public aware of dozens of officers’ alleged credibility issues, several of which were previously unknown to the defense bar.

The Staten Island DA did not respond to a request for comment. In a statement, the NYPD noted that it solicits judges’ adverse credibility findings from prosecutors, using them to consider possible training, reassignment or investigation. The department has also said it does not consider every such finding to be accurate, and mentioned there is “no mechanism” for officers to appeal such findings.

UPDATE: In a statement, the Staten Island District Attorney’s Office cited New York’s new discovery laws as the impetus for its police credibility tracking initiatives, though it did not address questions about the police witness exclusion list.

“The new laws’ requirements, along with the need to turn over such information rapidly, have prompted us to rethink how we maintain information on thousands of witnesses for potential future disclosure,” the District Attorney’s Office said. “This includes reviewing past cases where a determination had been made that a letter should be sent to the defense regarding an officer who was expected to testify at a hearing or trial. Similarly, we are reviewing any current or past cases where a court made an adverse credibility finding against an officer.”

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