The repeal of New York’s 50-a could be a boon to defense attorneys

The repeal of New York’s 50-a could be a boon to defense attorneys

With a major barrier to police complaints now lifted, Empire State public defenders have another avenue for getting information.

Written by
Edited by Michael Morisy

The recent repeal of New York’s Civil Rights Law 50-a, which barred access to certain law enforcement disciplinary records, could help to support the work of the state’s defense attorneys. Though prosecutors are expected to provide the defense with evidence that could prove exculpatory, they sometimes don’t, and with 50-a’s barrier to police complaints now lifted, public defenders and others have another avenue for getting at information: the state’s Freedom of Information Law (FOIL).

“FOIL can serve as a check upon prosecutors who fail to comply with the spirit and intent of Brady where ‘the prosecution is required to disclose information that is both favorable to the defense and material to either defendant’s guilt or punishment,’” as attorney Cory Morris recently wrote in the New York Law Journal. Morris is working with MuckRock on a series of requests to New York police departments for law enforcement disciplinary records.

Materials like body camera manuals, for example, may have important details on the equipment’s capabilities and uses, and though an agency might not want to volunteer such materials, FOIL can also help access this important context about how a police department or other government agency operates. (In October, New York City provided MuckRock with its manual for Axon body cameras and a slide deck used for body camera training. You can find other body camera requests here.)

And look at the example of the case of Derrick Ulett. When he was charged with the 2008 murder of Ruben Alexandre, defense counsel knew there had been building cameras present for the scene outside 48 St. Paul’s Place. They’d never seen any footage, though, and according to the prosecution, this was because there wasn’t any. “[I]sn’t it common sense that you would have seen that video if there had been a video?” the prosecutor asked when pressed on the point. The case was tried, Ulett was found guilty, and the matter’s materials were put into a box at the District Attorney’s Office.

They were pulled out again years later when the defense filed a New York Freedom of Information Law (FOIL) request for the prosecution’s records, among them a copy of the video that had supposedly never existed. It contradicted the testimony of key witnesses, the state’s Court of Appeals ultimately found, constituted a violation of Brady obligations and undermined the validity of the trial. Ulett would get a new one. Cases like this help to highlight the value FOIL access has for the integrity of the criminal justice system.

“Law enforcement disciplinary records” means any record created in furtherance of a law enforcement disciplinary proceeding, including, but not limited to:

(a) the complaints, allegations, and charges against an employee;

(b) the name of the employee complained of or charged;

(c) the transcript of any disciplinary trial or hearing, including any exhibits introduced at such trial or hearing;

(d) the disposition of any disciplinary proceeding; and

(e) the final written opinion or memorandum supporting the disposition and discipline imposed including the agency’s complete factual findings and its analysis of the conduct and appropriate discipline of the covered employee. (From the NY Freedom of Information Law)

The actual effect of 50-a’s repeal on problematic officers is still an open question. The reality of FOIL, as frequent requesters know, can get complicated, as different records officers and departments handle and haggle over responses.

Do you have thoughts on how public records can be used to support the work of public defenders? Let us know.

Image via Fabien Bellanger on Unsplash