For those who scoff at suggestions that we need to police the police, you might want to take a look at one of the latest NYPD fiascos. The background of this case includes at least six instances where cops from New York’s 67th Precinct in…
The cops are fuming! As they see it, a New York Supreme Court Justice did the unthinkable. He chose to believe the testimony of half a dozen civilians, and effectively discounted contrary testimony by four police officers. As a result, Justice Michael Gary, after a bench (non-jury) trial, dismissed gun charges against the defendant. Here’s the background.
Back in 2012, in the wake of Hurricane Sandy, officers say they observed the defendant, Marty Sully, firing into a crowd outside a Crown Heights nightclub. The eyewitness identification, they say, was “clear as day,” including the fact that Sully was allegedly firing the gun from underneath a street lamp, making for an easy i.d. They also say they found a gun near Sully, although the gun was not subjected to any forensics testing. So what could have happened to sway the judge not to believe the officers? Well, it depends.
On the law enforcement end, the spin on the judge’s decision began immediately. They say that Gary is, effectively, an outlaw judge. The Brooklyn D.A. said he found the officers’ testimony to be credible. No big surprise there. But they also quote one (unidentified) law enforcement source as saying that Judge Gary’s behavior has been “bizarre.” Well, maybe bizarre is the eyes of the beholder. Here’s the flip side of the equation: Six people testified that Sully did not fire a weapon, and that he “hit the deck” like everyone else when the shots rang out. So in terms of conflicting testimony, it’s about even. The question then becomes why would the judge choose to believe one set of witnesses rather than the other? There are two answers to this question.
The first involves the reason we require live testimony in most cases. When someone is testifying in person, the jury (or, in a non-jury case, the judge) can make a determination regarding truthfulness based not only on the words the witness uses, but on the non-verbal aspect of the testimony. A finding that someone is lying, for example, may be based largely on the witness’ demeanor. So believing one witness over another is often the result of weighing their credibility in light of all the circumstances, after seeing and hearing them testify in person.
The second issue relates to the fact that the New York City Police Department appears to have something of a public relations problem, which makes some people suspect of an officer’s testimony. The problem stems from a lot of different things, among them the shooting of unarmed civilians, police brutality, and similar conduct. It also stems from a growing feeling that something is definitely wrong with the state of the NYPD. Just last week, for example, the New York Times reported that there appears to be a growing suspicion that cops in Brooklyn have been involved in an ongoing conspiracy, including the planting of evidence, to justify arrests of innocent people on gun charges. More than sufficient information, many think, to justify taking a hard look the testimony of police officers, and refusing to accept their version of a situation based merely on their status as members of the NYPD.
George Vomvolakis Law Offices
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New York, NY 10016