It lingers in our psyche as insult upon injury. Under their union contract, New York City police officers were given 48 hours to confer with a union representative or a lawyer before they could be made to answer to the Internal Affairs Division. To those of us concerned with police brutality, it was a poke in the eye: two whole days to come up with a story that would fit with the public facts but excuse any police misconduct.
But the notorious 48-hour rule is no longer in force. It never had the force of law; it was only a provision in the union contract. The city sought to take it off the table in negotiations with the Patrolmen’s Benevolent Association (PBA) and it won before the Public Employment Relations Board (PERB). Sensing its loss of privilege, the PBA appealed the PERB decision all the way to the state’s highest court. It lost in March 2006. The Court of Appeals said that the need for “strong disciplinary authority for those in charge of police forces” outweighs the policy of encouraging collective bargaining.
But despite the demise of the 48-hour rule, not all of the five officers involved in the shooting of Sean Bell have yet been questioned by Internal Affairs. On Dec. 29, one detective was questioned by the Queens district attorney. He testified without immunity against possible later charges. Another has said he would testify to a grand jury, a sign that he believes his conduct is justifiable.
The other three are keeping their options open, as is their right unless and until District Attorney Richard Brown decides to charge them with a crime. But nothing prevents the DA from interviewing each of the officers as witnesses while the events are fresh in their mind. The right against self-incrimination only applies if and when suspicion begins to focus on an individual officer and he becomes a target of a criminal investigation.
Why hasn’t District Attorney Brown interviewed all of the officers involved in the shooting of Sean Bell on Nov. 25? The only explanation is that the DA lacks the political will to scrutinize the conduct of the officers of the NYPD. Assistant district attorneys rely on cops each and every day to determine what charges to bring and to help them prove their cases. Prosecutors are reluctant to bite the hand that feeds them information, especially as they become emotionally invested in a case.
Civil rights activists are correct to call for a special, independent prosecutor to eliminate this institutional conflict of interest. The governor is permitted to remove the district attorney in a specific case and replace him with his attorney general. Outgoing National Lawyers Guild New York Chapter President Marty Stolar notes that this power was used by George Pataki in 1996 to remove Bronx District Attorney Robert Johnson from a case because Johnson said he would not ask for the death penalty. Elliot Spitzer should consider intervening in the Bell case to ensure that all of the evidence comes out. This would be a fitting beginning for a man in whom many have invested their hopes for justice.
This column is a project of the National Lawyers Guild, New York City Chapter. Contact us at 212-679-6018.