The NYPD Tapes: A Shocking Story of Cops, Cover-ups, and Courage (33 page)

And then Kelly dealt with the questions swirling around Marino, who remained in place despite the Schoolcraft claims and his human growth hormone disciplinary case. On November 24, Internal Affairs concluded that Marino had failed to tell them that Larry Schoolcraft had accused him of taking documents, a recorder, and other property from Adrian’s apartment. Personnel records show that he has admitted to the allegation and agreed to the fairly minor penalty of the loss of six vacation days.

To put this NYPD minutiae in context, police officers are obligated to tell Internal Affairs of any allegations made against them, and Marino was a chief in the department, obligated to uphold every rule as an example. Once again, Kelly had given Marino a slap on the wrist. A cop who did the same thing—failed to report a serious allegation—would likely have been sent to Siberia. Just compare this to how Schoolcraft was treated for going home sick 45 minutes before the end of his tour.

As a result, Marino was still in place as number two in Brooklyn North three weeks later when he was heard threatening cops in the 79th Precinct who were planning to refuse to write summonses. “Just try it,” Marino said, according to the
Daily News
. “I’ll come down here and make sure you write them.”

Then, as he did with Mauriello, Kelly picked another holiday weekend to address the Marino controversy. Two days before Christmas, Kelly ordered Marino transferred out of Brooklyn North and sent to a Staten Island command. The
Daily News
portrayed the transfer as related to the 7–9 allegations,
not the handling of the Schoolcraft affair. Indeed, it had been more than a year since Marino’s confrontation with Schoolcraft, and only now was he transferred.

The same day, the
New York Times
filed a lawsuit against the NYPD, saying that Kelly had repeatedly violated state Freedom of Information law by hiding information from the press and public. Things had sure changed since Kelly’s pledge of “transparency” at his appointment way back in January 2002.

On January 5, 2011, Kelly took the final step during this period to blunt allegations of widespread crime report manipulation. He named three former federal prosecutors to investigate the accuracy of crime statistics—Robert Morvillo, a distinguished defense attorney, David Kelley, a former U.S. Attorney for the Southern District of New York, and Sharon McCarthy, a former special counsel to then-Attorney General Andrew Cuomo. Kelly stated, with a straight face, that the panel would complete its work in three to six months.

In a statement, Kelly said that the annual misclassification of crime reports was just 1.5 percent. “Nevertheless, every system can be improved and our goal is a misclassification rate of zero,” he said. “By empaneling experienced, independent, objective experts to review our crime reporting system and the quality control mechanisms we have in place, I hope to establish the overall reliability of our statistics and identify any areas in need of improvement.”

Kelly’s use of the word “independent” in his statement was a direct slap at critics who were demanding an outside investigation. His timeline was charitably optimistic, but the gambit became yet another move that disappeared behind the walls of police headquarters.

In sum, Kelly had transferred and charged Mauriello and four other 8-1 cops for downgrading a grand total of
two
crimes. He had transferred Marino and taken six vacation days from him. He had appointed Carione to do a review that never saw the light of day. He appointed a panel that would disappear into the mist. The Internal Affairs Bureau had concluded that Schoolcraft cooked up everything with his dad and implied that Adrian was a racist. Kelly charged no one with any misconduct for their actions on Halloween night. He had blocked outside investigation, or no one has the cojones to investigate on their own. And the conclusions of the QAD report
were still buried in some anonymous drawer in police headquarters. Those would not see the light for another year.

In short, it appeared, he was running a four-corners stall, right out of North Carolina basketball coach Dean Smith’s playbook, trying to wait out the Schoolcraft allegations. The Bloomberg administration had three years left in office. It could just work.

CHAPTER 15

SMOKING GUNS AND “HAM AND EGGERS”

T
here are thousands of lawyers in New York City. In buildings along Park Row alone, across from the wrought iron gates of City Hall, hundreds of barristers pay for their summer houses and put their kids through school on money earned by suing the very municipal agencies they can see through their windows. Wags whimsically called them “ham and eggers” because that’s what they ate, out of deli paper and aluminum foil, with their cart coffee, as they scurried to court from the subway.

In 2012, the city spent hundreds and hundreds of millions to settle lawsuits, an amount that was more than the budgets of entire municipalities. Thanks to laws favorable to tort lawyers and the relative vagueness of federal civil rights law, the New York Police Department actually was kind of easy to sue. All you needed was an aggrieved plaintiff and some modest corroboration—proving that a given officer was at a given scene was often enough. Because of the sheer volume of lawsuits, the city had no choice but to try to settle the majority of claims.

The other side of the coin was that police officers often seemed to do things that violated people’s civil rights. Take January 2012 alone. In that single month, 40 people filed lawsuits solely alleging that a stop and frisk violated their rights. Extrapolated out, that’s 360 such lawsuits in one year. Let’s say those lawsuits settle for an average of $30,000 apiece. That’s a $10.8 million bill to the city just because cops aren’t following the rules for stops. Taxpayers foot the bill, and not one dollar comes out of the NYPD’s budget.

Over the five years between 2007 and 2012, the number of lawsuits filed against the NYPD grew to more than 2,000 a year. The number of claims exceeded 8,000. There were so many federal civil rights cases being generated that the court created a special set of rules in an attempt to expedite the cases. Plaintiffs’ lawyers claimed the rules were meant to strong-arm them into settling for lesser amounts.

Oddly, the city rarely examined these cases for commonalities and trends to identify problematic officers and lead to policy or procedural changes that would reduce the amount flowing out City Hall’s doors.

If an officer’s actions on the job kept costing the city money, shouldn’t there be some kind of examination of the reasons and steps taken to stop it? Instead, the city just wrote the checks, the lawyers took their cut, and the officer went on doing what he was doing before. In some ways, if you strip away the rhetoric, it was a perfect circle, a good racket in a tough city.

But the Schoolcraft lawsuit was hardly a routine case. Back in 2010 when his profile was the highest, Schoolcraft and his father started searching for a lawyer. He would have preferred that an outside agency, like the feds, were at that moment knocking on doors and sending out subpoenas. But that wasn’t happening. The only option they had left was to sue. Father and son, as was their way, nattered at each other endlessly over who to choose for what looked like it would be the final act in their struggle with the NYPD.

At first, someone recommended Norman Siegel, a well-known civil rights lawyer who had run the New York Civil Liberties Union for years. But that interaction didn’t go so well, and the Schoolcrafts kept looking.

By then, Adrian had given a deposition to the Center for Constitutional Rights in its budding class-action lawsuit against the police for their endless stop and frisk campaign. One of the lawyers attached to that case, Jonathan Moore, seemed appealing.

Schoolcraft recalled that at one point in their talks, Moore told him to settle in for a long fight. The city wasn’t going to go easy on him, Moore said.

But the Schoolcrafts, after a short while, decided to move on from Moore as well and discontinued their representation agreement with him.

Next came one of those very lawyers encamped across from City Hall. Norinsberg and his associates, Gerald Cohen and Josh Fitch, were working on the Stinson case, a class-action lawsuit over quotas—on behalf of New Yorkers who felt police ticketed them just to fill demands from their precinct commanders and not for some law enforcement reason. Schoolcraft’s testimony and his tapes were perfect to aid in their case.

Schoolcraft, giving his second deposition of the month, sat and talked with them for that case and told them what he knew about the quotas in the 81st Precinct. Seeing the opportunity, Norinsberg began talking with Schoolcraft about representation, and they finally signed an agreement. He assured the Schoolcrafts that their case would be at the very top of their agenda, and that the firm has the finances to fight the city in what was certainly going to be a no-holds-barred contest that would span years before it was resolved.

“This is what you go to law school for, to fight a case like this,” Norinsberg told me. “There was a terrible injustice, there were important Constitutional issues that involved an actual police officer.”

At the moment, in the summer of 2010, Norinsberg was flush with the prospect of a major new case, and he and his associates, Fitch and Cohen, set about writing the massive complaint that would hold both the NYPD and Jamaica Hospital liable for what happened to Adrian.

After the civil complaint was filed in the Southern District of New York, U.S. District Judge Robert Sweet was assigned to the case on August 19, 2010. Robert Workman Sweet, at age 88, was one of the oldest judges in federal court. He attended Yale Law School, graduated in 1948, and then worked as a federal prosecutor. He was a deputy mayor for the city of New York from 1966 to 1969, coincidentally during part of the period of the Serpico investigations, and had also worked for Skadden Arps, a white-shoe law firm. President Jimmy Carter appointed him to the bench in 1978. Among the clerks, the most famous was Eliot Spitzer, a former New York governor.

Sweet had presided over many big cases, including the McDonald’s obesity case and the case of journalist Judith Miller, who was accused of violating federal law for refusing to name her Bush administration source for articles
about weapons of mass destruction in Iraq. He also had spoken out against harsh mandatory minimum sentencing policies on drug cases, calling them unconstitutional. He once said that the war on drugs was “expensive, ineffective and harmful.”

Three weeks later, Dr. Isak Isakov, one of the doctors who examined Schoolcraft in the psych ward in 2009, was the first to respond to the complaint. His lawyer, Brian Lee, filed a boilerplate denial of every claim in the complaint. Lawyers for Jamaica Hospital followed with similar boilerplate denials. The hospital moved for dismissal of the case on October 12, arguing that it was not an arm of the government, and that the doctors in the case were not technically employees of the hospital.

On December 2, the city filed its own answer to the complaint, again essentially denying every allegation in the Schoolcraft complaint. After this initial flurry of activity, the case slowed down as 2011 began.

As the new year started, the Queens District Attorney’s office reappeared in the story, having been absent, at least publicly, for a year. The office requested the recording of Halloween night and medical records from Schoolcraft’s file. His lawyers complied. Once again, there was some sign of an outside investigation, but its purpose was opaque to the Schoolcrafts. Later in the year, Adrian met with prosecutors from the office for about 90 minutes. After that, the DA’s office fell silent again.

The following month, the Schoolcraft recordings were used for the first time as evidence of quotas in a trial involving a Brooklyn woman who claimed she was falsely arrested. In awarding the woman $75,000, the jury found that the police had a policy “regarding the number of arrests officers were to make that violated plaintiff’s constitutional rights that contributed to her arrest.”

And yet another supervisor was caught on tape pushing quotas. The NYPD of course continues to deny their existence.

That May, Schoolcraft won a partial victory in court: Sweet ruled that while the federal claim against the hospital would be dismissed, the state claim would survive and stay in the case. And he ordered discovery to proceed, meaning that both sides would finally have to show their documents and then depose each other’s witnesses. Regarding the hospital, Sweet ruled that Schoolcraft had sufficiently argued that the hospital and police “collaborated
in depriving him of his Constitutional right.” For the rest of the year, little of substance was added to the case file.

Separately a police officer named Vanessa Hicks sued the city, alleging she was fired for not writing enough tickets and not stopping and frisking enough people.

And Kelly finally closed the book on Marino’s human growth hormone case, ordering him to give up 30 vacation days and serve probation for a year. It had taken three years for the case to come to a resolution.

A few weeks later, Kelly’s crime statistics panel reached that magical six-month point that the commissioner touted in his statement. No report appeared.

In July, another lawsuit was filed that included material from the Schoolcraft recordings. This one was filed by Scott and Stephen Faine, who claimed they were arrested in the 81st Precinct as part of a quota. Their lawyer, Cynthia Conti-Cook, called the arrests concrete evidence of the effect of the police campaign to clear the streets that emerged in the Schoolcraft tapes.

“There is a strong connection in this case between the orders given to 81st Precinct officers in the tapes to ‘clear corners’ and the motivation these 81st Precinct officers had to arrest these men,” Conti-Cook said. “There was no reason, but for the motivation to ‘make numbers,’ in either case for the officers to stop, question or arrest Scott.”

The stop and frisk class-action lawsuit that had been filed against the police department now began to gather real steam. The case was potentially a massive problem for the city, which had fought it at every juncture for more than two years. That September, U.S. District Judge Shira Scheindlin issued a major decision, denying the city’s motion to dismiss the lawsuit.