The Philadelphia District Attorney’s Office has asked the city’s Police Department for nearly a decade’s accounting of serious violations by its officers so it can compile a comprehensive roster of those who have lied while on duty, used excessive force, racially profiled, or violated civil rights.
The exercise, unprecedented in scope in recent city history, is designed to help prosecutors flag officers with credibility issues early in a case and possibly prevent their testimony, District Attorney Larry Krasner said in an interview last week. Krasner declined to estimate how many officers may ultimately end up on the roster, but said the number would almost certainly exceed the 66 on a similar list developed by his predecessor.
The new protocol also will call for prosecutors to disclose an officer’s past infractions to defense lawyers. Krasner and the head of his conviction integrity unit, Patricia Cummings, said that the roster and new protocols are important to ensure prosecutors pursue cases built by honest and reliable police, and that potentially damaging information against officers is turned over to defendants as required by law.
Krasner dubbed the effort “one of the biggest challenges this office has ever faced.”
Cummings said: “Our primary objective … is making sure that we are fulfilling our constitutional obligations within the prosecution of a criminal case.”
The policy is being developed in response to a similar program begun under former District Attorney Seth Williams, whose administration created a so-called “do not call” list of officers with credibility issues that largely prevented those officers from testifying in court cases. But Williams kept his program secret, and did not disclose to defense attorneys which officers had been placed on the list or their violations — something legal experts said likely violated rules requiring prosecutors to share evidence favorable to defendants. Bruce Ledewitz, a law professor of law at Duquesne University, equated such a practice to “playing with dynamite.”
Krasner released Williams’ list in March under a court order. The public defender’s office subsequently filed more than 6,000 petitions for new trials for defendants arrested by officers on the roster. Courts already have overturned some of those cases.
The new protocols, which Krasner said are still being finalized, would dramatically increase the information that prosecutors disclose about abuses committed by officers who appear as witnesses, though Krasner said he was not certain whether he would make public the new policy document or the list of tainted officers upon completion. Krasner criticized his predecessors for failing to disclose such information to defense attorneys previously, saying they seemed to live in the “land before time.”
“We have to move as quickly as we can with issues that have been, at best, ignored for decades in this office,” Krasner said.
Edward G. Rendell, the former Pennsylvania governor who served as Philadelphia’s district attorney from 1978 to 1986, said he could not recall similar undertaking by the city’s prosecutor’s office. When he worked in the DA’s office, he said, staffers largely maintained an informal understanding of which police were more reliable witnesses than others.
Samuel Walker, a University of Nebraska at Omaha criminal justice professor, said Krasner is among a group of prosecutors nationwide now are using their offices to improve police integrity. He said Krasner’s effort, especially with his emphasis on ensuring that problematic officers do not testify, seemed in the forefront of the movement.
“They can use the power of their office,” he said of District Attorneys such as Krasner. “From the top they can say, ‘Don’t send this guy over. We’re not going to use this guy.’ ”
The new policy could have a broad impact on criminal justice in the city, as questions remain over which officers will be placed on the list, for what reasons, and for how long. It also was not immediately clear whether an officer’s inclusion on the new list might impact old cases they helped build. It has not been uncommon for new accusations against an officer to undercut long-closed cases.
For instance, several years ago, after federal prosecutors accused a group of Philadelphia narcotics officers of misconduct, the District Attorney’s Office agreed to drop 800 cases and free scores of convicted defendants. The City of Philadelphia has since paid out at least $2 million to settle civil suits.
More recently, Krasner’s office requested a new trial for the rapper Meek Mill after it was revealed that Mill’s arresting officer, Reginald V. Graham, had been included on Williams’ “do-not-call list” because federal authorities had been investigating him for alleged corruption. A judge is expected to rule on Mill’s fate later this month.
John McNesby, president of Fraternal Order of Police Lodge 5, said the new policy could create an “administrative nightmare,” with potentially hundreds of police barred from testifying even if the allegations against them were false.
“You’re just painting the whole department with a broad brush,” said McNesby.
Krasner said he’d met with McNesby and union lawyers to discuss the issue. McNesby said that meeting was months ago to discuss Williams’ list, and that the union had not been consulted about the new policy.
Capt. Francis Healy, special adviser to Police Commissioner Richard Ross, said the department was “looking to make sure we can comply as quickly and promptly” as possible with the request from the prosecutor’s office. He said the Internal Affairs Division had provided similar information to prosecutors in the past, but acknowledged this request was broader than in previous instances.
In building a comprehensive list of potentially tainted officers, Cummings said prosecutors have asked the Police Department for “any information contained in [internal] files that equals the qualifying misconduct for every officer” dating back to 2010, she said.
Healy said the department would comb through Internal Affairs records and findings by the Police Board of Inquiry. He also said the department would likely be “over-inclusive” in meeting the DA’s request, but he did not know how many complaints or records might ultimately be sent.
Cummings said prosecutors would also work with the department to obtain such information on a periodic basis moving forward, allowing prosecutors to modify the list as new instances of potential misconduct arise.
Compiling a database of infractions, Krasner said, will help prosecutors be aware of officers whose potential testimony might not be trustworthy, and notify defense attorneys. Krasner said it could benefit the Police Department to know which officers his staff has deemed too questionable to testify.
“They need to know that so that they don’t put an officer whose credibility is in question in a position, when they could have put an officer deemed credible, [and] thereby mess up a case,” he said.
Krasner and Cummings declined to say whether an officer’s inclusion on the list would automatically bar the officer from testifying. They said evaluations would be made on an individual basis, with the approach potentially varying depending on the details of the officer’s offense or role in the prosecution. Cummings did say prosecutors generally view lying as the most damning offense for a potential witness — and that they would disclose any instance of such misconduct, something that was not mandatory under Williams’ policy.
“We take [it] very seriously when somebody gets in trouble for lying and you absolutely have to disclose,” she said.
Cummings said an officer’s inclusion on the list would not necessarily be permanent. An officer who completes a probationary program for drunken driving, for example, may be taken off the list after returning to active duty.
At the same time, Cummings said prosecutors may consider violations that are not part of the police disciplinary system. If a judge concluded that an officer’s testimony was not credible in a particular case, for example, the District Attorney’s Office would likely take that into account even if Internal Affairs did not weigh in, she said.
McNesby, of the police union, said the policy seemed “too broad,” and that officers could be implicated for a variety of reasons that might not be substantiated.
“You’re going down a slippery slope,” McNesby said.