One judge said she believed the testimony of a Bronx defendant’s 64-year-old mother more than that of the two New York City police officers who arrested him.
Another said she didn’t buy the testimony of an officer and his colleagues, concluding that they had stopped a car not because they’d seen its occupants break any laws but because it was driven by “three young men of color.”
A third jurist toyed with using the word “perjury” to describe the testimony of an officer who repeatedly contradicted himself, claiming, for example, the defendant had both told police and not told police where he lived.
In each of the cases, the officers’ testimony was supposed to help prosecutors secure convictions against people charged with illegal gun possession. Instead, the cases fell apart, done in by the officers’ own dubious statements. Yet prosecutors had pursued trials knowing there was reason not to put these cops on the stand.
That’s because they were among hundreds of officers placed on the Bronx district attorney’s “No Fly List,” a secret roster of officers whose cases are supposed to get an extra level of scrutiny by prosecutors.
The list was created a decade ago amid a sprawling investigation into the city’s biggest police union and its role in helping officers “fix” tickets issued to family and friends for speeding, illegal parking and other traffic offenses. It grew to 664 names and was intended to help prosecutors vet cases that might rest too heavily on officers whose ties to the scandal could raise questions about their conduct and credibility.
Ten years after it was first created, the No Fly List itself remains secret by judicial seal.
But ProPublica has obtained a version of the list. And a review of court records involving 164 No Fly officers still currently on the force shows how one of the most sweeping efforts by prosecutors to flag cops with credibility concerns hasn’t prevented them from jeopardizing cases.
Prosecutors aren’t barred from relying on No Fly officers, and a spokesperson for the Bronx District Attorney’s Office wouldn’t say how many have testified, only that “hundreds” had done so in successful prosecutions. But the prosecutions that failed because of dubious statements by No Fly officers illustrate the conflict inherent in expecting prosecutors to serve as a check on the very officers they need to build cases.
And even as new laws have forced prosecutors and police in New York to begin making public more information about officers’ conduct and credibility, the full picture of a New York Police Department officer’s history is rarely known outside the department.
Until recently, prosecutors could wait until the eve of trial to disclose damaging information about arresting officers to defendants and their lawyers. A 2019 law was intended to speed up those disclosures so that defendants would not be in the dark as they weighed whether to go to trial or agree to a plea deal. But the scope of the disclosure requirement has been challenged in court by prosecutors. And defense lawyers say that they still find themselves frequently making plea deals knowing little or nothing about the history of the arresting officer, and long before a judge might start asking questions.
For the public, even less information is readily available, even with the repeal last year of a state civil service law that had long been used to keep secret officer disciplinary records. The state’s vast court record system can’t be searched by the name of officers involved in a case, making it impossible for the public, and even judges, to readily identify and examine all of the cases involving a particular officer. To identify failed prosecutions that hinged on the credibility of No Fly officers, ProPublica reviewed judicial decisions, press accounts and newly public disclosures from prosecutors.
Those records show the aborted gun prosecutions weren’t the only cases in which judges have assailed the credibility of other No Fly officers.
A Bronx detective, for example, who was disciplined in the ticket-fixing probe has twice been found not credible by federal judges in gun cases that ultimately fell apart. His name doesn’t appear on the version of the No Fly List examined by ProPublica, but a person familiar with the master list, speaking on condition of anonymity to discuss the still-secret document, confirmed the detective is on it.
And beyond blown prosecutions in which a judge publicly questioned the credibility of the officer, court records show that people arrested by No Fly cops have turned to the civil courts to seek accountability for claims of wrongful arrest and other misconduct. At least 77 currently active officers have been the subject of such lawsuits, which the city has paid nearly $7 million to settle.
Richard J. Davis, a former federal prosecutor who chaired the city’s Commission to Combat Police Corruption in the late 1990s, said prosecutors and police officials who continue to put such officers back on the street — and on the stand — do so to their own detriment.
“It’s important because it undermines confidence in the criminal justice system,” he said.
The killing of George Floyd and the national reckoning on policing that it prompted accelerated a push for increased transparency by prosecutors in New York and elsewhere. But the story of the No Fly List highlights how, more than a year after Floyd’s death, the public still has a constricted view into misconduct and discipline among NYPD officers.
‘It’s a Courtesy, Not a Crime’
When the indicted ticket-fixing officers were arraigned at a Bronx courthouse in October 2011, hundreds of off-duty officers summoned by the city’s largest police union showed up, heckling prosecutors and investigators while holding signs that read “It’s A Courtesy, Not A Crime.”
Patrick Lynch, the longtime head of the 24,000-member New York City Police Benevolent Association, argued that ticket-fixing wasn’t a criminal act but a “long standing practice at all levels of the department” that was ingrained in NYPD culture. (A spokesperson for the union hasn’t responded to phone and email messages seeking comment for this story.)
But the investigation revealed that union officials were at the center of the scandal, recorded on secret wiretaps coordinating efforts to make tickets disappear by tearing them up, altering them and sometimes even removing tickets from precinct summons boxes. In other cases, officers were encouraged not to show up to testify at traffic court, or to feign amnesia on the stand.
To those running the investigation, it was less about lost ticket revenue and more about the trustworthiness of officers who would exploit their badges to get around the law and, more concerning, what other lines might they be willing to cross.
So while the investigation culminated in convictions of 15 officers, by the time prosecutors completed the No Fly List, roughly one out of every 50 officers on what was then a 34,500-member force were on it. Many of the hundreds of officers caught up in the probe would eventually face internal discipline, ranging from letters of reprimand to five-day suspensions and the forfeiture of up to 25 vacation days.
Charles Campisi, who ran the NYPD’s Internal Affairs Bureau until 2014 and oversaw the ticket-fixing investigation, said that the department decided which officers’ behavior rose to the level of discipline. But the No Fly List had a different objective. It was an alert system for prosecutors, he said, “for their benefit to be able to say, ‘This case brought by this officer needs more scrutiny.’”
Ten years after the list’s creation, it’s unclear how the Bronx District Attorney’s Office currently uses it and who has access to it. When it was compiled, the Bronx DA was Robert Johnson, who stepped down in 2015 after nearly three decades in office and is now a judge.
Patrice O’Shaughnessy, a spokesperson for the current district attorney, Darcel Clark, who took office in 2016, declined to answer questions about whether the office tracks the cases involving No Fly officers or uses the list when vetting potential prosecutions. Prosecutors, she said, make all required disclosures to defense lawyers.
Whatever the system, it failed spectacularly when Officer Omar Habib took the stand in the Bronx in December 2018. His testimony at Angel Valentin’s gun trial unraveled a seemingly airtight case, raising questions about the efficacy of the No Fly List.
In Valentin’s case, Habib, who’d spent his 11-year career in the Bronx, had gone to a judge for the search warrant, photographed the seized guns and cash, submitted the evidence under seal and swore to the criminal complaint charging Valentin with multiple gun offenses. At the time, Habib had already been disciplined for punching a prisoner in the face in a police station in addition to fixing tickets in the Bronx.
Under cross-examination, Habib gave a series of contradictory answers and disclosures about the case, the chain of evidence and his past disciplinary history — admitting, for example, that he was testifying while stripped of his gun and badge because he was being investigated for using a prohibited chokehold. (The chokehold was among dozens that ProPublica and THE CITY identified in an investigation into the banned practice earlier this year. In an April court filing, lawyers for Habib denied he used the banned chokehold, writing that he “was performing his duties lawfully” when the incident occured.)
The judge, Alvin Yearwood, at one point contemplated using the word “perjury” to describe Habib’s performance on the stand.
“I’m not going to use the word I should be using, but do you see the problem?” he asked prosecutors from the bench.
Valentin, whose case was covered by the Daily News in 2019, was acquitted. His brother and a third defendant, who had previously pleaded guilty, were allowed to renegotiate their deals.
Habib hasn’t responded to phone or email messages seeking comment. (In a March deposition taken in a separate civil lawsuit, Habib said he had testified “several” times as a police witness in criminal cases and described being well trained in police procedures and criminal law.)
Most cases don’t make it to a stage where a judge like Yearwood is hearing testimony about the arrest, so it is rare that the legality of a search or the veracity of an officer’s report is subjected to scrutiny beyond that of a supervising officer or the assistant district attorney processing the criminal complaint.
That’s why the Legal Aid Society wants its defense attorneys to know as much about the officers who arrest their clients as possible before accepting plea deals. For years, the group has worked to track officer credibility by compiling profiles that draw from its own records, as well as court filings, civilian complaints and other sources.
Jennvine Wong, who heads the organization’s police accountability practice, said that while some might dismiss ticket-fixing as small-bore misbehavior, knowing who is on the full No Fly List is essential to the group’s effort.
“The NYPD made such a big deal about broken windows, how small little infractions can turn into an avalanche of bigger issues with larger, more violent crimes,” she said. “Well, apply that same logic to officer misconduct then.”
‘Many Inconsistencies, Both Major and Minor’
Over the last several years, the role of prosecutors in enabling police misconduct has drawn increasing scrutiny from criminal justice reform advocates and their allies in local and state legislatures.
In New York City, where each borough has its own district attorney, Brooklyn District Attorney Eric Gonzalez has gone further than his counterparts in ensuring the integrity of criminal cases and the police officers behind them. His office has publicly blacklisted seven police officers, barring them from testifying, and, earlier this year, it released more than 10,000 documents containing officer misconduct histories.
Most of the city’s other district attorneys have recently released their own internal lists of officers who have been deemed not credible, though only after reporters and lawyers sought them through open records requests and lawsuits.
The No Fly List, though, remains under seal. In 2012, at the request of lawyers for the indicted ticket-fixing officers, a Bronx judge issued a gag order blocking the list from being publicly distributed.
And the fates of the officers involved underscore the reality that the NYPD is almost always the ultimate arbiter of its officers’ conduct. Whether questions about credibility arise from a judge, a prosecutor, a lawsuit or the city’s own Civilian Complaint Review Board, what, if anything, happens to an officer is almost always decided by the NYPD.
A Police Department spokesperson, Al Baker, said that while names of officers come up in any investigation of suspected misconduct, that is not on its own “a determination of guilt or wrongdoing.”
He said that “some officers are removed from their current assignments upon recommendation” of a committee composed of four police officials who review instances in which a judge or prosecutor had decided an officer isn’t credible.
The NYPD said in 2015 that it had begun to also add civil lawsuits filed against officers to an internal tracking system, though the federal monitor overseeing court-mandated reforms wrote in a report last year that the department has only reached “partial compliance” incorporating lawsuits, credibility findings, declined prosecutions and other data into it.
NYPD guidelines released earlier this year state that being the subject of disciplinary action “may also have an impact” on future assignments and promotions. But in the NYPD, commanding officers have wide latitude to assign officers to particular units or neighborhoods. And for some promotions, most notably to become a detective, commanders have considerable discretion as well.
Half of the 164 No Fly officers currently on the job were promoted in the decade since they were first flagged, most of them to detective.
Among them: Dennis Westbrook, Fabio Checo and Jason Fernandez.
All three officers were on the No Fly List. All three are now detectives. And, in two separate rulings, in gun possessions cases from 2014 and 2015, judges wrote that they couldn’t believe them after lawyers for the men they arrested challenged their police work in court and moved to have the evidence against the defendants thrown out.
In Westbrook’s case, a written decision by a judge in Brooklyn obtained by ProPublica sheds light on a failed prosecution that had been sealed.
In the case, the officers, all part of a gang squad, claimed they had pulled over a BMW one night because they observed a backseat passenger smoking a joint. During a search, they found a gun in the wheel well of the trunk. But the judge, Ruth Shillingford, makes clear in her decision that she had trouble believing Westbrook and his two fellow officers’ account of the stop and subsequent search, writing that “there were many inconsistencies, both major and minor” in their testimony about the December 2015 incident.
Shillingford found there was no reasonable suspicion for the stop and thus the gun recovered during the search was out as evidence. The decision makes no mention of Westbrook’s past involvement in the ticket-fixing case. Records obtained by ProPublica show he was placed on the No Fly List after investigators learned that other NYPD officers failed to file a ticket that had been issued to Westbrook in the Bronx. Westbrook, who has been on the force for 13 years, hasn’t returned phone and email messages seeking comment.
A year earlier, U.S. District Judge Laura Taylor Swain ruled that Checo and Fernandez, who were both disciplined for their roles in the ticket-fixing case, improperly obtained a search warrant, withholding key information from the judge who issued it, and thus tainted the weapons they recovered as a result.
She also found the defendant’s mother’s “testimony more credible than that of the officers,” and agreed that the woman hadn’t given the officers permission to search her apartment.
“The reckless or negligent conduct of the officers here is the type of conduct that can, and should, be deterred by application of the exclusionary rule,” Swain wrote.
Fernandez didn’t respond to an email sent to his NYPD account, and several numbers listed for him weren’t in service. Checo hasn’t responded to a text and email message seeking comment.
With no evidence against the defendant, prosecutors abandoned the case.
This article was originally posted on NYPD Officers on a Secret Watchlist Jeopardize Prosecutions