Gideon Oliver: “This was really something new in terms of the police departments trying to appear and act as prosecutor in these cases.”
Civil rights attorney Gideon Orion Oliver on his fight to roll back a policy that allowed the NYPD’s legal bureau to prosecute Black Lives Matter protestors, and the structural problems that still endanger the civil liberties of activists
Civil rights lawyer Gideon Orion Oliver (@gideonoliver) has been at the forefront of criminal justice reform efforts around civil liberties protection since 2004 when he worked as a legal observer during the Republican National Convention. Shortly after, he began working as an attorney, defending the rights of protestors. A solo practitioner, Oliver has also worked in concert with other firms, and was a key figure in fighting a policy enacted by the Manhattan D.A. Cy Vance’s office that allowed attorneys from the New York Police Department’s legal bureau to act as prosecutors, particularly in cases involving Black Lives Matter protestors.
In 2016, Oliver represented Cristina Winsor, an activist who had been arrested at a Black Lives Matter protest, and filed a suit against the city of New York in order to curtail the practice. The D.A.’s office, under pressure from the case and facing other public appeals to end the policy, eventually rescinded the memorandum of understanding that formalized it in the first place.
New Yorkers for Justice spoke to Oliver about his role in the case, the systemic problems that still exist with regard to how the NYPD and the D.A.’s office treat protestors, and what still needs to be done to ensure that the civil liberties of protestors are protected.
New Yorkers for Justice: Let’s talk about the case of Arminta Jeffryes and Cristina Winsor, who sued the city in 2016 in order to put an end to a policy initiated by Manhattan D.A. Cy Vance’s office that allowed NYPD legal bureau attorneys to act as prosecutors. As Ms. Winsor’s attorney, can you tell us a bit about how the case came about and how it impacted policy?
Gideon Oliver: Okay, so in New York, the office of the district attorney of New York County has a longstanding practice of not standing up on summons cases. There are obviously a lot of cases, criminal cases, that are prosecuted by summons in New York, and there are specific court parts that are either exclusively or partially dedicated to hearing summonses. In all of the cases, the D.A.’s office does not hear them. The issuing officer who wrote the summons ends up appearing and the judge or judicial hearing officer who presides over the case will ask them questions.
The defense lawyer has the opportunity to cross-examine them and there’s not a prosecutor who’s involved in those cases. That was the case until mid-to-late 2015 when lawyers associated with the National Lawyers Guild began to see attorneys from the police department’s legal bureau, trying to appear in summons cases, primarily against Black Lives Matter protestors, and trying to act as prosecutor in those cases. It was something that I had only heard of once before, when the police department tried to do something like this or thought about trying to do something like this, in connection with Occupy Wall Street, but ultimately backed off.
So this was really something new in terms of the police departments trying to appear and act as prosecutor in the cases. And at that point, it seemed it was just an informal practice. And individual lawyers from the guild who were representing protestors in these cases challenged it on a case-by-case basis, but there wasn’t like a policy document that we could point to and attack until February of 2016, when Manhattan District Attorney Cy Vance’s office entered into a written memorandum of understanding with the NYPD, the NYPD legal bureau. And the memorandum of understanding gave or purported to give the police department the authority to prosecute summons cases and to defend appeals in summons cases.
Around January of 2016, just before this MOU came out, the head of the legal bureau of the police department complained that people the police department considered “professional protestors” were having their cases dismissed in summons court, which paved the way for them to be able to bring civil suits and get settlements or win cases against the city, and then head of the legal bureau said they were trying to put some teeth into issuing the summonses by having the legal bureau attorneys prosecute the cases.
So after the memorandum of understanding was issued in February of 2016 at a Black Lives Matter action in March, my client Cristina Winsor was issued two summons, one for disorderly conduct and one for a vehicle and traffic law violation, walking along and upon a roadway when a usable sidewalk was available. And another person, Arminta Jeffryes was issued a summons for jaywalking.
And the legal bureau for the police department under this memorandum of understanding came in to prosecute those cases, so my colleague, Martin R. Stolar represented Ms. Jeffryes and I represented Cristina Winsor in making motions in the summons court to try to get the legal bureau prosecutor disqualified.
We were initially unsuccessful and in September of 2016, New York City criminal court judge denied our applications in the context of those two cases to have the police department be disqualified from prosecuting, and we then brought an article 78 lawsuit in New York State Supreme Court to challenge the memorandum of understanding and the delegation.
Basic arguments were, one, that the delegation was legally impermissible. The prosecutor didn’t have the authority to delegate its responsibility and authority to prosecute cases in the police department. And, two, even if that authority in general did exist, delegating it to the legal bureau of the police department — which already had a legal and ethical responsibility to represent the police department, individual police officers, etc. — created an impermissible conflict of interest.
So those are the two main arguments in the lawsuit, and as we pursued the lawsuit, we also continued defending the criminal cases as they were on their way through the summons court system.
Ultimately, the police department and the D.A.’s office made a motion to dismiss the lawsuit, which they lost. The judge, New York state supreme court justice Lucy Billings, wrote us a 20-page decision declining to dismiss the lawsuit on the papers, and essentially saying that if what we said in the pleadings in the lawsuit was true, we had stated claims, based on which the court could ultimately grant us relief.
That was in September. In December, the NYC Bar Association’s criminal justice operations committee wrote a policy statement recommending that the practice be examined for conflicts of interest or abuses of authority that had some very strong language about the potential conflicts and problems with the delegation.
But in the meantime, the police department kept prosecuting these cases and in fact, Cristina Winsor, my client, went to trial on one of two cases that she had going at the time, and that was a two-day trial, a violation-level trial with no jury, just before the judge, and the judge acquitted her of both charges. And [my colleague] Marty’s client, Ms. Jeffryes had a more than two day jaywalking trial, and the judge ultimately convicted her of jaywalking.
Then in March of 2018, the police department and the D.A.’s office ultimately rescinded the memorandum of understanding. You know, they have their own things that they said publicly about why and how that happened, but in terms of the understanding, you know, it was right after [Assemblymember] Dan Quart wrote the letter that went to the D.A. Vance’s office, talking about Cristina Winsor and the Arminta Jeffryes cases, about some of the problems with the delegation and the conflict of interest. And he was joined by a number of other lawmakers — mostly state lawmakers, but there was yeah, there was a local council member who was also on the letter.
And it was a very short time after that letter was sent that the police department and the D.A.’s office announced that they would be rescinding the memorandum of understanding and ending the delegation. And that mooted what was going on in Article 78 that we had going, so we stipulated to dismissing the lawsuit.
So this practice of letting NYPD legal bureau attorneys act as prosecutors was happening before memorandum of understanding was issued?
Yes.
Was there any pushback?
Well, the pushback came from some of the lawyers who were the usual suspects in defending protestors in these cases, when they noticed that legal bureau attorneys were showing up. And Sam Cohen was the first that I’m aware of who started to deal with these cases, and he immediately challenged the practice in the context of his clients cases by making applications to the judge sitting, who was in Midtown Community Court at the time, to challenge the delegation.
And then he also began talking with others of us who at that time didn’t have clients who were similarly situated because there were only a few instances where the legal bureau was trying to do this. And again, they didn’t have an MOU that we could point to to challenge. They were in court on these cases and they saw the legal bureau attorney show up and try to prosecute them.
What was the strategy behind formalizing the practice via a memorandum of agreement?
Well, I’m not sure there was ever an explanation that was given for why the police department and the D.A.’s office reduced the practice or delegation to writing. I can only surmise that it was in response to the legal challenges that Sam Cohen and by then some others were mounting. And part of it they were pointing to was provisions of the county law, various provisions of the law, some of which mentioned written delegations.
So I’d only be guessing, but it was in January of 2016 that the deputy commissioner of legal matters was quoted in The Daily News as saying they were issuing these summonses and engaging in this practice to put more teeth in issuing summonses. And it was February that the MOU was signed.
There was also no public justification. Both the police department and the D.A.’s office offered to the court various reasons why both agencies would want to do this. And one of the chief reasons was a lack of prosecutorial resources. The D.A.’s office essentially said we can’t deal with these cases. And if they were talking about all summons cases, that might fly. There are lots of summons cases. One rationale has to do with not wanting to have prosecutors who have to deal with summons cases all the time.
So that makes a certain amount of sense, but the cases where the legal bureau was seeking to prosecute were overwhelmingly if not exclusively Black Lives Matter activists, their protest cases, — and there were relatively few of them. I mean over the whole period the MOU was in effect, I would be surprised if there were more than 20 total cases that the legal bureau sought to prosecute, and they were, again, almost all if not all, Black Lives Matter protestors or other protestors and activists.
The cases where the legal bureau was seeking to prosecute were overwhelmingly if not exclusively Black Lives Matter activists, their protest cases, — and there were relatively few of them.
So the argument that the D.A.’s office didn’t have the resources to deal with 15–20 protest cases over the course of year or two is pretty laughable. I mean they certainly do.
And that was sort of the main justification. There was another justification the police department and the D.A.’s office advanced, which was that essentially it’s in everybody’s interest to have these officers as well prepared as possible for these cases, which sometimes involve video evidence and other things that don’t necessarily come into play in your typical (like, public urination or other) case that would show up in summons court.
And that argument never made sense to us, because the legal bureau attorneys were already involved in preparing officers, or could always be involved if they wanted to in preparing officers for trial. Their lawyers for the police department, that’s part of what they’re there for. So they don’t need to be prosecuting the cases in order to prepare the officers to be witnesses in trial.
How did you become involved in Ms. Winsor’s case? And how many of the protestors you mentioned had representation?
The memorandum of understanding required the police department to submit basically these monthly stat sheets to the D.A.’s office indicating how many cases they sought to intervene in and act as prosecutor in. And they contained some other information about those cases.
So we submitted freedom of information [FOIL] requests to the police department and the D.A.’s office for the documents, and that’s how we ultimately sort of tried to get our arms around how big this practice was in terms of numbers.
Everybody who goes to summons court gets appointed an 18B lawyer. Dan Quart does that in Midtown, and I do it in Midtown and summons court a fair amount as well. So ultimately, every one of those people has representation, but the reality of summons court practice is if you have a case, and you’re not tuned into this issue, and a lawyer from the legal bureau shows up to prosecute the case, nine and a half times out of ten, you’re not going to have the ambient legal knowledge about the provisions of the county law and other provisions of the law you might use to challenge the practice.
Also, the stats the D.A.’s office got from the police department were not all cases where the legal bureau was successful in prosecuting them. They were only the cases that the legal bureau had flagged for them to be involved in, and on some of them for whatever reasons, they weren’t able to stand up on the cases. Maybe the person didn’t show up on the first court appearance, and they warranted and they came back on their own, and legal bureau wasn’t tuned into it, so it slipped through the cracks or whatever.
The way I got involved is, since the Republican National Convention in 2004, I’ve been involved with the National Lawyer’s Guild, NYC chapter, and first as a legal observer when I was still in law school, legal observing during the 2004 RNC, then pretty much as soon as I was able to practice, I began defending protestors in criminal defense context and also doing civil rights litigation around arrests that had occurred at protests. I’ve done that ever since.
So I do a lot of volunteer work with the NLG NYC representing people at arraignments in protest cases. And that’s how I ended up representing Cristina Winsor and that’s how Marty ended up representing Ms. Jeffryes.
I think there had been some press around the pushback that our clients had been getting. And I should back up and say that Cristina Winsor and Arminta Jeffryes and other people who plead not guilty and came back to court over, and over and over again to fight the charges, were really the absolute leaders in all of this. And I’m happy to accept some responsibility for playing my part in the struggle just like I’m sure Marty is in terms of being a legal ally, but its as really a client-led and client-centered struggle.
I think they recognized how dangerous and prejudicial this practice was and would be if it was allowed to go unchecked, and so they’re the people who deserve the lion’s share of the credit and took the lion’s share of the risk, although certainly the lawyers did a fair amount of work.
At a certain point the city bar association took a very hard look at the practice and issued what was a very good, from our perspective, policy position statement.
And the first time I met Dan [Quart] was at court when Marty’s trial was going on. I was impressed that he was there in the trenches as it were, doing the same work. And he was rightly upset at the fact of the delegation and what the police department was doing, but more so I think that Vance’s office endorsed the practice, thought it was a good idea, was really abdicating its responsibility to do the prosecutions, to have oversight of the prosecutions in all kinds of ways.
So when [Dan’s] letter came, I thought it was a very strong indictment of what Vance was doing, and of the practice. And certainly the pressure that we were putting on through the litigation, through very vigorous criminal defense, the amount of papers and court appearances that went into these low level violation cases was significant.
And there was media interest and we were certainly trying to impact Vance and the police department. And there was no sign that Vance’s office or the police department really cared that much. They weren’t talking about stopping.
There was no sign that Vance’s office or the police department really cared that much. They weren’t talking about stopping.
They slowed down a significant amount in terms of the new cases they were trying to prosecute, but they were vigorously defending against the lawsuit in state supreme court, while all this was going on. And so I think one can only assume from the timing that the letter from Dan and the other legislators was something that Vance’s office and the police department was able to hear in a different way than they were able to hear our concerns, if that makes sense.
Did you think about reaching out to legislators yourself?
That’s usually more client thing than a me thing, I’m a solo practitioner and these kinds of cases are very time and energy consuming — the way I do them, at least. I mean certainly in the abstract it occurred to me, but I was always much more focused on I’ve got to get this next set of papers in order, I’ve got to do another FOIL request to get these new stats.
What made Ms. Winsor and Ms. Jeffryes such ideal clients for dealing with these issues?
A lot of times when protestors get arrested and issued summonses by the police department, what typically happened when they showed up in court was the case would be dismissed because the police had made some sort of error in writing the ticket and it wasn’t legally sufficient, and we can make a legal argument to the judge to get it dismissed, or they’d be offered what’s called an ACD, where you don’t plead guilty and the prosecution doesn’t have to prove the case. It’s simply taken off the court’s calendar for six months and then automatically dismissed and sealed as long as you’re not arrested or given a summons in that six month period.
That was the typical offer in these cases from judicial hearing officers in summons court of judges in Midtown community court.
When the police department started prosecuting the cases, they started offering ACDs only if the defendant would allocute, meaning they’d admit they’d engaged in the specific conduct they were charged with, and I can only speak for Ms. Winsor’s case, but she didn’t want to do that because she didn’t do what they said she did.
And that’s a common experience that protestors have in these kinds of cases, where even if they maybe did something that was wrong or — not wrong, but not something within the letter of the law, like spilled briefly into the roadway when protesting on the sidewalk, and got back onto the sidewalk when ordered by a police office — if they ended up getting arrested, frequently they’d find themselves charged with doing specific things that they definitely didn’t do.
So one thing, and I think a big thing Cristina brought to the table, was the conviction she wanted to do what she could in the context of the situation she found herself in with these criminal charges to push back against this practice.
And some people feel that way in the beginning, but by the sixth court appearance, they’re ready to get off the ride, you know, and both Cristina and Arminta stuck with it all the way through their own criminal trials and were prepared to stick with it through the civil litigation process in the article 78 suit that we had going on. So that kind of persistence and conviction over such a long period of time — the moral conviction really was extraordinary.
So what issues did this raise for you about how the D.A.’s office is prosecuting these minor offenses its relationship with NYPD?
As long as I’ve been practicing law, a pernicious and persistent problem with the police department and protest cases is some version of the following: When the police make arrests at demonstrations, unlike in most normal arrests, there is an attorney from the legal bureau who’s involved in the arrest processing. So in other words, if the police arrest somebody for marijuana possession on the street and they bring them back to the precinct, when they put together the arrest processing paperwork and write down what they observed, where they recommend what charges should be brought, etc., and the paperwork gets forwarded to the prosecutor. They typically do that themselves or they have a supervisor help them, and there’s a supervisor involved in the process or something, but typically the attorneys from legal bureau are not involved in those cases.
But at least since around the Republic National Convention in 2004, the police department has legal bureau attorneys who are typically involved at the precinct or the arrest processing location, and they say assisting the officers in articulating the charges, but as a practical matter what ends up happening in many of those cases is that the arrest processing paperwork ends up being created where the officers say they saw things that they didn’t in fact see.
What ends up happening in many of those cases is that the arrest processing paperwork ends up being created where the officers say they saw things that they didn’t in fact see.
It’s a persistent problem that the D.A.’s office has been aware of certainly throughout Vance’s tenure and was a problem when Morgenthau was in office, a problem that Vance inherited, and around the RNC in 2004 that the police department wanted to get rid of the step in the process where the cops would have to go in and speak with prosecutors and tell them what they saw, and have prosecutors write up the accusatory instruments. But Morgenthau’s office said no, we have to have a vetting process where the officer comes in and they say I saw x-y-z.
So that happened after the legal bureau attorneys had already spoken with the officers and they’d written up their arrest processing paperwork, then they’d go in and meet with an individual prosecutor who’d draw the case up. And in the RNC in 2004, there were a couple hundred people charged with parading without a permit, disobeying a dispersal order. They were basically assigned in groups of five to arresting officers who’d say and swear,
“I saw them do x-y-z”, when in fact they hadn’t.
This has been a persistent problem over the years with the police department, especially in large scale arrest situations. The police department came up with special policies and practices for large scale arrests were officers could only handle up to five arrestees and where they’re supposed to take what used to be Polaroids. Now it’s digital pictures at the back of an arrest wagon in order to keep the assigned arresting officer together with the person whose arrest they’d been assigned.
But frequently as a result of this process, officers would put things in their paperwork and in some cases, eventually in the charging documents that just wasn’t true about what they had observed. In some cases it was objectively true, like the protestor sat down and locked arms with somebody or something, but just because it happened doesn’t mean in order to prosecute, officer x can lie and say I saw that person sit down, lock arms, etc. if they didn’t.
That is the difference between being able to prosecute the case and not being able to — having someone who’s the observing officer at the end of the day, so that is a pressing problem in my opinion and experience that has not gotten better with the insertion of legal bureau attorneys into the sort of pre-prosecution process. It’s only gotten worse in many ways or at least stayed about the same.
Why is that?
I have lawsuits against the police department where the officers have admitted during the course of processing the arrest, “they told me what to write down.” In some cases officers even produced a sheet that said, “I observed blah blah blah.” And listen, there’s no problem writing that down if it’s in fact what you observed, but if somebody hands that to you to put in your arrest processing paperwork and it’s not what happened, you can’t put that in there or you’re doing something that’s at least a violation of department policy, and that can be considered illegal.
It’s certainly illegal if it gets to the point where it ends up in a criminal court accusatory instrument. So the prosecutor’s office should be a bulwark to prevent that from happening or to reduce the frequency with which it happens.
And because of the nature of large scale protests and arrests, it’s something that happens in those contexts — I’m not going to say necessarily more than it happens in other contexts, but certainly there’s something about the design of the way the police department does large scale arrest processing that increases the likelihood it’s going to happen.
And the D.A.’s office knows it. I mean certainly if Vance’s office didn’t know it when he took office, he was there throughout Occupy Wall Street, and this was certainly a big issue then.
So to enter into the memorandum of understanding as this office did and further abdicate the responsibility in these particular cases to make sure that didn’t happen was a particularly egregious failure of responsibility.
So what’s the next step in fixing this problem?
Two things immediately come to mind. One is, as with all other cases, prosecutors have discretion about what to charge, and in protest cases there’s a few run-of-the-mill protest charges. Some of them are violations and some of them are misdemeanors, and very few of them are felonies, but some are felonies.
Like Morgenthau’s office before him, Vance’s office overcharges and that’s also true in protest cases. So perhaps his office is looking at charging a disorderly conduct refusal to comply with the dispersal order charge, which is a violation, if they can also throw in a misdemeanor obstruction of government or administration charge based on the same conduct, they frequently will in order to get leverage over the protestor.
And what then ends up happening from the criminal defense perspective, is instead of saying, if you take this case to trial and you lose, you face up to 15 days in jail and a fine that’s not necessarily going to break your bank account, and you won’t have a criminal record. Worst case scenario, you’ll end up doing 10 days in jail. You end up doing two-thirds of the time — you end up doing 10 days in jail if the judge threw the book at you.
And I’ve never seen that happen.
Once misdemeanors charges are in play, you’re talking about criminal charges obviously, and you’re talking about either six months or a year in jail as potential penalties, and some judges do put people away from some period of time in protest cases when there are those charges involved. So overcharging is one thing.
And the other thing is there is such a demonstrated history of problems with the NYPD’s arrest processing and large scale arrest processing that lead to individual officers saying they saw or did things that they didn’t see or do, that the D.A.’s office should be looking at these cases with more skepticism. And certainly that’s not something that I have seen Vance’s office do.
There is such a demonstrated history of problems with the NYPD’s arrest processing and large scale arrest processing that lead to individual officers saying they saw or did things that they didn’t see or do, that the D.A.’s office should be looking at these cases with more skepticism.
It would be one thing if it were just some defense lawyers who were running around saying the cops are doing this, the cops are doing that, which maybe 15 years ago you could have said, that’s what was going on. But over the years this has been a persistent enough problem and it’s reached the level of becoming a part of public discussion enough that Vance’s office should know better than to just take the police at their word in these kinds of cases.
I’m not saying like that the Manhattan D.A. should say, we don’t believe you, police officers, but in nine of ten cases, when you have an officer coming in and saying he saw the five people whose arrests he was assigned do exactly the same thing and you know, engage in exactly the same conduct, and that officer has gone through this large-scale arrest processing procedure where they met with an attorney from the legal bureau… they’ve had some assistance, is one way to put it. Coaching would be another way to put it, in terms of articulating what they observed, and there should be a certain amount of skepticism that goes into the vetting process the D.A.’s office has for those cases.
There are a few times I can think of where that has happened and where prosecutors in the early case assessment bureau, ECAB, interview officers, look at their paperwork. It says I saw x-y-z and they interview the officers vigorously enough to determine that’s not in fact what happened. That’s not in fact what they saw.
And in some cases, those cases have ended up being declined to prosecute. But the fact that that’s happened in a few cases is really an exception, and it should be more than an exception.
So what can the public, activists, and organizations do to be helpful?
I think the answer is people can stay in the streets, and people can keep protesting, and if that means they’re going to end up getting busted, and they have to go through this process, then so be it. I think one of the major problems with the fact that these cases are prosecuted the way they are is the chilling effect the prosecutions can have on activists and they can have on people.
I think one of the major problems with the fact that these cases are prosecuted the way they are is the chilling effect the prosecutions can have on activists and they can have on people.
At the end of the day, what we’re talking about is that in 95% of the protest cases, we’re talking about are people who were charged with disorderly conduct for allegedly creating some blockage of traffic. And usually it’s not an extremely significant blockage of traffic. We’re not talking about sitting down on the FDR and snarling it. We’re talking about trying to take a lane in protest or something like that.
And this is what people typically think of as a fairly common protest march kind of conduct. The same way the D.A.’s office has made a determination that it’s not going to be involved in many different kinds of low level summons prosecutions, the D.A.’s office as a matter of policy could take different approaches to these kinds of protest cases. Not overcharging would be one approach, but the D.A.’s office doesn’t need to pursue these cases at all.
Not overcharging would be one approach, but the D.A.’s office doesn’t need to pursue these cases at all.
The police department can issue these people summonses if they want to. The D.A.’s office can decline to prosecute cases. They have the authority and discretion to do that if we’re talking about what I’d call a vanilla protest case. Those are all responses that are within the D.A.’s broad discretion.
Where I see most of the power is in people exercising their rights in the streets, and then when the government abridges them, having allies step up in order to provide support — like NLG lawyers, NLG legal workers, legal workers and lawyers providing legal support on the streets and in the courts. I think those are important.
The Jeffryes case is just so baffling to a lot of us because it’s jaywalking in New York and it seems ridiculous. What else are you seeing that strikes you as an egregious issue that needs to be addressed?
Cash bail. I think if I had to pick one of the many issues, I think ending cash bail and addressing the incredibly racist, classist, and otherwise unfair system by which bail is set. That would be a good place to start.
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