Judge issues split ruling on rift between prosecutors and police on personnel files

Jonathan Bandler
The Journal News

Westchester prosecutors are not entitled to the personnel files of police witnesses as they prepare their cases for trial, a judge has ruled.

But Westchester County Judge Helen Blackwood did order police to answer a controversial new question about their work history.

The ruling was a partial victory for police unions, who argued that existing state law protecting police privacy rights was not superseded when the state legislature enacted new rules for turning over evidence to the defense in criminal cases.

Westchester County Courthouse, White Plains

PROSECUTORS: DAs clash with police unions on records access

CREDIBILITY: List of police with credibility issues released

The issue arose in January on the eve of trial for a 17-year-old charged with manslaughter in the fatal shooting of another teenager near St. Joseph's Hospital in Yonkers. Prosecutors concerned that they could not certify compliance with the discovery rules obtained subpoenas for the personnel files for more than 30 Yonkers cops and a Westchester County detective.

That's because the cops had refused to answer new queries on a questionnaire long used to determine if a police witness had credibility issues that had to be disclosed to the defense.

The unions felt that a question about any civil lawsuit the officer had faced in prior cases was overly broad. But the bigger problem was the final question: Is the witness aware of any other administrative, personnel or civilian complaints implicating the witness'  honesty and integrity?

Lawyers for the unions argued that, while the new discovery law sped up the prosecution's disclosure obligations, it did nothing to alter the specific things that police had to disclose. And if the legislature had wanted police to have to turn over more information, they would have amended Civil Rights Law 50-a, which strictly limits the availability of police records. 

The law requires that if officers do not consent for records to be released, a court hearing must be held and there must be a finding that specific details warrant a review of the records by the court.

Westchester County District Attorney Anthony Scarpino Jr. speaks on Feb. 20, 2020.

But the District Attorney's Office argued that the unions were ignoring another section of that law: that prosecutors have "an unqualified right of access" to the information.

At the request of prosecutors, Blackwood issued the subpoenas for the personnel records in mid January and also an order requiring the potential witnesses to answer the questions. She put the issue on hold while the unions challenged the subpoenas and the order.

The DA's Office eventually added a third option besides "no" or "yes": that the officer declined to answer based on the state law that protects their privacy. That led officers to resume answering the questionnaire, with nearly all checking off the new box.

Blackwood determined that the questions posed by prosecutors were "relevant and wholly appropriate." Her ruling requires the officers to answer either "yes" or "no" on the final question. If all the answers are "no," she found, the prosecution would be in full compliance of their requirement to seek information that might have to be turned over to the defense. If anyone answers "yes," prosecutors could then follow the existing procedure spelled out in 50-a to get that information.

Andrew Quinn, a lawyer for the Yonkers PBA, called Blackwood's decision a vindication of unions' position that police officers "are still afforded the basic protections of (50-a), which protects police witnesses against meaningless harassment while testifying based on information contained in a personnel record."

Prosecutors had expressed feeling some awkwardness as a result of the fight, as they weren't seeking to undermine police and rely on them as allies in the criminal justice system.

"We appreciate Judge Blackwood clarifying our discovery obligations while protecting police personnel records," First Deputy District Attorney Paul Noto said in a statement. "We look forward to working with our law enforcement colleagues to ensure that the defense gets all the information they are entitled to." 

The ruling came two days after Westchester District Attorney Anthony Scarpino angered police unions by making public a list of those officers who have adverse credibility findings, criminal convictions or pending criminal charges.

Quinn said most of the list relates to details that have nothing to do with an officer's credibility and that it was never the legislature's intention to have the new discovery law used "to publicly degrade police officers." He called it a "stark reminder" for why 50-a is important and should be kept.

Twitter: @jonbandler