When police commissioner Howard Safir testified on March 31 before a joint committee of the State Assembly looking into the release of Patrick Dorismond's arrest records, he had this exchange with Brooklyn Democratic assemblyman Jim Brennan:
"If Mr. Dorismond had been only seriously wounded and not killed," Brennan asked, "it is your position that you could not have released his records?"
"Yes," Safir replied.
Brennan: "So if a person is seriously wounded and not killed . . . you could not release that record."
Safir: "Not according to the lawyers' advice."
So much for lawyers' advice.
The Giuliani-Safir defense of the release of Dorismond's records -- that privacy rights expire with you -- is, as we shall see, spurious to begin with. But even that policy is not followed. On at least two occasions while Giuliani has been mayor and Safir commissioner, sealed juvenile records of teenage victims of police shootings have been leaked to the press when the victim has not died. Both, today, remain very much alive.
The first case, dating from August 1998, involves Michael Jones. Then 16, Jones was shot six times in the legs by two police officers. He was riding his bike in Bed-Stuy around 2:30 a.m., waving a realistic-looking weapon that in fact was a water pistol. Police said Jones refused to drop the toy weapon. Other witnesses disputed this. Whatever occurred, Jones was shot on August 23. An August 25 Times story on the case includes the following sentence: "But yesterday, a police official who spoke on the condition of anonymity said that Michael had been arrested in June for the sale of marijuana, but that the record had been sealed."
Two points: First, note that Jones had been arrested, not convicted; in the event of an acquittal or dismissal, an arrest record is supposed to remain sealed. Not leaked and described as sealed. Sealed. Second, according to spokesman Kevin Davitt, the Brooklyn D.A.'s office has no record of this arrest in its computers. If a district attorney's computers have no record of a charge, that means it was in all likelihood a juvenile matter handled in Family Court. That, in turn, means it's sealed. Even Joe Hynes, the D.A. who in theory might be prosecuting this young man for something else in the future, is not supposed to know it ever happened.
Why did the mayor say he had authorized the release of Dorismond's records on advice of counsel when the city's chief lawyer said he didn't provide any legal advice until after the records had been released?
The second case stems from May 1999 and involves then-16-year-old Dante Johnson of the Bronx. Approached by officers from the Street Crimes Unit who suspected he had a gun, Johnson fled. He had no gun, but police caught up with him, there was a struggle, and Johnson was shot in the abdomen. One Times article reports that "police officials said Mr. Johnson has a sealed criminal record and had been on probation for a grand-larceny arrest stemming from an incident involving a stolen wallet just before he turned 16 in April." Again, the Bronx D.A.'s office, says spokesman Steven Reed, has no record of this matter. NYPD spokeswoman Marilyn Mode says that "it was actually his mother" who released Johnson's record by speaking about it to a Post reporter. But two Times accounts, from May 27 and 28, appear to rely on police sources, and Sanford Rubenstein, Johnson's lawyer, contends his client was never on probation.
There are two things to say about the controversy over sealed records. The first is that, though most of us just discovered the problem, people who toil in these fields have been vexed by it for some time. "In the last couple of years especially, we've become aware of extensive violations of the sealing statutes," says Susan Hendricks of the Legal Aid Society. She contends that it's become common in both immigration proceedings and New York City Housing Authority cases that information from supposedly sealed case files somehow finds its way into the court or hearing room.
The second thing to say is that it's far from over. The State Assembly is preparing a report and looking for answers to questions like these: Why did Mayor Giuliani say he had authorized the release of Dorismond's records on advice of counsel when Michael Hess, the city's chief lawyer, testified that he didn't provide the mayor with any legal advice until after the records had been released? And under what legal authority did Safir act? While testifying, Safir acknowledged that he was not operating under any existing statute but in accordance with a 1986 memorandum issued by NYPD lawyers saying that sealed records "can be used for law-enforcement purposes." Safir said he would provide the Assembly with a copy of the memo. As this goes to print, he has not. The Assembly is likely to refer its report to Manhattan D.A. Robert Morgenthau.
Also, a State Supreme Court judge will hear arguments this week on a request by Public Advocate Mark Green for an official judicial inquiry into the release of Dorismond's records. A reading of Green's brief leaves one quaking before the mountain of legal precedents that appear to make it clear that the administration flouted the law here. Most notably, there is a decision by the state Court of Appeals, New York's highest court, holding that the Family Court Act provisions under which juvenile records are sealed are designed "to preclude access by those, especially in government and bureaucracy, who might otherwise prejudicially use rightfully protected information." If that doesn't mean the mayor and the police commissioner in the wake of a shooting, trying to smear a victim's reputation, it's hard to imagine who it means.
Jones and Johnson paid quite a price for being young and black and acting suspiciously. Rubenstein says Johnson had fifteen or sixteen surgical procedures, still walks with braces, at one point was on a respirator and kidney-dialysis machine, and had a colostomy and tracheotomy. Bronx D.A. Robert Johnson has yet to convene a grand jury to look into his shooting. As for Jones, his lawyer, Michael Hardy, says, "It looks like he'll be able to walk" after four months in the hospital and eight or nine surgeries (he's about to sign a civil settlement). Both young men are back pursuing their schooling, in a city whose citizens know things about them that they have no legal right to know.